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Citizenship Forum

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Should EU citizenship be duty-free?

Should EU citizenship be duty-free

By Maurizio Ferrera (Università Statale di Milano)[1]



In the historical process of state formation, citizenship has played a key role for political integration. It has sorted out “insiders” (the full members of the political community) from aliens/outsiders, has conferred to citizens an equal status, regardless of market and other social positions, it has stabilized and generalized compliance, sustained social cooperation, the legitimation of political authority and, last but not least, the formation of cultural and material bonds throughout the population.

With the Treaty of Maastricht, national citizenship has been complemented with a new layer, EU citizenship. It can be said that the purpose of this innovation was two-pronged: on the one hand, to rationalize (symbolically and institutionally) the disordered array of individual freedoms and faculties linked to the EU and its legal order; on the other hand, to create a new recognizable symbol capable of enhancing, precisely, political integration and mutual bonding among all EU citizens, regardless of nationality.

While there is evidence, twenty-five years on, that European citizens do know and value EU citizenship, there is also some disappointment about the latter’s actual effects in terms of integration and bonding, especially in the light of rising Euroscepticism, souvranisme and anti-immigration (including intra-EU mobility) sentiments.

In a recent speech,[2] Rainer Bauböck has raised a challenging question: can the integrative functions of EU citizenship be enhanced and how? In a nutshell, Bauböck’s proposal is that we need to “add stuff” in the container, in order to make it more immediately recognizable and salient to individual citizens and more effective as a bonding mechanism. Two additions are, in particular, proposed by this author: a stronger social component (individual rights and levels of protection that apply universally) and “some duty”. EU citizenship is exclusively centered on rights: “a duty-free citizenship does not support a sense of solidarity and it makes citizens less keen to hold governments accountable”.

I generally sympathize with this argument and welcome an open discussion on this topic. Before outlining an agenda for reform, we need, however, to better articulate the diagnosis and clearly identify the existing flaws of the EU citizenship construct – especially in its social dimension. With this aim in mind, I will start by briefly revisiting the key historical steps and elements of national and EU citizenship. I will then highlight the political shortcomings and perverse effects of the latter and single out the challenges that need to be addressed. The last sections of the note will outline some modest proposals for “adding stuff” to the EU citizenship container, making it more consequential and, hopefully, more capable of integrating and bonding.


A bit of history

Citizenship in the modern sense was born with the French Revolution. The Declaration of Human and Citizens' Rights (1789) identified a series of "natural, sacred and inalienable" rights based on the fact that men are born free and equal. The "political association" is tasked with defending and safeguarding these rights. Thus the citoyen is not only the bearer of natural rights, but also of state-backed guarantees for the exercise of such rights. During the nineteenth century, the pre-eminent political association became the nation (the nation-state). Membership of this entity began to be called nationality. With the advent of mass democracy and the welfare state, "nationality" became the first filter for the exercise of the rights of citizenship and, prior to that, for the very legitimacy of a person’s presence on the state territory. In the sense of "nationality", citizenship assumed the role of "assigning people to states",[3] giving them the "right to have rights"[4] and participation in collective decisions.

Historically, the contents of citizenship/nationality appeared much earlier than the container. State formation was a slow process. For ordinary people, it essentially meant becoming subject to novel duties: paying taxes and serving in the army. Mass conscription was a key element of nation-building. It contributed to turning states into fully fledged political communities, sharing an identity and a sense of “destiny”, with high symbolic charges as it implied the possibility of mutual sacrifice. Territorial borders came to be perceived as “inviolable” national boundaries to be defended usque ad effusionem sanguinis. Bounding promoted bonding, which in turn generalized and strengthened the affectual and normative loyalty vis-à-vis state authorities and their binding decisions. The link between taxation and nation-building was less strong. Up to World War I indirect taxes remained by far the most important source of state revenue. Personal income taxes were legally introduced between the end of the nineteenth and the beginning of the twentieth century but only acquired quantitative relevance in the second half of that century. The words for taxation used in Northern and Southern Europe testify that its impact on social solidarity and political legitimation varied greatly: think of the Scandinavian ska/skatt (which also means common treasury ) vis-à-vis the neo-Latin terms impôt, imposta, impuesta (which evoke a subtraction).

The introduction of social entitlements as subjective rights greatly enhanced the material salience of citizenship. But it also imposed new duties. In “Bismarckian” systems based on compulsory insurance, there was a programmatic link between contributions and benefits from the very beginning. In tax-funded, universalistic systems the link remained weaker. But in the UK, for example, the sense of civic duty and reciprocity was so strong that when the means-tested pension was introduced in 1908, elderly ladies in the countryside brought flowers and food to the post officers who once a week paid them a “free” allowance.

During the Trente Glorieuses, the link between the duties and rights of citizenship (especially social rights) started to weaken. This phenomenon was noted as early as in 1950 by T.H. Marshall himself, who observed that in the UK citizenship was increasingly invoked for the defense of rights, ignoring “the corresponding duties … [which] do not require a man to sacrifice his individual liberty or to submit without question to the demands made by government. But they do require that his acts should be inspired by a lively sense of responsibility for the welfare of the community”.[5] Such sense of responsibility has been constantly eroding since the 1950s, especially within the “middle mass” of employees and pensioners. The growth of social spending has been accompanied by an increase of taxes and contributions. But since the 1990s survey evidence has shown that the vast majority of citizens think that they pay far too much for the benefits they receive – which they consider as untouchable entitlements and property rights. When the Italian trade unions supported the first reforms of a hugely unbalanced pension system in the early 1990s, on various occasions workers hurled iron bolts at their leaders: a striking departure from the times when old ladies brought flowers to the post office.

The welfare state has indeed been retrenched in the last couple of decades and the access to benefits and services has been made conditional or even “contractual” (i.e. responsibility-sensitive) in the field of unemployment and social assistance. The big “elephants” of the welfare state (pensions and health care) have also been reigned in, but the prevailing justificatory narrative has focused here on the need for cost containment, sustainability, or compliance with “the demands of the EU”. The Marshallian “lively sense of responsibility”, the fact that the rights of citizenship cannot be severed from “the corresponding duties” seem to have gone lost and appealing to them has today very limited political purchase. Even during economic crises or emergencies, consensus building must stay clear of duty-talk.


Enter EU citizenship

In his analysis of European citizenship, Paul Magnette has introduced the distinction between “isopolitical” and “sympolitical” rights (the distinction is drawn from the law and war practices of ancient Greece).[6] Isopolitical rights are horizontal, as it were: they confer upon individuals belonging to a given political community the freedom to enter into the citizenship space of another community and enjoy the rights recognized by the latter. Sympolitical rights are “vertical”: they stem from a common authority which takes binding decisions for all the members of the participating communities – who in turn have some say on the content of such decisions.

National citizenship is predominantly sympolitical: its scope and content are decided by central authorities through democratic procedures. Only in the case of some welfare benefits are the national rights of citizenship isopolitical, e.g. when they allow any citizen to freely move and to enjoy whatever services – say health care – are provided at the local level, based on choices made by subnational authorities. In the historical federations, sympolitical social rights made a later appearance and still play a lesser role compared to unitary states: federated units have preserved substantial autonomy, especially in health care, social services and assistance. Here the federal government limits itself to guaranteeing free movement and nondiscrimination.

What about EU citizenship? If we exclude some political rights (most notably the right to elect the European Parliament), EU citizenship is almost entirely isopolitical. It is derivative from national citizenship and basically entitles its holders to be treated as equals when they enter the citizenship space of another member state. The rights attached to the EU passport only apply when one crosses an internal border. True, the EU has adopted a Charter of Fundamental Rights and has recently launched a new initiative called the European Pillar of Social Rights. But these are rather soft rights, they apply only in respect of EU legislative acts and do not really add anything substantial to the catalogue of rights already existing in the member states.

EU citizenship does not confer subjective entitlements to material protections (transfers or services) directly provided by the EU. The limited supranational funds that exist in the social field (e.g. the European Social Fund) can only be accessed by national or regional governments. When sympolitical regulatory measures are adopted (e.g. on gender equality or employment protection) they need to be transposed into national legislation to become operative. Even if they concern individual cases, jurisdictional decisions – the rulings of the Court of Justice of the European Union (CJEU) – can only result from a request on the side of a national Court.

As all rights, also isopolitical ones have corresponding duties. In the first place, mobile citizens are subject to the same obligations that are in force in the country of destination: in particular, they must pay taxes and social security contributions. We can define these duties as isopolitical. But “isopolitics” generates a second, and less visible, type of duty. Stay-at-home citizens are obliged to make room for the mobiles, share with them their own national space (an identity-thick and rights-thick space) and bear the burdens of “hospitality”. Empirical studies demonstrate that intra-EU mobility is not driven by benefit tourism and that, in the aggregate, it tends to benefit the receiving member states. But at the disaggregate level (this or that territorial area, this or that economic sector, this or that policy field) the negative economic and social externalities produced by the mobiles may be greater than the positive ones. The influx of citizens from other EU member states may in fact decrease – locally and contingently – the availability of scarce resources such as jobs, hospital beds, emergency care, social housing, school places and so on.[7] While it may be true that national or local governments have not made the necessary public investments in this policy areas[8], the fact remains that mobility has increased the overall problem pressure and originated novel unprecedented needs and policy challenges (e.g. in terms of educational assistance, spatial congestion and segregation, and so on). The social impact of mobility has been significant and it has been perceived as such by a great number of ordinary citizens, who “blame Brussels” because mobility rules do come from Brussels.

Contrary to what happens at the domestic level, the social component of EU citizenship rests on regulation, not on allocation (i.e. material provisions directly funded through tax extractions on the side of the conferring authority). The obstacles to expand the EU budget and powers were (and still are) huge; when it was introduced – in the early 1970s – social security coordination, instead of social supranationalization, was probably the only feasible solution. But this strategy has caused serious political asymmetries: as a matter of fact, it has empowered a relatively small constituency of mobile citizens, at the (perceived) expenses of large majorities of non-mobile natives.[9] In the medium and large EU countries, more than half of the natives have always lived in the region where they were born and hardly expect to exercise themselves the rights of free movement. On average, large majorities of nationals have never visited another EU country, watched TV or read a book in another language, used the internet to purchase goods from abroad. It is not surprising that many of these people perceive the rights of immigrants as a loss in the value of their own rights and opportunities within their communities. Such perceptions are stronger among the less educated and within poorer areas, where vulnerability is higher and immigration can be seen as a threat in the competition for scarce resources or as a symbolic threat to national values and identities. Free movement rights have expanded options (freedoms, faculties), but have also disturbed national social ligatures and thus tend to generate grievances which can be – and have already been – easily politicized. The above-mentioned (cultural) transformation of social benefits and services into “property rights” and the parallel erosion of the “lively sense of collective responsibility” has offered, in turn, a fertile ground for the spread of resentments and feelings of relative deprivation.

As a result of these dynamics, the introduction of EU citizenship has not met its integrative and bonding promises. Quite to the contrary, it has provoked a sort of boomerang effect. The strategy of equal rights involves generating a “we”, but because of the isopolitical nature of the system, this strategy encounters the mobilization of a different “we”. As aptly put by Van Middelaar, the goal was “Hurray, we Europeans can work in twenty-seven countries! The public response has in fact been: Polish plumbers are coming to take our jobs and Brussels is to blame!”[10] .

Is there a way to remedy this failure? If the diagnosis is correct, any remedial strategy must address two distinct challenges: 1) deactivating the current vicious disintegrative circle by rebalancing the isopolitical system; 2) making the rebalanced container of EU citizenship more visible and its content more substantial. Only after meeting these challenges can the question of attaching “some duty” (as in Bauböck’s proposal) be put on the agenda.


Deactivating the vicious circle by empowering the stayers

The rebalancing of the current isopolitical system can be achieved in two complementary ways: through a partial compensation for the negative externalities produced by free movers and through some forms of empowerment of those who do not exercise free movement rights. For the time being, it seems unrealistic to imagine that such responses can be given by creating individual sympolitical rights, i.e. subjective entitlements conferred directly by the EU on the basis of a joint decision and funded by EU taxation. But the EU can at least provide the resources for the necessary compensations. As mentioned, negative externalities are felt locally, for certain occupational groups and in respect of certain public and welfare services. The establishment of something like an EU Fund to ease the impact of mobility (or immigration more generally) could serve the purpose. It could work through national (better: subnational) applications and selection criteria based on adequate evidence of impact. In the UK a similar fund was established in 2008 by the Brown government and later (rather inconsiderately) scrapped by the Cameron government in 2010. According to a recent survey, the creation of such a pan-European scheme would be highly welcomed by EU citizens (see table 1 in the Annex).

Empowering the stayers could be a second promising step. If we unpack isopolitical forms of protection, in addition to the binding supranational regulations that force the opening up of national spaces we also find a number of facilitating initiatives sponsored, organized and funded by the EU with a view to easing and supporting cross border mobility and transactions. Among these we can mention: information platforms such as EURES (European network of employment services), exchange programs such as Erasmus, the European health insurance card, e-health, quick assistance services to travelling citizens – including an EU-wide emergency number, 112 -–, a support service for crime victims. A number of additional initiatives are planned for the future, such as a single digital gateway to receive counsel and assistance in cross-border situations or a common EU disability card.

While it is true that all these facilitating initiatives provide tangible benefits only if there is a cross border element, their personal scope is potentially very wide: it goes well beyond the constituency of mobile workers, affecting travelers and tourists, patients, students, consumers. Among ordinary people there is only a very limited awareness of these initiatives. The first thing to do is thus to popularize these opportunities among the wider public, disconnecting them from free movement in the thick sense (i.e. work mobility).

A way of doing this would be to introduce an “EU social card” (with a number identifier) available to all European citizens to enhance the visibility of (and also easing access to) the various privileges and services already provided by the existing programs. In the US the social security number is not only a pre-requisite for most contacts with the public administration, but also a visible and tangible symbol of membership in the US legal space. Italy has a similar code, which is called codice fiscale, requested for any application to a public benefit, in addition to being used for tax purposes. This number used to be shown on a dedicated plastic card, identifying each citizen (and legal resident) primarily as a taxpayer. Smartly, the number is now shown on a different card: the carta sanitaria – used to access the National Health Service -– which evokes the idea of an entitlement associated to tax duties. A clever move in terms of integration and bonding.[11]

A more ambitious idea is to create a direct stake for stay-at-homers as well in the area of free movement. As has been aptly noted by various authors, the freedom to move implies also the freedom to stay.[12] Those who opt for staying do not have access to the facilitating benefits and services that the EU provides to the movers. Why not imagine a scheme offering, upon application, universal transferable vouchers (or drawing rights) that workers could pass on to their kin – in particular sons and daughters wishing to move? Such vouchers (each having a certain value) could be used to access the existing benefits and services aimed for mobile workers or cashed in for covering extra expenses linked to mobility. Every worker would be entitled to a voucher. Some workers could just transfer their voucher to other workers or young people in search of job, wishing to move, thus endowing them with more value. One might also consider, however, to allow using vouchers for participating to lifelong learning activities at home (and/or in other member states, for short periods) on the side of workers who do not wish to exercise their right of long term free movement. One promising possibility would be to link the use of vouchers for temporary, short term movement with the increasing range of labour market initiatives of trans-border regions. This system would increase the stakes of stay-at-homers. It is to be noted that EU facilitating schemes in the area of childcare, education, training, lifelong learning can be justified not only on the basis of free movement, but also of the mere fact of economic and monetary unification. Providing stayers with some EU funded benefit compensate them at least partially for the often disruptive impact of integration on domestic labour markets.[13]


Making EU citizenship more visible and salient

Personal security and welfare are today key political goods guaranteed by the liberal democratic nation-state. In what ways is EU citizenship complementing the security and welfare component of domestic citizenship? As is well known, Europe has no common army and only a very small (social) budget. It is hardly seen as a source of protection by its citizens. A relatively novel right (in part sympolitical, in part isopolitical) which has augmented the content of EU citizenship is the guarantee of consular protection abroad for EU citizens finding themselves in need of assistance in a country outside the EU where their home country is not represented. This novelty can be interpreted as a branching out of EU citizenship from the internal to the external (i.e. extra-EU) sphere. According to some scholars, the external dimension remains today the only one in which citizenship continues to make a difference compared to mere legal residence.[14] The external protection guaranteed by the Union to all its citizens as such would not only make the burgundy-coloured passport more consequential, but would also increase its symbolic value. As argued by Torpey, passport-based external protection can serve as an effective loyalty and bonding channel, for its capacity to “embrace” movers as citizen-members of a political community.[15] The Commission is currently studying a series of practical measures to make external protection of citizens more effective. A front along which this type of protection could be strengthened is the occurrence of terrorist attacks, in Europe and abroad. Italy already has a scheme for compensating (in the name of “solidarity”) the victims of terrorism and persons killed or injured in the line of duty. It might be a good idea to consider establishing a similar EU wide scheme, sending a signal of pan-European activism on a front – personal security – which is a fast growing popular concern.

The salience of EU citizenship could be enhanced also by strengthening the existing social funds and creating new ones. During the last decade two new funds have been created: the Globalization Adjustment Fund, providing resources to workers affected by plant restructuring or closure, and the Fund for European Aid to Deprived Persons, providing resources in case of extreme poverty. Benefits are not paid directly to recipients, but through local authorities – which must previously apply for assistance. The indirect character and the small budget of these funds greatly limit their public visibility and salience. At a minimum, the EU should seek some credit by prescribing to local authorities to clearly indicate the provenance of resources at the endpoints of the delivery chain. If an “EU social card” was in place, it could provide a tangible instrument for linking benefits and EU citizenship.

In the wake of a proposal of the Italian government during its last EU presidency (following preparatory work by the Commission), the establishment of an EU fund to compensate cyclical unemployment is currently on the EU agenda. This would be a major step in terms of pan-European solidarity – possibly one of the first important building blocks of a future European Social Union. Most likely, this fund will also operate indirectly. Given its wide personal scope, it will be extremely important to render the link between the EU and the resources accruing to national authorities and, ultimately, citizens as clear and evident as possible. Survey data show that popular support for such an initiative is very large (see Table 1 in the Annex).

Finally, a brand new supranational (and thus sympolitical) scheme could be established for insuring mobile workers against some risks (unemployment, maternity, disability etc.): a sort of 29th scheme (or 28th, after Brexit) separate from existing national schemes and providing homogeneous protections to those workers who move across borders. This idea has been circulating in the debate ever since the 1970s, when the social security coordination regime was adopted. As shown by table 2 in the Annex, popular support for the establishment of such a scheme would be very high. One of its advantages would be to ease the financial pressure (real or perceived) on domestic social protection systems stemming from the inflow of mobile workers and their families. In an ambitious scenario, this supranational scheme could catalyze the formation of cross-border insurance schemes, in line with the spatial and functional reconfiguration of the European economy and labour market. In due course, such schemes might break the path towards novel forms of transnational risk pooling and thus solidarity.[16]


Adding citizenship duties: Is it desirable? Is it feasible?

The Lisbon Treaty makes it clear that EU citizenship is not “duty-free”: rights come with duties (art. 20 TFEU). So far, such duties essentially consist in complying with EU law, including free movement and its potential negative externalities. Would it be desirable to introduce some heavier, more tangible burden, directly linked to being a citizen of the Union?

As mentioned, the classical duties of citizenship (prior to it: of “subjectship”) have historically consisted in paying taxes and serving in the army. In present times, the former duty can be absolved through indirect taxation, income/wealth taxation, social security contributions and, to some extent, co-payments and fees-for-service. As to the latter duty, mandatory service is today the exception rather than the rule: the vast majority of EU countries have replaced it with voluntary service or with professional armies.

Given widespread anti-tax sentiments among voters, the imposition of some explicit and visible EU tax would today not be a good idea in terms of political support, integration and bonding.[17] Even a recourse to "the most Europeanised of all taxes", i.e. the VAT, could be counterproductive.[18] In the present context, the only feasible strategy would probably be to introduce some voluntary financial contribution “for Europe” by means of nudging incentives. In some countries, when filling in their forms, taxpayers have the option to earmark a certain percentage (or per thousand) of their taxes for certain activities or institutions: churches, philanthropic, third sector, humanitarian institutions, political parties, cultural associations and so on. In Italy, 0.8% is mandatory (taxpayers must choose between the state or a church among a list of different denominations). 0.5% is voluntary (it can be earmarked for a long list of recognized institutions engaged in social, humanitarian and scientific research activities). An additional 0.2% can be earmarked for political parties. The cinquexmille is chosen by more than 16 million taxpayers and produces an annual revenue of half a billion euros. A similar system could be established by all national tax authorities of the member states, giving the option of earmarking a small quota of personal taxes in favor of the EU as such (or, better still, of some of the abovementioned social funds). A bolder move of nudging would be to reverse the sequence of choice: the contribution for Europe (its social funds) is mandatory, unless the taxpayer explicitly opts out of it (“automatic enrollment”).

Another possibility would be to use the co-payment or fee-for-service route in exchange for the array of facilitating initiatives that the EU already provides to ease the exercise of free movement and related rights. If access to the benefits and services of these initiatives (and the new ones that might be added) were filtered through an EU social card, the issuing (and renewal) of such card could be subject to a fee, to be used for funding the most expensive schemes (such as the above-mentioned voucher system). The UK scheme for easing the impact of migration was funded through a levy of 50 pounds on immigration permits. The possible fund for compensating the victims of terrorism could be financed through a small fee on the issuing of passports – obviously clarifying the purpose of this fee.

Beyond taxes and fees, another voluntary form of duty could be a pan-European civil service for young people. The EU has recently established a European Voluntary Service and a European Solidarity Corps. Participating to such services could be made more appealing to young people by stressing the benefit of acquiring valuable skills and experiences. In due course, these two services could morph into some sort of an EU civilian defense and civic community service that could be chosen as an alternative to national service in those member states where the latter is mandatory; in the other member states it could still be chosen voluntarily.[19] Although remaining far from proper and “hard” duties, the proposed extractive instruments would indeed move in Bauböck’s direction, through cautious and experimental steps. In the current “euro-critical” context, jumping from “duty-free” to “duty-heavy” citizenship might be politically dangerous and even counterproductive.


An incremental strategy – with a vision

Following the tradition of Max Weber, we can define rights as sources of power (Machtquellen). Since power is a social relation in which somebody’s “will” causes the behavior of somebody else, regardless of the latter’s “will”, the creation of a right automatically creates a correlative duty of compliance. But what exactly are the power resources which back the actual exercise of rights? First, there are normative resources: holding a right means having legitimate reasons to claim compliance (horizontally from fellow-citizens and vertically from political authorities). Secondly, there are enforcement resources: if compliance is not obtained, the right holder can activate legal coercion. Thirdly, there are instrumental resources: the conferring political authority typically provides the conditions for a full exercise of rights. In the case of social entitlements, for example, the state sets up social insurance systems (securing their financial bases), provides information and advice for accessing benefits and so on. While the second type of resources (enforcement) are what makes rights (and, by extension, citizenship) “hard”, in contemporary liberal-democratic societies we should not underestimate the importance of the other two types: normative and instrumental resources.

Even when it adopts binding norms that indirectly impinge on national citizenship, the EU cannot provide enforcement resources directly to citizens. As mentioned, even access to the CJEU is mediated by national courts. The EU does provide, however, normative resources (if only through soft law) and EU citizenship does directly empower citizens with instrumental resources for the exercise of rights.

In this note, I have argued that it is precisely the provision of instrumental resources (money, benefits and services, infrastructures and so on) that could make EU citizenship more salient, visible and tangible for wide social constituencies. A smart enhancement and packaging of such resources (accompanied by an adequate communication, capable of bringing some credit to the EU directly), could be the trampoline for strengthening the social citizenship dimension of the EU and experimenting with a range of soft duties. Intra-EU free movement rights (more precisely: the freedom to reside and work in any member state) is not only the hardest right of EU citizenship; it also the only one that differentiates EU citizens from third-country legal residents. In other words, it is the key marker of EU belonging in the thick sense.

In the debate it is often argued that the increased harmonization of rights and obligations between citizens and legal residents is making citizenship a less robust form of association, and that consequently its bonding potential has lost traction. The peculiar features of EU citizenship make it less sensitive, however, to such trends.

Internally, EU citizenship entitles to free movement. So far, this entitlement empowers only a limited constituency and has the risk of generating boomerang effects. In my scenario, the fact of free movement (and of the monetary union – a point which I cannot develop here) justifies the expansion of facilitating benefits and services that could be accessible to everybody: either in the form of transferrable drawing rights or in the form of access to training and life-long-learning services at home (or in another member state, for a short time) aimed at endowing all Europeans with the skills required by the new integrated European economy, based on a single market and international openness.

Externally, EU citizenship (which carries a passport eligibility foreclosed to third country legal residents) entitles to forms of protection against harms to personal or material security which are unfortunately becoming more frequent. The motto Civis Europaeus Sum would thus acquire a consequential meaning, both within and outside the EU.

My proposals (summarized in tables 4 and 5) may seem unambitious and low-key, but they have the advantage of being practical and can become operative without Treaty changes or major legislative innovations. National citizenship and welfare regimes were not born with a historical Bing Bang, but with a slow sequence of incremental reforms. Given the heavy legacy of such regimes, incrementalism is the only policy strategy for the EU today. A strategy that does not rule out the elaboration of grand political visions. Quite to the contrary, it presupposes visionary thinking, otherwise small steps become a purposeless and random walk, very likely to result in political failure.




[1] This text has been written in the context of the RESCEU Project (Reconciling economic and social Europe, www.resceu.eu), funded by the European Research Council (Advanced Grant no. 340534).

[2] R. Bauböck. Still United in Diversity? The State of the Union Address, Florence, 5 May 2017

[3] R. Brubaker., Citizenship and Nationhood in France and Germany, Cambridge, Cambridge University Press, 1992

[4] According to Arendt’s famous formula. See H. Arendt. The Origins of Totalitarianism, New York: Harcourt, Brace & Co., 1951..

[5] T.H.Marshal and T.Bottomore, Citizenship and Social Class, London, Pluto, 1992, p.41

[6] P. Magnette. Citizenship. The History of an Idea, Colchester, ECPR Press, 2005.

[7] See European Commission, Evaluation of the impact of the free movement of EU citizens at local level. Final Report, Brussels, January 2014

[8] As argued, among others, by F.De Witte, in Freedom of movement under attack: is it worth defending as the core of EU citizenship?, Working Paper, Florence, RSCAS, 2016/69.

[9] The capacity of free movement rights and actual transnational mobility to nurture a sense of identification with the EU seems to be, paradoxically, rather limited. See L.Damay and H.Mercenier, “Free Movement and EU Citizenship: a virtuous circle?”, in Journal of European Public Policy, 2016, vol. 23, no. 8, 1139-1157.

[10] L. Van Middelaar, The Passage to Europe, New Haven and London, Yale University Press, 2013, p. 261.

[11] One should not underestimate the symbolic –in addition to the practical and control-oriented- value of administrative papers in forging belongingness and even bonding. See the interesting historical reconstruction by J. Torpey, The Invenstion of Passports: Surveillance, Citizenship and the State, New York, Cambridge University Press, 2000

[12] See the various responses to the kickoff essay by De Witte, supra, ft. 7.

[13] This evolution might be seen as a social counterpart of an economic dynamic which affected in the past the free movement of goods and the competition regime. In the period which led to the completion to the single market, virtually all types of public regulations at the domestic level became subject to market-compatibility scrutiny regardless of the presence of cross border elements, in the wake of a maximalist interpretation of Treaty provisions (see. Poaires Maduro, Striking the Elusive Balance Between Economic and Social Rights in the EU, in P. Alston, ed. The EU and Human Rights, Oxford, Oxford University Press, 1999.). The Lisbon Treaty could serve as the basis for a possible countermovement. European Monetary Union requires domestic adjustments which may clash with the social principles of the Treaty on European Union. Facilitating upskilling and lifelong learning at the national level even in the absence of cross-border elements could be defended based on the same logic that facilitated access to the market and deregulations at the domestic level, regardless of their pertinence for or link with free movement as such.

[14] Among aother, Peter J. Spiro, The (Dwindling) Rights and Obligations of Citizenship, 21 Wm. & Mary Bill Rts. J. 899 (2013), http://scholarship.law.wm.edu/wmborj/vol21/iss3/6; Linda S. Bosniak, The Citizenship of Aliens, 56 SOC. TEXT 29 (1998);

[15] Passports cannot be regarded merely as an instrument of government control. To use the words of the United States passport, the “passport is a valuable citizenship and identity document”. See Torpey, cited above ft. 10.

[16] Cross-border pension schemes are already being experimented with in the wake of Directive 2003/41/EC. Almost 700.000 EU workers are already covered by such schemes. See https://eiopa.europa.eu/Publications/Reports/EIOPA-BoS-16-222_2016%20market%20development%20report%202016.pdf

[17] Italy did introduce a tassa per l’Europa in 1997, to meet the deficit target required to join the euro. Nobody protested: but it was an extraordinary levy, for a defined goal, at the time perceived as beneficial for the whole nation. And then prime minister Romano Prodi promised that the tax would be paid back - a promise that was at least partially kept.

[18] Van Parijs has proposed, for instance, an EU-wide VAT of 20% to finance a monthly universal euro-dividend of 200 euros per month, for reference see http://www.theglobaljournal.net/article/view/1038/.

[19] The US National Guard and the Swiss militia system –originally meant for military and defence purposes – are being increasingly transformed into civilian defence and civic community services, and are often mobilized for various types of internal emergencies or natural disasters.


Liberal Citizenship Is Duty-Free 

By Christian Joppke (University of Bern)


Maurizio Ferrera has produced an admirably detailed and savvy catalogue of suggestions to “add stuff” to European Union citizenship, particularly on its social rights dimension. The idea is that more deliverables, particularly for the vast majority of Europeans who do not take advantage of the right of free movement that remains the beating heart of EU citizenship, will increase the cohesive and integrative powers of the European citizenship, and allow to attach some “soft” duties to it that in its current form are entirely missing. The question whether EU citizenship “should” be duty-free is only tangentially raised, and it is presumed rather than discussed that the only reasonable answer could be negative.

While the spirit of this proposal is “incremental” and pragmatic, I would like to question some larger presumptions that go into it. The first and central is that duties are a necessary component of citizenship. However, tax paying and army service, which are mentioned by Ferrera as “novel duties” attached to the rise of national citizenship, and apparently considered as model duties for a strengthened EU citizenship also, are no specific citizen duties. All legal residents are required to pay taxes; and most armies today are professional and thus facultative (and some armies, like the American, following the Imperial Roman model, also recruit non-citizens). As already Hans Kelsen observed, even “allegiance”, that quintessential citizen duty, is not a legal duty but merely a “political and moral” exigency: “There is no special legal obligation covered by the term allegiance. Legally, allegiance means no more than the general obligation of obeying the legal order, an obligation that aliens also have”[1]. Kelsen wrote this at a time when “treason” was still a crime that only citizens could commit; its functional equivalent today, “sedition”, which is the legally enforceable opposite of allegiance, is a crime that non-citizens also can be charged for [2]. A non-starter at the national level already, where—as Dimitry Kochenov put it—citizenship has undergone a process of “liberal de-dutification”[3], it is obvious that a “dutified” EU citizenship would be extra-anachronistic.

This leads me to question a second presumption of Ferrera`s proposal, which is that national citizenship provides a model for EU citizenship. If anything, one might argue, in reverse order, that EU citizenship provides a model (and guarantor) of a “lightened” citizenship that is observable at the state level already[4]. For Ferrera, the direction is for EU citizenship to move up to the national model. This entails certain questionable idealizations, for instance, of national citizenship to feed “affectual and normative loyalty vis-à-vis state authorities and their binding decisions” (Ferrera). When was that, and where, one must ask. From the ground up, states are better conceived as “protection rackets”[5], so that an “affectual and normative” attitude to that sort of thing appears delusional, at best. Undeniably, in the nationalist past, citizenship was a reason for people to spill their blood and that of others, and it was a ground to be duped by “state authorities” (who is that, one must continue asking). It isn`t, and shouldn`t be, today. Add to this the element that the EU is no ordinary state. If the equivalent of “state authorities” in Brussels, which is the European Commission, decides to relicense Monsanto`s glyphosate, a controversial weed killer that is strongly suspected by the World Health Organization to be carcinogenic to humans, in this decision presumably not uninfluenced by this multinational`s formidably resourceful, state-dwarfing lobby [6], there shouldn`t be a EU citizenship tranquilizer around to let that pass as “binding decision”. Perhaps it would be a category mistake to deploy the citizenship concept in the first place. The EU is a regulatory regime, not a protection racket, so that “citizenship”, which has grown out of a protection logic, providing a flowery “allegiance” and “loyalty” coating to the elementary state function of providing security, is the wrong concept to begin with. Citizens and others have every reason to be suspicious of a notionally technocratic but still humanly fallible European Commission that is only indirectly, if at all, liable to democratic constraints. Karl Marx would be posthumously redeemed if “citizenship” were available to feed “affectual and normative loyalty” to that elite.

There is a third problematic presumption in Ferrera`s proposal to “add stuff” and to “dutify” EU citizenship, which is the idea that “moving”—incidentally, by a tiny group that does not even cross the five percent mark of the EU population—causes harm that “stayers” should be indemnified for. As Ferrera writes, EU citizenship “has empowered … mobile citizens, at the (perceived) expenses of large majorities of nonmobile citizens” (Ferrera typescript, p.5). Ferrera cautiously talks about “perception” here but then gives credence to it by proposing to compensate for the “negative externalities” of free movers and to “empower” the stayers. This would give legal dignity to the Ur-trope of European populists, that of migrants as perpetrators and of natives are victims. More fundamentally still, it buys into the populists` hideous re-labelling of mobile EU citizens as “immigrants”. It is a fact that the fiscal effects of post-Enlargement migration into the UK, mainly from Poland, which has been the single-biggest theme of the Brexit campaign, have been positive. But then it would reward the British state twice over if tax-payers of other EU states were to pick up the bill of the region-specific infrastructural impasses (schooling, health care, transport, etc.) that are inevitably caused by this migration. In short, any scheme that gives legal dignity to slicing the European citizenry into two unequal halves, movers and stayers, with the perverse and absolutely anti-European connotation of moving as harmful and staying as virtuous (at least, as something to be rewarded for), is dangerous, because it confirms the demonology of European populists. 

This is not to deny that the binary of moving v. staying maps closely into that of openness v. closure, which is the central new cleavage of societies undergoing globalization, largely obliterating the classic left-right cleavage that has structured Western politics for over 200 years. However, if the old cleavage was reconciled by the welfare state and its social citizenship, doubts are allowed that these compromise structures can be simply applied to a new situation in which globally mobile capital has greatly diminished the fiscal capacity of the state and its judicial authority over the economy. The European citizenship, in contrast to traditional citizenship that eulogizes the value of staying and closure, has moving and openness written on its forehead. No compensatory EU funds for stayers or tangible benefits for tourists, patients, students, consumers, via a “EU Social Card”, etc., as proposed with alacrity and a great sense of practicality by Ferrera, will ever warm up the stayers to “Europe”. Peter Spiro nicely describes the novelty of the day that a Londoner opposing Brexit will feel closer to a New Yorker opposing Trump than to their notional fellow-citizens in the province voting for Brexit or Trump [7]. Or as David Goodhart commented on Brexit opponents` sense of waking up “in a different country” on the morning of 24 June 2016, this is exactly how Brexit proponents had felt before the fateful referendum [8]. Both camps quite literally inhabit different spaces, from the mental to the physical, and are tied up in incompatible loyalty structures. “Citizenship” has become an obsolete clip to tie them together. The cohesion and bottom-up support that the European project needs to survive, and to move on, is unlikely to stem from cosmetic corrections to a citizenship that cannot but be partisan in the openness v. closure rift. More urgent would be to end the intolerable situation that not just populist movements but entire member states have decisively thrown themselves on the “closure” end of the spectrum, opposing Europe from within it, by building “illiberal states” that openly repudiate the common values upon which the EU also legally rests.

Finally, if I understood Ferrera correctly, he defends his proposal as one that would sharpen the distinction between privileged EU citizens and less privileged third-state nationals, or “immigrants” proper, because only EU citizens but not settled immigrants are meant to benefit from the proposed social policy measures. This strikes me as retrograde (and against the territorial logic of dispensing welfare). The thinning distinction between citizens and legal permanent residents is a side-effect of a larger liberalisation of citizenship in Western states and of the “civilising” of nationhood that undergirds the latter. This is a hard-won achievement, not a liability. For the opposite tribal model of a citizen elite tightly sealed from second-class immigrants, consult the Gulf States. It would be ironic if the European Union, which has been created to tame nationalist exclusiveness, were now to mimic it.

These somewhat grand-scheming objections, some perhaps more plausible than others, are raised for the sake of debate; they are not meant to diminish Ferrera`s powerful and deeply knowledgeable proposal. We share the same vision of strengthening the European citizenship. At heart, however, I would guard against the notion that citizenship should be duty-full. Liberal citizenship is duty-free, in a legal (not moral!) sense, and EU citizenship is even more so. A citizenship that imposed hard legal duties was the “citizenship” of communist states, today also that of Islamic states, which arrogate to themselves a strong formatting of the preferences and beliefs of their members. This is not a model to follow, because it impairs elementary freedoms.



[1] Hans Kelsen, General Theory of Law and State. Cambridge, Mass.: Harvard University Press, 1949, 235.

[2] See George Fletcher, Loyalty: An Essay on the Morality of Relationships. New York: Oxford University Press 1993; chapter 3.

[3] Dimitry Kochenov, “EU Citizenship Without Duties”, European Law Journal 20(4), 2014, 482-98

[4] See Christian Joppke, “The Inevitable Lightening of Citizenship”, European Journal of Sociology 51(1), 2010, 9-32.

[5] Charles Tilly, “War Making and State Making as Organized Crime”, in Peter Evans et al., Bringing the State Back In. New York: Cambridge University Press 1985.

[6] “European Commission Plans to Relicense Controversial Weedkiller”, The Guardian, 24 February 2016. One must concede, however, that the European Commission`s stubborn support for the multinational is backed by some large member states, including Germany and France.

[7] Peter Spiro, “Citizenship After Trump”, International Migration Review 2017.

[8] David Goodhart, The Road to Somewhere. London: Hurst 2017.

Building Social Europe Requires Challenging the Judicialization of Citizenship [1]

By Susanne K. Schmidt (University of Bremen)


Which rights should European citizenship entail to protect the achievements of European integration, while overcoming its pitfalls? Should we aim to ‘add stuff’, as Ferrera suggests, or rather follow Joppke's plea for non-exclusive citizenship rights? I agree with Ferrera's diagnosis that EU citizenship has an isopolitical bias, it horizontally opens nationally shaped (and financed) welfare systems to citizens from other member states. However, in his 'detecting of the flaws' he overlooks the largely judicial genesis of citizenship rights, which are crucial for understanding the shortcomings of EU citizenship. In the following, I start by filling this gap. Because Ferrera’s suggestions require political decisions, they are much welcome on this basis. 

Since Maastricht, EU citizenship saw an impressive advancement from a rather symbolic Treaty addition to being the 'most fundamental status' (C-184/99 Grzelczyk). In the light of van Gend (26/62), Costa (6/64), Cassis de Dijon (120/78), and multiple other rulings, scholars of European integration have taken for granted how much the Court of Justice of the European Court (CJEU) shapes policy in the EU by interpreting the many policy objectives the Treaty contains (four freedoms, competition law, and then citizenship). For citizenship, the judicial development implied an increasing pressure on nationally financed welfare states to open up non-discriminately to EU citizens, even if economically inactive, and with few and recent ties. But in late 2014 the CJEU made clear that those entering a state but never intending to work and contribute (C-333/13 Dano) have no European right to claim equal access to funds. 

Behind the extraordinary policymaking power of the CJEU is what Dieter Grimm calls over-constitutionalization [2]. An intergovernmental Treaty describing cooperation aims is policy-rich. If this Treaty is transformed into a constitution by declaring it directly effective and supreme, the Court’s interpretations of the Treaty acquire constitutional status themselves. For citizenship rights, this means that the rights enshrined in the Citizenship Directive or in the regulations on the coordination of national social security systems, have been shaped back and forth between the EU's judiciary and its legislature, with the latter not being able to overrule the former's constitutionalized rulings [3]. Next to EU secondary law, CJEU case law directly shapes the social policy of member states.

This peculiar way of policymaking has repercussions. As rulings on single cases take generalised effect, the resulting policy is unable to cater equally well for the differences of national welfare systems. Its character of ‘one size fits none’ is more pronounced than a negotiated policy would be, where all member states could make their preferences known regarding national conditions and singularities. And, more seriously in our context, the CJEU is hardly legitimised for opening up national welfare systems to EU citizens. This is not to say that those advocating for welfare chauvinism know about the judicial background of the rules, but rather that member-state governments would not have legitimated, absent judicial pressure, the partly far-reaching opening of national welfare systems even to those that have hardly contributed so far. For instance, following Styrelsen (C-46/12, 2013), EU students working 10-12 hours per week have gained access to Denmark’s generous non-repayable student support. Labour-activating welfare states subsidise poorly paid EU citizens, implying that tax-financed in-work benefits may be higher than actual pay, resulting also in incentives for workers’ exploitation [4].

Nationally financed welfare state systems that are only coordinated at the EU level may need to balance openness and closure in the way of an ‘earned’ social citizenship excluding those that recently joined the national community for a transition period [5]. This is not to say that internal EU migration currently takes a toll on the old member states. Overall contributions appear positive, and it is rather of grave concern that the poorer EU countries seem to lose out from the free movement rights of their citizens [6]. But within the rich states the benefits of European integration, as of globalisation, do not appear to be distributed equally. The working class feels left out from the liberal consensus. This needs to, and could be handled better within the member states. But inevitably, like the free movement of capital, individual free movement rights can be used to free-ride on different member states' provisions or to engage in regulatory arbitrage. Empirically, this may be of much less relevance than tax evasion. But to those contributing to national welfare systems, to those having themselves difficulties making ends meet, arbitrage and lack of reciprocity undermines the legitimacy of national welfare alongside that of the EU [7]. 

Are Ferrera’s suggestions likely to remedy the situation? They strengthen the necessary political debate. If the opening of national protection systems to those with recent links and few financial contributions to the member-state community lacks legitimacy, because solidarity is claimed with no reciprocity, his suggestion of an EU social scheme for those on the move appears the most promising. Those using their free movement rights, requiring support in the transition, should be compensated directly from the EU level to top up, for instance, their Bulgarian unemployment payments that do not allow them to look for a job in Denmark [8]. In addition to Ferrera's argument, this would lessen the normative drawback of the immediate opening of national welfare. To me, it therefore appears better suited than his other suggestions of compensating for possible costs of ‘hospitality’. The array of national welfare schemes and European funds already appears sufficiently confusing to the non-expert, so that more may be gained from greater transparency than from further additions. A division of competences, where the level of government granting rights also has to cover their costs would allow social Europe to progress from ‘regulation’ to ‘allocation’. And it would bolster the EU’s legitimacy if it could give added value to EU citizens moving to other member states.

Such an EU citizenship could not treat newly settled third-country nationals on a par, in the same way as mobile EU citizens would have to ‘earn’ their equal rights in host member states. If I understand Joppke well, he argues against such exclusion and for a thin, liberal citizenship, reminding us of the dangers of national privilege and allegiance. 

Intuitively, inclusion has greater appeal than exclusion, but possible costs to the achievements of advanced welfare states need empirical analysis. Highly differentiated societies rely on redistribution, social services, public education, and infrastructure. Solidarity and reciprocity are closely related, as Ferrera reminds us. A currently positive fiscal balance under conditions of EU free movement is insufficient proof, as there is no full opening and member states tread carefully to maintain their welfare schemes under the relative openness forced by the CJEU. If we fail to consider how redistribution could work in a context of encompassing non-discrimination without resulting in a race to the bottom of welfare services, we may strengthen rather than beat right-wing populism. 

Freedom of movement and EU citizenship have liberating force for the individual. But they have to be embedded so that they do not undermine the republican basis on which they ultimately rest [9]. A solely liberal notion of citizenship that does not exclude anyone, extending to third-country nationals, may be a citizenship for those whose fortunes do not seem to depend on collective action as they are individually imbued with sufficient resources. Is the inclusive, liberal citizenship vision possible without transforming it into a neoliberal nightmare of the fully liberated market-citizen? And is it really politically more attractive than a temporary exclusion from full equal treatment for those moving into other communities? An all-inclusive, truly cosmopolitan citizenship conception can hardly assure those fellow citizens that are losers of globalisation of our solidarity if they feel pitted against all humankind in need. It has been asked why the working class abandoned the Left [10]. But the converse question similarly merits debate.

We all depend on the surplus of functioning, highly differentiated societies. The rising number of failed states, and increasing problems with rule of law even in EU member states show how much ridden with prerequisites the Western highly developed (welfare) state is. Joppke sees ‘incompatible loyalty structures’ on both sides of the openness v. closure cleavage that cannot be tied together by citizenship anymore. That does not bode well for the necessary political discussion of how open national welfare states should be and under which conditions they integrate newcomers. The decision cannot be left to courts that deal with it under the principle of non-discrimination. Different from democratic majorities, the judiciary is ill-equipped to take decisions on allocating resources. Non-discrimination as a principle neither gives clear guidelines, as it requires treating like cases alike, and unlike cases differently. For welfare states depending on redistribution, which are legitimate criteria for distinction?

Traditionally European integration has been market integration and as such it is not sustainable. But the building of communities sharing values and solidarity takes time. It cannot be surprising that the increasing economic and social heterogeneity through simultaneous deepening and widening of the EU resulted in challenges. To strengthen the sense of belonging, EU citizenship rights are important, but in order to have societal backing they need to be politically shaped and granted, not judicially. Has this not been amply demonstrated by the Brexit vote? Without entering this debate, which Ferrera opens, sustainable progress towards a real European Community is unlikely. Relying on courts is insufficient.



[1] Funding of Norface is gratefully acknowledged (www.transjudfare.eu)

[2] Grimm, Dieter, 2015: The democratic costs of constitutionalisation: the European case. In: European Law Journal 21, 460-473.

[3] Schmidt, Susanne K., 2018: The European Court of Justice and the Policy Process: The Shadow of Case Law, Oxford. Oxford University Press, forthcoming.

[4] Ruhs, Martin, 2015: Is Unrestricted Immigration Compatible with Inclusive Welfare States? The (Un)Sustainability of EU Exceptionalism. Oxford: Compas, Centre on Migration, Policy and Society, Working Paper No. 125.

[5] Kramer, Dion, 2016: Earning social citizenship in the European Union: free movement and access to social assistance benefits reconstructed. In: Cambridge Yearbook of European Legal Studies 18, 270-301.

[6] Atoyan, Ruben, et al., 2016: Emigration and Its Economic Impact on Eastern Europe. IMF Staff Discussion Note.

Dorte Sindbjerg Martinsen, Gabriel Pons Rotger, 2017. The fiscal impact of EU immigration on the tax-financed welfare state: Testing the ‘welfare burden’ thesis. European Union Politics, doi:10.1177/1465116517717340 

Dustmann, Christina, Tommaso Frattini, 2014: The Fiscal Effects of Immigration to the UK. The Economic Journal, 124: F593–F643. doi:10.1111/ecoj.12181

[7] Beaudonnet, Laurie, 2014: A threatening horizon: the impact of the welfare state on support for Europe. In: Journal of Common Market Studies 53, 1-19.

[8] Bruzelius, Cecilia, Constantin Reinprecht, Martin Seeleib-Kaiser, 2017: Stratified Social Rights Limiting EU Citizenship. Journal of Common Market Studies, doi: 10.1111/jcms.12555.

[9] Scharpf, Fritz W., 2009: Legitimacy in the multilevel European polity. In: European Political Science Review 1, 173–204.

[10] Bo Rothstein. https://www.socialeurope.eu/white-working-class-abandoned-left

EU Citizenship Should Speak Both to the Mobile and the Non-mobile European

By Frank Vandenbroucke (University of Amsterdam)


Maurizio Ferrera tables a catalogue of proposals to add a social dimension and ‘some duty’ to EU citizenship. As always, his search for incremental solutions that reconcile feasibility and vision is challenging. However, I have some sympathy with Joppke’s reaction that one cannot dispense with a more fundamental debate on free movement, on which public opinion is deeply divided. Ferrera’s proposals may be relatively peripheral to settling that fundamental debate. On the other hand, Joppke’s insistence that EU citizenship is duty-free, because it is liberal, does not yield a justification for free movement and non-discrimination of mobile Europeans. I believe it is possible to justify free movement in a framework of principles that speak both to the mobile and the non-mobile European, whereby openness is embedded in principles of reciprocity. Reciprocity bridges rights and obligations.      

To clarify the issues at hand, we should distinguish three questions: 

1) How can we justify free movement? 

2) How can we justify non-discriminatory access to social benefits for those who move?

3) How can we justify a difference between active and non-active citizens in the application of (1) and (2)? 


Why free movement for active citizens?

Simply postulating that EU citizenship implies free movement begs the question. The most robust normative justification holds that free movement of workers means that EU citizens share an opportunity set, which is much larger than the opportunity sets offered by separate national labour markets. If free movement is about ‘equal access to opportunities’ across borders for all Europeans, it is hard to see how it can be mitigated or nuanced on a permanent basis (which is different from postponing it during a transitory period): either equal access applies for everybody – for the low-skilled as much as for the high-skilled, for all kinds of jobs –, or it does not apply, at least as long as equal access to opportunities is so conceived [1].

This normative justification is not premised on the idea that free movement would per se improve the position of the worst-off within the EU. The status of such a principle in a conception of social justice is comparable to Rawls’ principle of ‘fair equality of opportunity’, which has priority over his ‘difference principle’: for Rawls, ‘fair equality of opportunity’ (which is about access to positions and offices) has to be respected, even if it would limit the scope for redistribution. But is there an inevitable trade-off? With regard to the distributive consequences of free movement, I agree with Joppke that there is something problematic in Ferrera’s proposal to set up a compensation mechanism for countries experiencing intra-EU immigration. Next to Joppke’s observation that national governments are not incurring budgetary losses because of immigration and should be responsible for securing adequate provision of social services for their residents, the ‘negative externalities’ mentioned by Ferrera may be more real for countries of mass emigration than for countries of immigration. Therefore, such a proposal risks to be highly divisive in today’s Europe. The only way to tackle the distributive risks associated with mobility is to be more demanding vis-à-vis member states with regard to the quality of their welfare states, notably in the realm of labour market regulation and the provision of social services - more demanding than the EU is today. The regulation of minimum wages is a prime example. Different traditions exist with regard to the regulation of minimum wages: in some member states public authorities set minimum wage levels, in other member states this is the exclusive domain of social partners. But, however minimum wages are determined, a common European principle should be that all workers are covered by minimum wage regulation: decent minimum wages should apply universally in the EU’s member states, without exceptions for certain sectors, or types of jobs, or types of workers. A related example is access to social protection: there should be no jobs that do not create access to social protection. In short, if we don’t want immigration to boost a precarious, hyper-flexible segment of labour markets, there should be limits to precariousness and flexibility across the board. Or, think about access to social services, which can be under pressure in municipalities or regions with significant immigration: member states should guarantee sufficient provision of social services to safeguard universal access, for non-mobile citizens as much as for mobile citizens. The debate on the European Pillar of Social Rights can be the starting point to develop such common principles.  Admittedly, developing and translating such principles into tangible realities is an uphill battle in today’s Europe; but there is no alternative if free movement is to be reconciled with domestic social cohesion. 

Next to the principled case based on a notion of equality of opportunity, there is a second, more contingent argument in support of free movement: a single market needs both a regime of free movement of workers and a regime of posting of workers (which supports the freedom of service delivery), and the two regimes need each other and should constitute a well-balanced and sustainable whole. Posting [2] has become a controversial issue in the EU: it is difficult to control and generates problems of social dumping in particular economic sectors. Therefore, reform is necessary. However, one cannot dispense of a posting regime: an integrated market for services requires that workers can be sent to other member states for short-term projects, without being employed and affiliated to the social security system of the receiving country. Simultaneously, a single market needs a regime of free movement of workers seeking regular employment contracts in other countries as a necessary corollary to a regime of posting [3]. Limiting free movement of workers (with the principles of non-discrimination it implies) between a country A and a country B while allowing posting would be unfair from the point of view of workers living in A, since it would make it impossible to work in B on the basis of the full social and employment policy regime in that country. Moreover, such an imbalance would enhance a dynamic of social dumping in B: the alternative ‘non-dumping’ option, which some workers from country A might prefer (compared to the ‘posting’ option), is simply unavailable in such a scenario. For it to be fair to workers, an integrated, single market for services needs both a well-delineated posting regime and free access of workers to regular employment contracts in other countries.


Why non-discrimination?

There should be no denying that the case for free movement for workers has often been made on mainly economic grounds (with a view to the efficient allocation of factors of production), and that the principle of non-discrimination, notably with regard to social security entitlements, has often been defended as a corollary of free movement: non-discriminatory access to social security entitlements associated with employment obviously facilitates free movement. In the previous section, I tabled an argument for free movement based on access to opportunities, which does not refer to the traditional economic efficiency argument. In addition, we need independent arguments for non-discrimination that are not premised on the idea that free movement should be promoted per se

The fact that a mobile worker is incorporated in the solidarity circle of the country where he or she works is most often defended as crucial to European citizenship. Without appeal to European citizenship, there is another argument, premised on the idea that the European Union should be union of welfare states. The fact that a Polish worker enjoys the same social rights as Belgian workers when working and living in Belgium justifies that his employment generates the same social security contributions and tax revenue for the Belgian government as the employment of a Belgian national in Belgium. In other words, non-discrimination in terms of social rights justifies and so sustains the principle that we do not tolerate competition between the Polish and the Belgian social and taxation system on Belgian territory: such competition is a recipe for social dumping. The non-discrimination principle establishes a notion of reciprocity across EU member states, in the following sense: all member states guarantee that all economically active mobile citizens will have equal access to social policies in each of the member states; simultaneously, all member states understand that including economically active mobile citizens in the solidarity circle of their host country protects these solidarity circles against practices of social dumping within their own territory.


Earned social citizenship

The coexistence of national welfare states and free movement in the EU is made possible by a principle of ‘earned social citizenship’. Historically, the tension between free movement and the bounded welfare state was reconciled by granting the right to move only to the economically active (and their dependents) to the exclusion of the economically inactive and by establishing a coordination regime for social security systems to the exclusion of social assistance. This simple dichotomy was not tenable, but, when the right to free movement became open to economically non-active citizens, EU citizens were granted a right of residence throughout Europe “as long as they do not become an unreasonable burden on the social assistance system of the host Member State”. The 2014 Dano-judgment by the Court stresses that member states have “the possibility of refusing to grant social benefits to economically inactive Union citizens who exercise their right of free movement solely in order to obtain another Member State’s social assistance” [4]. Dion Kramer sketches the combination of continuity and change in the evolution of the EU’s principle of ‘earned social citizenship’ and situates that evolution in a broader notion of “neoliberal communitarianism”, which “combines a communitarian care of the national welfare state with a neo-liberal emphasis on the individual’s responsibility to achieve membership of that welfare community”. He labels it ‘neo-liberal’ since “it becomes the individual’s own responsibility, expressed in the form of ‘earning’ citizenship, to convert to a bounded community of economic, cultural and social values”[5]. Kramer sees dangers in the current evolution, as an expanding notion of individual responsibility, not only with regard to economic contribution but also with regard to cultural traits such as language, risks to be pushed further and further within the confines of the national welfare state itself. However, taking on board these cautionary notes, there is also a more positive reading of the notion of ‘earned social citizenship’ for mobile Europeans, at least if the EU would oblige its member states to develop comprehensive and adequate systems of minimum income protection and if an increasingly restrictive interpretation of what ‘earned social citizenship’ means can be avoided. In this more positive reading, a carefully delineated possibility for member states to exclude non-nationals from domains of social policy in which principles of compassion rather than principles of responsibility dominate (such as social assistance) would be a corollary of a duty for each welfare state to protect its own citizens against vulnerability on the basis of compassion. 

I would indeed argue that in a ‘European Social Union’ – a true union of welfare states – two complementary logics can apply legitimately with regard to social citizenship if they are applied conjointly: 

1) Economically active citizens have the right to take up employment opportunities across borders, and on the basis of employment they – and those who depend on them – ‘earn’ non-discriminatory access to all social benefits in the member state where they work, including protection against the consequences of involuntary inactivity (unemployment, illness). National regulations that guarantee fairness in labour markets apply fully to them. This serves both a pan-European notion of equal access to employment opportunities and the purpose of social cohesion in each welfare state. 

2) A non-active citizen who needs protection cannot simply rely on any member state of his (or her) choice: his nationality determines the member state which is first and foremost responsible for his protection. Under carefully delineated conditions, another member state to which he has no bond of nationality is allowed to say that the non-active citizen’s social protection would create an ‘unreasonable burden’ on its welfare state (these conditions must substantiate that, in the absence of a real link with the host member state, the right of free movement was exercised solely in order to benefit from the host state’s social assistance). In contrast, it would be ‘unreasonable’ for any member state not to provide adequate social protection for its national citizens, whatever the causes of their vulnerability and dependence. 

Obviously, setting the boundaries between these logics is a complex task and raises many questions. As Verschueren pointed out, there is both a broad and a narrow interpretation of the Dano judgment to which I referred earlier [6]. What are the exact conditions under which the notion of ‘unreasonable burden’ can be applied, and what is the role played by criteria of ‘integration in the host country’ to show a ‘real link’ with that country? The reciprocity that a member state can demand from nationals of another EU member state must be judiciously defined. Also, next to principles that apply to labour markets and income protection, a space of European social citizenship needs specific principles in the domains of education and health care. In addition, and importantly, if these logics lead to a regime of ‘enter at your own risk’ (whereby residence of non-active non-nationals is de facto tolerated, without guarantee of protection), this may lead to precariousness and marginalization of non-nationals [7].

I am not implying that, today, the EU and its member states apply these complimentary logics carefully and consistently: both with regard to ‘fair mobility’ and minimum income protection for the non-mobile citizens there is an agenda to be taken up (some of Ferrera’s proposals fit well into an agenda of ‘fair mobility’). However, these complexities, tensions and risks do not make these complementary logics illegitimate as a general framework for regulating social citizenship in the EU. If those principles were applied consistently, EU citizenship would speak both to the mobile and the non-mobile citizen: it would support mobility, but also impose on member states the adequate protection of and delivery of social services to the non-mobile. 



[1] There is no denying that formal equality of opportunity does not guarantee real, substantive equality of opportunity. This distinction is emphasized, rightly, by Bruzelius, C., Reinprecht, C. and Seeleib-Kaiser, M. (2017). Stratified Social Rights Limiting EU Citizenship, Journal of Common Market Studies; DOI:10.1111/jcms.12555 (although I’m not convinced by the policy solutions they propose – but space forbids to pursue this here). 

[2] A ‘posted worker’ is an employee who is sent by his employer to carry out a service in another EU member state on a temporary basis. Posted workers are different from EU mobile workers in that they remain in the host member state temporarily and do not integrate in its labour market, as they maintain an employment contract with an employer in their home (‘sending’) country. In contrast to posted workers, EU mobile citizens who work in another member state and have an employment contract with an employer in the latter member state are entitled to full equal treatment with nationals in access to employment, working conditions and all other social and tax conditions.

[3] I develop this argument in a paper on basic income, reciprocity and free movement: Vandenbroucke, F. (2017) Basic income in the European Union: a conundrum rather than a solution, ACCESS EUROPE Research Paper No. 2017/02. Available at SSRN: https://ssrn.com/abstract=3011847.

[4] Dano, C-333/13, EU: C: 2014:2358, para 78, emphasis added. 

[5] Kramer, D. (2016). Earning Social Citizenship in the European Union: Free Movement and Access to Social Assistance Benefits Reconstructed, Cambridge Yearbook of European Legal Studies, 18 (2016), pp. 270-301. The first quote is on p. 277; the second quote is on p. 272.

[6] Verschueren, H. (2015). Preventing ‘Benefit Tourism’ in the EU: a Narrow or Broad Interpretation of the Possibilities Offered by the ECJ in Dano?, Common Market Law Review, 52: 363-390.

[7] Heindlmaier, A. and Blauberger, M. (2017). Enter at your own risk: free movement of EU citizens in practice, West European Politics, DOI: 10.1080/01402382.2017.1294383

The Impact and Political Accountability of EU Citizenship

By Dorte Sindbjerg Martinsen (University of Copenhagen)


Maurizio Ferrera’s essay on how to take EU citizenship forward is an inspiring and welcome contribution to a heated, politicized debate. Ferrera not only presents the state of EU citizenship, its current challenges but also suggests concrete policy proposals how to make it more substantial and less counter-productive. His essay addresses the question raised by Rainer Bauböck: can the integrative function of EU citizenship be strengthened and how? 

Ferrera’s text raises several pertinent issues one could take up, but here I shall focus on the sketched tension between the ‘small constituency of mobile citizens’ and those who stay. As Ferrera writes, the hardest right of EU citizenship is the right to reside, work and become a member of the welfare community of another member state. At the same time, this core of EU citizenship has produced public and political concerns about social dumping and welfare tourism. To confront this tension, Ferrera proposes to empower the ‘stayers’ by, for example, introducing an EU social card while at the same time ‘dutifying’ EU citizens, for example by introducing a small earmarked ‘Social Europe’ tax.

While I agree that there is a pressing need to examine and confront the tension between the ‘free movers’ and the ‘stayers’, I see neither time nor current political support for such EU solutions to materialize. They may be interesting future objectives but there is a call for more immediate engagement with the tensions described, be they mainly perceived or real. First of all, in my view, as researchers we should engage in a fact-finding mission. We need to know more about how EU rules and rights actually work in the member states and what their outcomes are. Much of the debate has been assumptive and situational. However, as also noted by Ferrera, empirical evidence demonstrates that mobile EU citizens are net contributors to the public purse, i.e. at an aggregate level they contribute more to the welfare budget than they take out [1]. Such findings should lead to a more nuanced way of portraying mobile EU citizens. They pay income tax, VAT, corporate tax, estate tax and social security contributions in their hosting member state, tend to be relatively young and take time to claim benefits. The public revenue they generate are part of financing the welfare benefits, services and public goods for the ‘stayers’ too. In addition, research demonstrates that EU citizenship is stratified [2] and that when applied in practice, some EU citizens have only precarious status in their host member state [3]. 

This is not to say that EU mobility has no negative social and economic consequences. Some citizens – and some member states [4] – are obviously more fit for the internal market than others. Negative externalities should indeed be confronted politically. The question then becomes at what regulatory level and with which means? First of all, domestic politics is foremost responsible for scarce welfare resources, i.e. hospital beds, emergency care, social housing or school places, etc. Ordinary citizens may tend to blame Brussels because mobility rules come from Brussels, but Brussels does not decide on the level of taxation or the proper level of public investment. Domestic politics does and should be held accountable. Secondly, domestic politics is responsible for the implementation of EU rules. Social dumping, lowering wages and reducing health and safety at work places across the Union, is indeed a negative side-effect of free movement. The recently adopted enforcement directive concerning posting of workers gives the member states new means of monitoring compliance with the rules and introduces a principle of chain responsibility in the construction sectors. But the effectiveness of these new control measures again depends on national implementation and the resources allocated to control and correct for social dumping. Domestic politics shares political accountability for ineffective EU rules. The ‘blame-game’ seems so far to disregard domestic implementation and enforcement of Brussels’ mobility rules. Thirdly, EU politics is responsible for the adoption of EU rules and should be held accountable for their content and development. When unintended consequences of EU rules surface, it is a political obligation to correct such rules. Here there is no quick fix in a European context. Changing EU rules requires overcoming significant thresholds for the necessary majorities in both the Council of Ministers and the European Parliament. But it is not mission impossible [5]. If the Court of Justice of the European Union has interpreted the concept of worker in EU law in a way that deviates too far from political intentions, this calls for EU legislative politics. Otherwise, considerable variation in implementation will continue [6]. Or if member states can prove that influx of EU citizens or outflow of benefits challenge the financial sustainability of a specific welfare scheme, corrective mechanisms or exemptions should be adoptable. The latter form of differentiated integration may disturb the uniformity of EU rules – but could at the same time increase its domestic support. 

We have already seen the disruptive effects of political discourse where EU mobile citizens are regarded as welfare seekers and social dumpers; just recall the Brexit debate. Ferrera’s call for avoiding further disintegrative and counterproductive consequences of EU citizenship’s core rights is thus timely and urgent. Bridging the cleavage between the ‘mobile’ and the ‘stayers’ calls for further research, for multilevel politics as well as multilevel accountability. 



[1] See Dustmann C, Frattini T (2014) The fiscal effects of immigration to the UK. The Economic Journal 124(580): 593–643; Ruist J (2014) Free immigration and welfare access: The Swedish experience. Fiscal Studies 35(1): 19–39 and Martinsen, D.S and Rotger, G. P. (2017) The fiscal impact of EU immigration on the tax-financed welfare state: Testing the ‘welfare burden’ thesis. European Union Politics, http://journals.sagepub.com/eprint/TESAUcFRQ4jVRvp9aQkb/full . 

[2] Bruzelius, Cecilia, Constantin Reinprecht, and Martin Seeleib‐Kaiser.  2017. "Stratified Social Rights Limiting Eu Citizenship." JCMS: Journal of Common Market Studies, http://onlinelibrary.wiley.com/doi/10.1111/jcms.12555/full 

[3] Heindlmaier, Anita, and Michael Blauberger.  2017. "Enter at Your Own Risk: Free Movement of EU Citizens in Practice." West European Politics 40 (6): 1198-1217.

[4] Hassel, Anke, Jette Steen Knudsen, and Bettina Wagner.  2016. "Winning the Battle or Losing the War: The Impact of European Integration on Labour Market Institutions in Germany and Denmark." Journal of European Public Policy 23: 1218-39.

[5] Martinsen, Dorte Sindbjerg. 2015. An Ever More Powerful Court?: The Political Constraints of Legal Integration in the European Union: OUP Oxford.

[6] O'Brien, Charlotte, Eleanor Spaventa, and J. De Corninck. 2016. "Comparative Report 2015-the Concept of Worker under Article 45 TFEU and Certain Non-Standard Forms of Employment."

“Feed them first, then ask virtue of them”: Broadening and Deepening Freedom of Movement

By Andrea Sangiovanni (King’s College London)


Maurizio Ferrera’s contribution is characteristically sharp, engaged, and imaginative. In this comment, I will not unpack his various proposals. Rather, I want to discuss the way the issues are framed, and propose an alternative way of grounding them. 


Citizenship as an instrument for bonding and integrating

‘In the light of rising Euroscepticism, souvranisme and anti-immigration … sentiments’, Ferrera wonders under what conditions EU citizenship might play a more integrative role in European politics. Currently, EU citizenship only secures a thin set of entitlements (to nondiscrimination activated only when an EU citizen is involved in activities or situations that cross an internal EU border), and only secures them for a tiny fraction of the European population (primarily those who actually exercise their rights to freedom of movement, which amounts to less than 5% of the EU population). Ferrera’s proposals for reform aim both to broaden and deepen the appeal of EU citizenship, mainly by securing a novel set of entitlements to immobile citizens and by extending the range of social entitlements available to those who move.

Given Ferrera’s insistence that EU citizenship should play a more ‘integrative role’, the criteria by which we should judge whether his proposals would be successful, assuming they were ever adopted, are therefore explicitly functional. We should endorse the proposals if and insofar as they enhance the perceived legitimacy of further European social integration and if and insofar as they increase support for freedom of movement. Ferrera writes, ‘I have argued that it is precisely the provision of instrumental resources (money, benefits and services, infrastructures and so on) that could make EU citizenship more salient, visible and tangible for wide social constituencies. A smart enhancement and packaging of such resources … could be the trampoline for strengthening the social citizenship dimension of the EU…’ It is as if Ferrera were to say: “We (European elites?) agree that further European social integration and freedom of movement are desirable; the task that remains is to get EU publics to agree with us. How might we do that? By enhancing the symbolic, material, and instrumental significance of European citizenship in such and such ways. ‘Feed them first, then ask virtue of them’[1]”. 

What is odd about such a perspective is that it cannot be offered to EU publics themselves. Imagine a member of the public asks: ‘And why should I aim to augment European citizenship in the ways you propose?’ Given how Ferrera has framed his question, the answer must be: ‘Because it will get you to bond more with fellow Europeans and therefore assent to further EU social integration without undermining freedom of movement’. But that’s no answer at all, given she is asking why she should assent to the proposals, bond with other Europeans, and support freedom of movement in the first place

To be sure, there is nothing wrong with making an argument intended to propose reforms that might feasibly sustain the European project in the face of growing skepticism. And yet there is still something lacking. This contrast can be sharpened if we further imagine that EU publics in fact reject Ferrera’s proposals (despite the evidence that Ferrera has marshaled that indicates some support for the general direction). Should one abandon them as therefore misguided? Or might there be something still to be said for them? What might we say, for example, to an engaged, publically minded EU citizen that rejects Ferrera’s proposals because they believe either that (a) freedom of movement is a mistake (as many British do, including those who voted for Remain), (b) freedom of movement should remain formally open to all but without further support for either movers or stayers, or (c) freedom of movement should not be limited to EU nationals (but extended to all third-country nationals [TCNs] as well)?


Broadening and deepening freedom of movement

In the following, I want to sketch a response that provides an alternative basis for Ferrera’s proposed reforms while addressing (a), (b) and (c). 

With our publically minded EU citizen in view, what is the best argument in favor of EU-wide freedom of movement? One might argue that the free movement of persons is an essential aspect of the Single Market, and, as such, is to be recommended mainly as a device for securing a more efficient allocation of the factors of production. This is an advantage that leads, through productivity gains, to aggregate gains. But there is also an advantage, in principle, from the perspective of each individual. Freedom of movement and nondiscrimination expands every EU citizen’s choice set, providing them with an expanded range of opportunities both to seek gainful employment abroad and to pursue broader cultural, social, political and personal interests [2].

But, as Ferrera and others have rightly pointed out, freedom of movement also brings costs—costs, furthermore, that do not fall equally on everyone. In particular, there is some (albeit heavily contested) evidence that, while there are net aggregate economic benefits from greater immigration, some communities, some groups, and indeed some member states will inevitably lose out. In the same way as any shift in technology, say, from candlesticks to electric bulbs, will diminish the pay and bargaining power of the candlestick makers (or displace them entirely), the same can be said with immigration: a greater supply of cheaper, unorganised labor will put downward pressure on wages and diminish the bargaining power of those who work in immigrant-heavy sectors. At the same time, public services (education, healthcare, social services, etc.) in communities in which newly arrived immigrants concentrate will bear relatively greater burdens than other communities. Finally, member states that are net senders of immigrants may suffer brain drain, as their skilled labor force moves abroad [3]. These costs are most often borne not by the well-off but by those who are already disadvantaged. Our member of the public will want some explanation for why she must bear these costs to make way for gains that accrue mostly to others.

The best response will appeal to a broader conception of social justice for the European Union [4]. Consider that, in integrating, member states and their peoples open their societies, polities, economies, and territories to international and supranational control. By pooling sovereignty, member states and their peoples of course stand to gain, but the constraints of intergovernmental bargaining and supranational control often expose states both to a range of negative externalities and to risks and costs that they can no longer confront on their own. To face them, member states depend on the collaboration and cooperation of other member states and supranational actors. To name but one example, think of the constraints of monetary union, and the relative position of Greece and Germany within it. As I argue elsewhere [5], the best normative model for deciding how these benefits, costs, and risks ought to be distributed is grounded in a conception of reciprocity: member state peoples owe one another a fair return for their mutual submission to EU rules and supervision. The fair return for risks and losses is, in turn, best captured by the idea of a hypothetical insurance market, in which member state peoples know the risks associated with integration but not their place in that distribution. On this view, member state peoples and their citizens are owed a fair division of the gains—which are secured mainly through the convergence promised by the implementation of a Single Market—and indemnification against those risks and losses that are a result of integration, and which they could do little to prevent or avoid. This model can be used to support a much broader Social Union among member state peoples than at present (though stopping well short of providing support for an EU-wide federal welfare state). 

We can also use this framework to address our hypothetical members of the public and their concerns with respect to freedom of movement (recall [a] and [b]) [6]. As I have said, freedom of movement brings benefits, but with these benefits also come costs that fall disproportionately on some. Those on whom such costs fall – those whose communities, services, career opportunities and wages are most affected – have a claim, according to the reciprocity-based view of social justice I have just outlined, to be indemnified against these losses in exchange for their support for freedom of movement as a whole. The logic of this reciprocity-based view reinforces and undergirds Ferrera’s proposals for an EU fund (modeled on the Globalization Adjustment Fund) to ease the impact of mobility on affected groups. Although this is not discussed by Ferrera, we could also imagine extending the fund to provide for education and vocational programs in countries suffering from brain drain. This addresses the member of the public who wonders why she should support freedom of movement in the first place, given the costs involved (see [a] above), and, at the same time and in the other direction, addresses those who wonder why they have a duty to support those who bear the costs, given the aggregate benefits. 

From within such a reciprocity-based conception of social justice for the EU, what can be said on behalf Ferrera’s proposals for ‘empowering the stayers’? In this category, Ferrera includes, among other things, a proposal for a universal and transferable voucher system intended to compensate those who do not exercise their rights to freedom of movement. Here we can invoke again our member of the public who, in (b) above, wonders why freedom of movement should guarantee anything more than a formal right to move. An appealing response points to the difference between a merely formal and a more substantive equality of opportunity, not generally (i.e., with respect to all socioeconomic opportunities – as in Rawls’s Fair Equality of Opportunity principle – which would require vastly more redistribution across EU member states) but with respect to opportunities to exercise, more specifically, freedom of movement. Recall that one rationale for freedom of movement is an expansion of every EU citizen’s opportunity set. The value of that opportunity set to each individual will be very unequal if some can exercise the option to move easily and others, through no fault or choice of their own, cannot – for example, because they have dependents or lack sufficient resources to make use of that freedom. (Here I register a small disagreement with Ferrera, who does not distinguish – from the point of view of their respective entitlements – between those immobile citizens who freely choose to stay and those whose choice is much more constrained [7].) In those cases, providing merely formal freedom of movement unfairly disadvantages those who cannot easily move. As in the previous case, we can say that they have a reciprocity-based entitlement to compensation derived from their support for freedom of movement as a whole. 

The same logic, finally, can be used to buttress Ferrera’s perhaps most ambitious proposal, namely to set up a social insurance scheme – a kind of mobility fund – protecting workers who decide to exercise their free movement rights. Such a fund would have the effect of mitigating inequalities of opportunity to move that are due to differences, for example, in the exportability of benefits for mobile jobseekers. As Bruzelius et al. have shown, given differences in the exportability of benefits for jobseekers and limitations in access to social benefits for jobseekers in host states, it is much easier for someone to move from Britain to Latvia in search of work than the other way around [8]. An EU-funded mobility fund of the kind advocated by Ferrera would serve, among other things, to dampen these inequalities and so, once again, to address our hypothetical member of the public in (b). 


The duties of citizenship

In his comment, Christian Joppke wonders whether an excessive emphasis on the duties of citizenship betrays an anachronistic and potentially dangerous revival of what we might call Romantic citizenship. Allegiance and loyalty, death and ethnic belonging, exclusion of those who do not share in the myths of national identity, suspicion of immigrants, and so on, are the foundation stones of Romantic citizenship. To be sure, Ferrera invokes none of these in defense of his proposals, but Joppke worries that Ferrera’s proposals (whose aim is to strengthen allegiance to EU citizenship) have an unavoidably exclusionary ring to them. They both give too much credence to those who falsely see movers as ‘benefit tourists’ or (in the language of the CJEU) ‘unreasonable burdens’, and threaten to impose an artificial divide between EU citizens (who are entitled to the benefits of freedom of movement Ferrera advocates) and TCNs (who are not). 

I think that that Ferrera has a ready response. The first step is to emphasize that not all ‘citizenship duties’ are made equal. Ferrera here can easily agree with Joppke (as I, too, would) that the set of Romantic duties are outmoded and dangerous. But citizenship also includes more prosaic duties, e.g., to pay one’s taxes, as well as duties of civility, toleration, and, indeed, justice. These are duties that flow from what Rawls calls citizens’ ‘sense of justice’. It is these duties that support Ferrera’s proposals, not the Romantic ones. This becomes especially clear if we interpret those duties as obligations of reciprocity in the ways I have suggested. From this point of view, we do owe those whose communities, wages, and so on, are most affected indemnification – but this duty is compatible with both requiring evidence of such effects and with acceptance of the fact that movers are, on average, a net benefit – socially, culturally, fiscally, economically, politically – to the polity as a whole

What about the divide between TCNs and EU citizens (and so [c] above)? Here the response – again within a reciprocity-based perspective – is straightforward. Because legally resident TCNs participate in their host society’s political, civil, social, economic life (in the relevant sense) to the same extent as EU citizens, they bear the same duties and are owed the same benefits and advantages as member state citizens (even if they are economically inactive) [9]. And because of their legal residence in their host country, they also contribute willy-nilly to the European project. Recall that TCNs, too, contribute – in the same way as EU citizens – to the project of integration both in complying with laws enacted or constrained by the European legal order and in contributing (politically, socially, economically, etc.) in ways that ultimately support and sustain European institutions (and EU freedom of movement). To be sure, such an extension of duties and entitlements is not currently on the agenda, but the point is that it should be as a matter of justice. If Ferrera were to qualify his functionalism (which gives perhaps too much credence to the current state of public opinion), I do not see why a conclusion like this would not be available to him as well.

In this comment, I have not sought to challenge Ferrera’s proposed reforms. Rather, I have sought to ground them, not in a functional-empirical analysis of what is most likely to inspire support for EU citizenship, but in a broader conception of social justice. The two perspectives are not in direct competition, but they do depart from very different starting points. 



[1] As the Grand Inquisitor says in F. Dostoevsky, (1991), The Brothers Karamazov. R. Pevear and L. Volokhonsky (trans.)  New York: Vintage Books, p. 253.

[2] This point is well made in F. Vandenbroucke (2017), 'Basic Income in the European Union: A Conundrum Rather Than a Solution', SSRN Research Paper 2017/02, The Amsterdam Centre for Contemporary European Studies.

[3] To calibrate this effect, one must also take into account that many of the CEEC countries were happy to support free movement as it served as a means of relieving excessive labor supply. See, e.g., M. Kahanec (2013), 'Labor Mobility in an Enlarged European Union', in International Handbook on the Economics of Migration, A. Constant and C. Zimmerman (eds.), Cheltenham: Edward Elgar Publishing, 137-52 and references cited therein.

[4] For this point, see also the contribution to a previous EUDO debate by Daniel Thym. ‘The failure of Union Citizenship beyond the Single Market’. 

[5] See A. Sangiovanni (2013), 'Solidarity in the European Union', Oxford Journal of Legal Studies 33: 213-41; A. Sangiovanni (2012), 'Solidarity in the European Union: Problems and Prospects', in Philosophical Foundations of European Union Law, J. Dickson and P. Eleftheriadis (eds.), Oxford: Oxford University Press, 384-412; A. Sangiovanni, (forthcoming), The Bounds of Solidarity: International Distributive Justice, Reciprocity, and the European Union. Cambridge: Harvard University Press. Here of course I can only briefly sketch the model.

[6] I say more about the tension—and how to resolve it—between facilitating freedom of movement and domestic commitments to social solidarity in Sangiovanni, 'Solidarity in the European Union'.

[7] See also the useful discussion in a previous EUDO forum by Kieran Oberman, ‘What to say to those who stay? Free movement is a human right of universal value’.

[8] C. Bruzelius et al. (2017, forthcoming), 'Stratified Social Rights Limiting EU Citizenship', Journal of Common Market Studies

[9] I say much more about the grounds for such reciprocity in A. Sangiovanni (2007), 'Global Justice, Reciprocity, and the State', Philosophy & Public Affairs 35: 2-39.


EU Citizenship, Duties and Social Rights

By Martin Seeleib-Kaiser (University of Oxford)


Social rights and EU citizenship have moved from the fringe to the centre of the political debate. Ferrera’s proposals are timely and address important issues of this urgently needed political and academic debates. 

Since the ratification of the Maastricht Treaty (1993) European Union citizenship has formally become a reality and citizens of European Union Member States are no longer only citizens of the respective Member States, but also ‘multinational citizens’ (Aron 1974) of the European Union. However, welfare states continue to be largely defined through nation-state borders (Ferrera 2005), creating welfare state insiders and outsiders. Accordingly, EU migrant citizens  are often considered as outsiders, who access social benefits and services without having fulfilled their duty of having paid taxes in the country of destination. This perception has led to a significant politicisation of freedom of movement and to the notion of ‘welfare tourism’ in a number of Member States. 

Despite the at times dominant frame of ‘welfare tourism’, especially in the UK media, the main reason for intra-EU migration is work. Due to high employment rates among EU migrant citizens, it is not surprising that empirically there is no evidence of ‘welfare tourism.’ Moreover, various analyses have demonstrated that EU migrant citizens are net contributors in countries of destination, i.e. they contribute more in taxes and social (insurance) contributions than they take out in benefits and services (cf. Dustmann/Frattini 2014; Martinsen/Rotger 2017). As a group EU migrant citizens ‘over-fulfil’ their duty to contribute to funding welfare benefits and services in the Member State of destination. This obviously does not mean that every EU migrant citizen fulfils an individual duty. But, does this mean s/he should not be entitled to minimum income benefits or services? In this context it might be helpful to highlight that welfare states do not apply the principle of an individual duty to nationals or permanent residents as a precondition for receiving (subsistence) benefits or certain social services, such as health care. And there are good reasons not to do so!

Nevertheless, the significant increase in intra-EU migration has led to problems and challenges at the local and regional level putting pressure on social services. Ferrera suggests the establishment of a special EU fund to address these problems, while Joppke argues that such a fund would benefit those countries that already benefit from intra-EU migration. In my view, this debate seems rather academic, as EU funds to deal with challenges arising from intra-EU migration are already available under current EU funding arrangements. By using resources from the European Social Fund (ESF) and the Fund for European Aid to the Most Deprived (FEAD) affected local authorities and organizations, for instance in Germany and Sweden, were able to address some of the challenges arising from intra-EU migration at the local level. In other words, existing European funds can provide local actors with additional resources, without necessarily providing Member States that benefit from intra-EU migration with additional funds. No such funds were used in England to address the challenges in the localities most affected by intra-EU migration -- a political choice by the UK government! For the future it would seem reasonable to increase the overall levels of the ESF or FEAD and making these funds more conditional upon addressing ‘European’ social issues (including the potential negative effects of intra-EU migration at the local level, be this in the countries of origin or destination), thereby strengthening EU social citizenship at the local level (cf. Bruzelius et al. 2014). 

Another challenge associated with EU citizenship is the risk of exploitation in labour and housing markets. Job-seeking EU migrant citizens from Central and Eastern European as well as Southern Member States often cannot rely on substantive social rights, as the system of Social Security Coordination does not provide any substantive exportable unemployment benefits for them. As a consequence of residence requirements they are neither entitled to minimum income benefits in the country of destination, putting them at risk of exploitation. If one considers the concept of freedom of movement not only as a negative liberty, but also as a positive right, it would seem reasonable to introduce a European Minimum Income Scheme or a supra-national unemployment scheme, as suggested by Ferrera, to address the identified challenge of insufficient social security and risk of exploitation among job-seeking EU migrant citizens (cf. Bruzelius et al. 2017). 

Vandenbroucke suggests the introduction of an EU minimum wage, strengthening the ability of Member States to provide good and comprehensive social protection at the national level and reforming the existing arrangements for posted workers. These are laudable proposals, but they would seem largely ineffective to address the problems of potential exploitation among EU migrant citizens without substantive exportable unemployment benefits or insufficient social protection, especially since main destination countries, such as Britain and Germany, already have national minimum wage systems. It is the duty of Member States to enforce national and EU minimum standards in labour and social law to avoid social dumping and the undermining of national working conditions for this we do not need new regulation, but the enforcement of current laws (cf. Bruzelius et al. 2014)! In this context it seems worthwhile to note that British authorities have only recently started to ‘accept’ the duty to enforce minimum wage and working conditions by appointing the UK’s first labour market enforcement chief (Khan 2017).

Irrespective of the increasing importance of EU citizenship and social rights in the current political and academic debates, many participants still shy away from getting to the core of EU citizenship as a fundamental right. The issue of social rights and duties of EU migrant citizens within the EU is not sui generis, as it has been at the centre of many political and judicial debates in (con)federal jurisdictions. In this context it might be worthwhile to learn from two historical examples: the North German Confederation (Norddeutscher Bund, NDB; 1867-1870) and the United States of America. Citizenship of these two jurisdictions was derived from the citizenship of the constituent states – very similar to EU citizenship. Furthermore, important elements of the welfare state, such as providing a minimum of subsistence or certain social services, were the responsibility of the constituent states. For Bismarck the system of local and regional poor relief with restrictive residence requirements was incompatible with the principle of freedom of movement in the NDB. Consequently, the Unterstützungswohnsitzgesetz (law on the domicile for social assistance) of 1870 entitled every poor person within the territory of the NDB to poor relief at the place of residence, irrespective of the Member State of origin and duration of residence. The US Supreme Court ruled against the State of California, which in the 1990s once again had introduced minimum residence requirements for the state welfare programme, declaring the residence clause as unconstitutional, arguing: “Citizens of the United States, whether rich or poor, have the right to choose to be citizens of the State wherein they reside. … The States, however, do not have any right to select their citizens” (Saenz v. Roe; 526 U.S. 489 (1999): 511; cf. Bruzelius/Seeleib-Kaiser 2017). 

For EU citizenship to become truly a fundamental status it is necessary to overcome the differentiation between economically active and non-active EU migrant citizens and finally abolish the residence requirements, as it was the case in the NDB and the US -- territorial jurisdictions with isopolitical citizenship. Simply put: to be, or not to be, an EU citizen that is the question!  



[1] I define EU migrant citizens as EU citizens who are, or intend to become, habitually resident in a Member State of which they do not hold nationality. This category differs from EU mobile citizens, i.e. citizens who move across borders for limited periods of time. EU citizens belonging to the category of mobile citizens fall into the subcategories of cross-border workers, posted workers, students or tourists.



Aron, R. (1974) ‘Is Multinational citizenship possible?’, Social Research, 41 (4): 638-656.

Bruzelius, C.; Chase, E; and Seeleib-Kaiser, M. (2014) “Semi-Sovereign Welfare States, Social Rights of EU Migrant Citizens and the Need for Strong State Capacities,” Social Europe Journal, Research Essay No. 3.

Bruzelius, C.; Reinprecht, C.; and Seeleib‐Kaiser, M. (2017) “Stratified Social Rights Limiting EU Citizenship.”  Journal of Common Market Studies, doi: 10.1111/jcms.12555.

Bruzelius, C.; Seeleib-Kaiser, M. (2017) Freedom of Movement and the Right to a Minimum Income: Comparing the North German Confederation, the US and the EU. Paper prepared for the 2017 Annual Conference of the Research Committee 19, ISA, University of North Carolina, Chapel Hill, June 22-24, 2017.

Dustmann C, Frattini T (2014) “The fiscal effects of immigration to the UK,” The Economic Journal 124(580): 593–643

Ferrera, M. (2005) The boundaries of welfare (Oxford: Oxford University Press).

Khan, M. (2017) “UK appoints enforcer to crack down on minimum wage abuse,” in Financial Times, January 17, 2017, available at https://www.ft.com/content/b61d7370-d31e-11e6-9341-7393bb2e1b51

Martinsen, D. S.; Rotger, G. P. (2017) “The Fiscal Impact of EU Immigration on the Tax-financed Welfare State,” in: European Union Politics, DOI: https://doi.org/10.1177/1465116517717340.

Pennings, F. (2015) European Social Security Law (Cambridge: Intersentia), 6th Ed.


Why Compensating the “Stayers” for the Costs of Mobility is the Wrong Way to Go

By Julia Hermann (Utrecht University)


Like most of the previous respondents, I agree with Ferrera that the unequal division of the costs and benefits of free movement calls for action. My main criticism concerns his proposal to compensate non-mobile citizens. In my response, I shall expand on Christian Joppke’s critique of Ferrera’s presumption that “moving” causes harm that “stayers” should be indemnified for.

Ferrera argues that one way of strengthening the integrative capacity of EU citizenship would be to compensate those EU citizens who do not make use of their right to free movement for the negative effects of intra-EU mobility, and to empower them through particular initiatives. Joppke takes this to be a non-starter, because by making such a proposal, Ferrera confirms the populist portray of migrants as perpetrators and natives as victims and “buys into the populists’ hideous re-labelling of mobile EU citizens as ‘immigrants’”. I agree with the direction of this criticism, but not with Joppke’s apparent denial of the existence of real adverse effects of freedom of movement. A crucial question is to what extent the perceived negative externalities are real. Ferrera is fully aware of the fact that some of the fears are ungrounded, and Joppke rightly criticizes him for not addressing this when he makes his proposals for compensating and empowering non-mobile citizens. However, Joppke seems to presume that there are no negative externalities at all, thereby ignoring the point emphasised by Ferrera that despite the fact that, in the aggregate, mobility tends to benefit the receiving member states, there are also adverse effects, which are felt at the local level. We have to identify the real adverse effects in order to get a clearer picture of those perceptions of negative effects that are false, and must then ask what can and ought to be done to change these false perceptions.

Ferrera notes that in a particular territorial area, economic sector or policy field, the negative economic and social externalities (e.g. a decrease in available jobs, hospital beds, emergency care, social housing, school places etc.) may exceed the positive ones. He presents the negative externalities as “produced by the mobiles”. Vandenbroucke and Sindbjerg Martinsen address “social dumping”. Vandenbroucke moreover mentions the possibility that the negative externalities may be more real for countries of mass emigration than for countries of immigration. Independently of the answer to that question, it is important to address the fact that mobility can place a big burden on the latter countries. Take a country such as Italy, where many well-educated young people emigrate in order to work in Britain, Germany, The Netherlands, etc. (brain drain). Would compensating, for instance, non-mobile Italian citizens be the adequate response to the brain drain that the country experiences? No. The adequate response would be to make the reforms necessary for making it attractive for talented young Italians to stay in their country, and for attracting talented citizens of other member states.

The proposal to compensate non-mobile citizens is problematic for a number of reasons. First, it gains support from the view that the mobiles produce the negative externalities, which is not correct. They are produced by the system, i.e., they are the consequences of giving people the right to free movement without providing mechanisms that prevent a race to the bottom of welfare services, wage dumping and so forth. Once we abandon the picture of movers producing negative externalities, Ferrera’s proposal becomes much less plausible. Second, every EU citizen is a potential mover. Someone who is a stayer today might be a mover tomorrow. Every EU citizen has the formal freedom of movement. At any point in time, this is not a substantial freedom for many people, but this situation is not static. Not only is it possible that stayers may want to exercise their freedom of movement in the future, it is also possible that they get into a situation where they find themselves compelled to do so. Third, the demand for compensation doesn’t fit well with Ferrera’s claim that one of the corresponding duties of the right to free-movement is “to bear the burdens of ‘hospitality’”. Fourth, the demand makes negative externalities seem unavoidable, which is not the case. Fifth, although the burdens are not shared equally, mobility ultimately affects society as a whole when it leads to a decline of domestic cohesion. In the long run, the burdens are not felt merely locally, but globally. Finally, compensatory measures don’t go far enough. We have to address the systemic flaws, the origins of the European malaise

The costs of mobility call for two things: a justification to those bearing them disproportionately, and measures to reduce them. Those who lose out are entitled to a justification for why they ought to support freedom of movement (see Sangiovanni’s contribution to this debate). It might well be that such a justification is currently not available, because if we consider the situation of EU citizens on the whole, the costs of free movement might be disproportionately high. There seems to be an agreement between most of the respondents in this forum that the required justification would be available if the social dimension of the EU were strengthened significantly, implying that, as things are now, many EU citizens are entirely justified in opposing freedom of movement.

Given the present form of the EU, some of the negative effects might indeed be unavoidable. Due to big differences between member states concerning minimum wage regulations, access to social protection, flexibility of the labour market, taxes etc., mobility of workers leads to a race to the bottom. As Vandenbroucke writes, “if we don’t want immigration to boost a precarious, hyper-flexible segment of labour markets, there should be limits to precariousness and flexibility across the board”. Vandenbroucke claims that the only way to tackle the distributive risks associated with mobility is to be more demanding with regard to the quality of welfare states. He asks for common principles, e.g. “All workers are covered by minimum wage regulation”. Seeleib-Kaiser argues that the relevant regulation (in the form of national and EU minimum standards in labour and social law) is already there but needs to be enforced. At this point the question becomes whether the EU is, in its current state, able to enforce it. Vandenbroucke admits that “developing and translating such principles into tangible realities is an uphill battle in today’s Europe”, but emphasises that “there is no alternative if free movement is to be reconciled with domestic cohesion”. Ferrera proposes to establish a supranational scheme providing homogeneous protections to mobile workers. Sangiovanni stresses that justice requires a much broader social union than we currently have. He suggests grounding Ferrera’s proposals in his conception of justice for the European Union. 

There are doubts as to whether the EU as we know it is capable of achieving the political union necessary for broadening the social union. Because the EU is, in the first instance, an economic union – the project of a common market – and because of its well-known democratic deficit, a broader social union might only be reachable via fundamental reforms. Perhaps we even need to start all over again. Ferrera may be right that “incrementalism is the only policy strategy for the EU today”, but this may mean that our problem is not solvable by any of the policy strategies that are available to the EU in its current form. One rather radical proposal is to create a European Republic, in which there are no nation-states anymore, but only regions, cities, and – most importantly – citizens [1]. I do not wish to defend this utopia here, but want to emphasise that there is the real possibility that in its current form, the EU cannot achieve the required social union. This would mean that due to the internal constitution of the EU, EU-citizenship couldn’t fulfil its integrative functions. If we follow Ulrike Guérot, citizenship that fosters integration and solidarity has to imply equality in front of the law, equal general voting rights and equal social participatory rights [2]. In today’s EU, citizens do not have any of this. Unfortunately, this is not stuff that could simply be added to the “EU-citizenship container”. I am not saying that this is the correct diagnosis. My point is that given the enormous problems the EU is facing, we have to take this possibility very seriously.



[1] Guérot, U. (2017), Warum Europa eine Republik werden muss! Eine politische Utopie. Third edition. Bonn: Dietz.

[2] Ibid.

Balancing the Rights of European Citizenship with Duties Towards National Citizens: An Inter-national Perspective

By Richard Bellamy (European University Institute)


Discussions of European citizenship have tended to mobilise around two somewhat divergent views. The first view, well represented by Maurizio Ferrera’s argument for his ingenious proposals, treats this status instrumentally: as a mechanism for promoting both greater allegiance to the EU from those individuals subject to its authority and greater solidarity amongst them. As with Ferrera’s argument, such views tend to conceive European citizenship in analogous terms to citizenship within the member states, with the goal being to wean individuals away from the national to the supranational, at least to some degree (Habermas 1992 remains the classic statement of this approach). By contrast, the second view, of which Christian Joppke’s contribution offers a fine example, treats European citizenship as transnational. So conceived, it involves not only denationalizing citizenship but also transforming the very nature of citizenship itself (for full accounts of this thesis, see Kostakopolou 2007 and Kochenov 2014). A citizen becomes no more than an individual bearer of liberal rights, with no special duties to any particular political community but only the moral obligations to uphold the liberal rights of all other individuals (actually Joppke is silent on this issue, but I assume de-dutification can only be taken so far). 

Although Ferrera’s account moves in the direction of a supranational view, his policy proposals occupy a mid-point, providing a transitionary phase that seeks to reconcile the national to the transnational. By contrast to Joppke, I believe such a reconciliation is not only a pragmatically necessary endeavour but also normatively justifiable. However, I shall argue that the grounds for doing so indicate difficulties with the conventional supra- and trans-national views of European citizenship, and point to an alternative view that I shall call inter-national. 

As Andrea Sangiovanni has observed in his contribution, Ferrera’s declared grounding for his proposals beg the question of why the vast majority of citizens of the different member states, who do not themselves take advantage of freedom of movement, should view further European integration and the creation of social solidarity at the European level as desirable in the first place. Although Ferrera does not articulate his reasoning explicitly, the implicit rationale would appear to be the two standard functional and moral arguments that are habitually offered for an ever closer Union. The functionalist case contends that in an interconnected world, the only way to take advantage of the economic benefits globalisation brings while managing its costs is through scaling up beyond the nation state. The moral case involves a form of cosmopolitanism, whereby the argument holds that if we are to treat all individuals as of equal moral worth we must likewise remove those political boundaries that entail treating them unequally. Both these arguments certainly need to be taken seriously. Whether they can only be adequately or appropriately addressed by a scaling up of political authority to the regional level or beyond is another matter (for a discussion of these two views, see Bellamy 2015a).

Given these arguments, the obvious question to ask is why we should take national citizenship seriously at all? As Joppke contends, surely the moral argument in particular suggests we should avoid either pandering to nationalism in the short term or replicating its exclusionary characteristics at the supranational level in the long term? One reason arises from the fact that, for all their faults, democratic nation states, such as those that are members of the EU, provide the most effective political systems so far devised for rendering governments accountable to the governed in ways that encourage these governments to pursue policies aimed at treating the governed with equal concern and respect, and thereby securing their rights. Pace the transnational de-dutifyers, individual rights claims are likely to go unheeded without some political and legal authority capable of upholding them consistently and coherently over time. Meanwhile, that authority will only be likely to uphold these rights in an impartial and fair way if suitably constrained to do so, with the most effective constraint being to subject rulers to a system of equal influence and control by the ruled. As a result of such a set up, citizenship becomes the ‘right to have rights’ (see Bellamy 2001). Indeed, it could be argued that it is only within such a context that rights can be either effectively or legitimately claimed (Bellamy 2012a). For it is only through participating, on the one hand, in a scheme of social and economic cooperation capable of supporting expenditure on a suitable public infrastructure needed to secure rights; and, on the other hand, within a scheme of political cooperation through which individual rights can be claimed, justified and agreed to on equal terms to others, that a system of rights that is fair and sustainable can emerge. The duties that arise from involvement in these two schemes may have gained a romantic, nationalist colouring, yet as Andrea Sangiovanni notes they are for the most part prosaic – paying taxes, treating others with civility – not least by accepting the rules of the political game, and acknowledging the obligation to treat others with equal concern and respect. 

The transnational view tends to overlook the role democratic states have had and continue to have in generating rights not only for their citizens but also for those citizens of other countries who may temporarily move to visit or work there. They treat them as self-evident moral properties of individuals that apparently can be met spontaneously (for a detailed critique see Bellamy 2015b). Many proponents of the transnational view among legal academics have also been overly sanguine about the judicialisation of the EUs transnational citizenship provisions, which has largely occurred as an extension of the lex mercatoria of the single market (see Bellamy 2012b). As Susanne Schmidt remarks in her contribution, the deployment of litigation by market actors gains a false legitimacy from exploiting the terminology of citizenship rights. For it allows those actors with an economic interest in further market integration - the majority of which are enterprises rather than individuals - a privileged venue that is biased against, and often inaccessible by, the immobile majority, undermining the relative political equality offered by democratic citizenship (Isiksel 2016: 142-3). Nevertheless, transnational critics are right to note that many of these same states have been, and still can be, great sources of injustice for those individuals and whole peoples they have dominated either directly, through colonization and war, or indirectly, through exploitative trade deals, and who they continue to exclude through various immigration policies. 

In this regard, the supranational solution might seem superior because it can overcome the possibility of domination and exclusion simply by being more inclusive of who is a citizen. Yet, as Ferrera acknowledges, establishing anything coming close to such a social and political system at the national level required a long period of political struggle facilitated by mass conscription in war, which gave ordinary people a degree of leverage over those whose wars they were obliged to fight – not least in prompting the establishment of social insurance and ultimately the granting universal adult suffrage. Meanwhile, a degree of bonding sufficient to agree upon and abide by collectively binding decisions was facilitated not only by boundaries delineating among whom they were made and to whom they applied, as Ferrera reports, but also by a common history, culture and language. These latter features in particular may belong to the romantic attachments that Joppke deplores as reactionary throw-backs, but they served a functional purpose in facilitating the operation of democracy as a mechanism for the public realization of the equal status of citizens. For to achieve that result, citizens must be able to air their disagreements and deliberate in ways all can see are fair and addressed to their common concerns, all of which assumes a public sphere and shared interests. As the events unfolding in Catalonia indicate, where these features are deemed to be lacking, then large numbers of people are likely to be willing to exercise their liberal rights to freedom of speech and association to militate for a political community that can embody them and can only be prevented from doing so through coercion. 

Such factors make a rapid shift to supra-nationalism unlikely if not unfeasible a priori. Even if achievable it may also be undesirable. There are a plurality of reasonable ways of combining and pursuing the goods that give value to human lives, and even among liberal democracies there can be found a variety of economic, social, legal and political systems. Within a large, socially and culturally diverse political unit, the risk of common policies being inefficient and inequitable increases, along with the prospect of majority tyranny over consistent minorities. Finally, just as in a domestic political system, checks and balances between different institutions can be important for ensuring that individuals and groups of individuals all get treated with equal concern and respect in the making and implementation of collective policies, so a collaborative system of mutually checking and balancing states can operate in a similar manner.

Against this background, an alternative characterization of Ferrera’s proposals holds that they comprise not transitional steps aimed at easing and promoting a gradual shift towards the development of a European supra-national citizenship but as components of an inter-national European citizenship designed to supplement rather supplant national citizenship in response to the functional and moral arguments reported above. Such a status forms part of a more general international arrangement aimed at promoting equality of concern and respect between the citizenship regimes of its constituent member states, not least by facilitating the movement of citizens between these different regimes. Within an interconnected world, the national citizens of democratic states can be regarded as having obligations not to dominate the national citizens of other democratic states, not least by undercutting their capacity for self-government. They also have joint obligations to address problems that can only be tackled through collaboration and that involve harms and injustices that almost all moral systems regard as such. These include the prevention of the most egregious infringements of basic human rights, and the need to tackle global poverty and avoid a climatic catastrophe. A feature of such an arrangement is that it does not seek to subsume national citizenship regimes within a more encompassing supranational regime but rather to facilitate their effective and legitimate operation through cooperation and the mutual regulation of their interactions. 

I have argued elsewhere that to a large, if imperfect, extent the EU conforms to this kind of arrangement (Bellamy 2103), not least through its decision making involving the normative logic of a two-level game whereby governments reach consensual agreements as the representatives of their respective peoples, from whom these agreements must be capable of winning their acceptance over time. I call such an arrangement a form of ‘republican intergovernmentalism’. Union citizenship likewise can be assimilated to this account as a form of inter-national citizenship. Inter-national citizenship has two main aims. On the one hand, it addresses both the functional and the cosmopolitan critiques of national citizenship regimes by allowing citizens to move freely between these regimes without discrimination on grounds of nationality so far as access to employment or short or long-term residence is concerned. On the other hand, though, it remains justified to maintain the viability and diversity of these citizenship regimes and the solidarity among national citizens that make them possible. After all, they remain the source of the rights that mobile citizens move to enjoy. That can involve rules limiting immediate access to certain social benefits in the case of individuals who have yet to find employment and contribute to them. It would also justify giving a vote only in local as opposed to national elections for those unwilling to become national citizens and to commit to the future sustainability of the citizenship regime. Finally, it would entail the possibility – as suggested by Ferrera – for states that are a party to this arrangement to collectively agree on some indemnification for those national citizens who lose out. Note that in this conception of citizenship the source of rights is strictly speaking provided by the contracting states that agree to this arrangement and fulfil the obligations necessary to their realisation rather than any supra-national entity per se. Hence, it is logical that the entitlement to access this status stems from being a citizen of one of the contracting states. Moreover, the rights associated with an ‘inter-national’ conception are ‘isopolitical’ rather than ‘sympolitical’. The policies that Ferrera proposes can all be offered on this account on ‘isopolitical’ grounds – as part of the mutual recognition and associated duties of the citizenship regimes of the member states.

As I remarked, this account fits the existing citizenship provisions relatively well, at least once the relevant directives are taken alongside the rights enumerated in the Treaties. As Schmidt notes, it has been the reading in of an aspirational, transnational, account of citizenship by the Court post Grzelczek that has distorted the justified balance between the rights of European citizenship and their duties towards (as well as of) national citizens that lies at the heart of this status. Similarly, though Ferrera tackles a genuine and pressing issue in an innovative and imaginative way, I believe his approach will have not only more appeal but also a better justification through being grounded in an inter- rather than a supra- national account of European citizenship. 



Bellamy, R. (2001). `The “Right to have Rights”: Citizenship Practice and the Political Constitution of the EU’ in R. Bellamy and A. Warleigh (eds) Citizenship and Governance in the European Union, (Continuum, 2001), pp. 41-70

Bellamy, R. (2012a). `Rights as Democracy’, Critical Review of International Social and Political Philosophy, 15(4): 449-471

Bellamy, R. (2012b). ‘The Liberty of the Moderns: Civic and Market Freedom in the EU’, Global Constitutionalism: Human Rights, Democracy, Rule of Law 1(1): 141-72

Bellamy, R. (2013). ‘An Ever Closer Union of Peoples: Republican Intergovernmentalism, Demoi-cracy and Representation in the EU’, Journal of European Integration, 35(5): 499-516. 

Bellamy, R. (2015a). ‘Between Cosmopolis and Community: Justice and Legitimacy in A European Union of Peoples’ in S. Tierney (ed), Nationalism and Globalisation: New Settings, New Challenges, (Hart, 2015), Ch 10, pp. 207-232

Bellamy, R. (2015b). ‘A Duty-Free Europe? What’s Wrong with Kochenov’s Account of EU Citizenship Rights’, European Law Journal, 21(4): 558-565.

Habermas, J. (1992). ‘Citizenship and National Identity: Some Reflections on the Future of Europe’, Praxis International, 12(1): 1-19.

Isiksel, T. (2016) Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State, Oxford: Oxford University Press

Kochenov, D. (2014). ‘EU Citizenship without Duties’, European Law Journal, 20(4): 482-498.

Kostakopolou, D. (2007). ‘European Union Citizenship: Writing the Future’, European Law Journal, 13(5): 623-646.

Grab the Horns of the Dilemma and Ride the Bull

By Rainer Bauböck (European University Institute)


EU citizenship was conceived almost by stealth through the jurisprudence of the European Court of Justice. When the Maastricht Treaty officially announced its birth, it was quickly dismissed as either “little more than a cynical exercise in public relations”[1]  or as a “pie in the sky”[2].  No longer: today EU citizenship is hotly contested in public debates in nearly all of the member states. At the heart of this debate is the tension between free movement and social protection. The contributions published in this forum mirror the arguments heard in public arenas at a much higher level of analytical reflection. But what they somehow do not seem to reflect is the heat of the debate. By this I do not mean that scholars should shout insults at each other when they disagree. What I mean is that they should put more emphasis in their analyses on political contestation and participation as core indicators for the salience and strength of democratic citizenship. 

I find myself almost entirely in agreement with Maurizio Ferrera’s nuanced and well-considered analysis and policy proposals. I agree both with his diagnosis that the burdens created by free movement in Europe threaten to undermine national welfare regimes. There are perceived burdens that erode political support for European integration and real burdens that put strains on local communities and less skilled ‘stayers’ in the destination as well as the origin countries of mobile EU citizens. I agree also that there is no magic solution for the free movement–social citizenship dilemma, but that building a ‘social pillar’ of EU citizenship and fortifying it with some ‘prosaic duties’ (Andrea Sangiovanni) would help to blunt the sharp edges of the dilemma to a certain extent. 

Yet I think the dilemma is even sharper than Ferrera and most of our authors acknowledge. The ‘permissive consensus’ that allowed EU integration to make sometimes steady and sometimes halting progress without ever retreating is in shatters today. It may be relatively easy to convince the Commission of the incremental improvements proposed by Ferrera, but it seems much more difficult to imagine sufficiently broad policy coalitions involving member state governments that would endorse them. My conclusion will be that bolder proposals for strengthening EU citizenship are worth fighting for, and that in a much more politicised environment they need to be addressed directly to European citizens in attempts to win their support and votes.

I arrive at this conclusion by focusing on two preliminary questions that must be answered before we can discuss how to strengthen EU citizenship. The first one is, as pointed out by Frank Vandenbroucke and Andrea Sangiovanni, that we need to know why we ought to do so. My answer will differ somewhat from theirs. I think that normative reasons to embrace EU citizenship are largely contextual and contingent, but this does not mean that they lack force. The second prior question is what it is that we want to strengthen. This is a question about the nature of EU citizenship, its potential and limits. I argue that the derivative, multilevel and transnational construction of EU citizenship is full of tensions, which creates a need for political rather than purely judicial or technocratic solutions. 


A European community of destiny

For Vandenbroucke, free movement “means that EU citizens share an opportunity set, which is much larger than the opportunity sets offered by separate national labour markets”. Following Rawls, Vandenbroucke regards equal access to opportunities for all citizens within a polity as a basic principle of justice that is lexically prior to the difference principle, which requires that social inequalities are justified only if they improve the position of the worst-off. This line of reasoning supports giving general priority to free movement where it conflicts with redistributive and regulatory welfare policies, although, according to Vandenbroucke, such conflicts are not inevitable. 

Let us assume this liberal view of justice is sound and correctly applied. Why should it then stop at the borders of the EU? Should liberal states not be required to seek to expand their citizens’ set of opportunities by concluding reciprocity-based agreements on free movement also with third countries? Switzerland and Norway are already involved in such arrangements with the EU. Why not extend them to Canada, Australia and New Zealand? In fact, reciprocity-based free movement arrangements have existed, prior to EU accession, between the UK and Ireland and, independently of the EU, between Australia and New Zealand as well as between several South American states. Moreover, a rapidly increasing number of individuals enjoy today free movement with full access to national labour markets without any coordination between the states involved simply because they possess several nationalities. The point is that, although free movement is the core right of EU citizenship, it is not necessary to form a political union with a common citizenship in order to realise the goal of expanding opportunity sets through international freedom of movement [3].  In Paul Magnette’s terminology introduced by Ferrera, the isopolitical goal of free movement does not require the construction of European Union citizenship, which is to a significant extent sympolitical. So the normative argument for free movement alone cannot explain why EU citizenship needs to be strengthened. 

For Sangiovanni freedom of movement is not a sufficient answer to why citizens should support this goal. While free movement expands every citizen’s choice set and range of opportunities, it is also politically contested – as the Brexit referendum has clearly demonstrated – and can entail significant costs for local communities and citizens who are – often involuntarily – insufficiently mobile. For Sangiovanni, “the best response will appeal to a broader conception of social justice for the European Union.” This is indeed an important step towards answering the normative question. Duties of solidarity and social justice in a union explain better why citizens ought to support adding a social pillar or contributory duties to the present content of EU citizenship. 

Yet I am not sure this answer is sufficient. As with Vandenbroucke’s argument, there is a nagging question raised by global justice theorists: Why should duties of solidarity and social justice stop at the EU borders?  First, we live in a world in which states are interconnected and people are interdependent to an extent never seen previously in human history. Conditions for reciprocity-based solidarity are therefore present not only within the EU but on a global scale. Second, disparities in income and wealth are far greater between the EU and Africa than within the Union. Does the EU therefore have a duty to expand the opportunities of African citizens and to include them in its conceptions of social justice by offering membership to their states? 

Unlike Vandenbroucke’s argument from free movement that is by its very nature expansive, the social justice argument could also lead to the opposite conclusion. In a multilevel union of states, citizens can raise the question – and many of them do – why social justice at the level of the Union should take priority over social justice at the national level in cases where the two conflict with each other. If, as John Rawls thought, social justice is a matter of fairness and reciprocity among citizens involved in a comprehensive scheme of cooperation rather than among human beings per se, then it seems prima facie an open question whether the Union ought to add social justice elements to its free movement-based citizenship or should instead let member states strengthen their national schemes of social citizenship and enable them to do so even at the price of some territorial closure. 

In my view, the question within which political unit free movement and social justice ought to be realised and reconciled with each other requires an entirely different answer. The European Union has a claim to be supported by its citizens as such a unit – in addition to the state whose nationals they are and in addition to their duties of global justice – because of the historical context in which Europe finds itself today. The EU is not a response to normative requirements of justice beyond the nation-state; it is a response to the conditions for democracy in Europe. 

The two most basic conditions for democratic self-government are the prevention of external domination (through war, colonialism or economic domination by external actors) and internal domination (through authoritarian political rule or political domination exercised by powerful economic groups). The European Union was born out of the desire to make war between European states impossible and its expansion to Portugal, Spain, Greece and the former communist states was driven by the desire to prevent forever the return of authoritarian rule in Europe. Threats of internal and external domination of European democracies are, however, still very much present. Today they take the shape of an authoritarian transformation of democracy through right wing populist parties in power and of external economic domination through powerful corporations. The shrinking demographic, economic and military weight of Europe in the world should not be regarded as per se a problem for stabilising democracy, but it provides a strong reason for European states to pool their resources when addressing external threats. 

These are normative reasons why European states have formed the Union and should want to maintain and strengthen it. They are further strengthened by the commitments they have made to each other when deepening integration with each round of amending the European Treaties. And they are supported by rational self-interests to avoid the costs of exit. As Brexit illustrates, these costs are very high – not because Michel Barnier tries to drive them up, but because of the external conditions the EU states are exposed to and because of those internal conditions that they have created together. The latter conditions explain why staying outside is not as costly as leaving. The European Union has in this – prosaic and not at all romantic – sense become a community of destiny. The citizens of such a community have particularistic reasons to enhance its social cohesion and strengthen its democratic legitimacy. And these are reasons that can be communicated in public debates.

I need to register here a disagreement with Richard Bellamy whose commitment to democracy as a mechanism for the public realisation of the equal status of citizens I fully share. Bellamy says that “to achieve that result, citizens must be able to air their disagreements and deliberate in ways all can see are fair and addressed to their common concerns, all of which assumes a public sphere and shared interests”. Bellamy thinks these conditions are not sufficiently present in the EU to motivate citizens to support trans- and supranational European citizenship. And he invokes the Catalan secession crisis to illustrate the point. “Where these features are deemed to be lacking, then large numbers of people are likely to be willing to exercise their liberal rights to freedom of speech and association to militate for a political community that can embody them and can only be prevented from doing so through coercion.”

In contrast to this view, I think that the Brexit and Catalan crises serve to demonstrate that there are in fact sufficiently strong public spheres and shared interests at the level of the encompassing EU and Spanish polities and that separatism is the wrong response to the current predicaments. In both Britain and Catalonia, exiteers and unionists represent(ed) about half of the respective populations. Under such conditions, the reasons why one side wins and the other side loses in a referendum have little to do with deeply rooted collective identities or shared interests of all citizens of the polity and a lot to do with the hard-to-predict outcomes of political campaigns. Moreover, the arguments why Britain would be better off outside the EU and Catalonia outside Spain can be demonstrated to be wrong by pretty overwhelming evidence. What drives such separatism is a politics of resentment rather than of the common good. In response to perceived and real grievances the politics of resentment advocates closure or separation at the price of severely damaging the interests of the citizens it claims to represent. 

Bellamy is right that the argument appealing to shared interests must be won in the public sphere, but he is wrong to think that these conditions are absent when it comes to European citizenship. European citizens share interests in reducing external and internal threats to democracy; they have committed through their representatives to create a political and not merely economic union; and they are today exposed to public debates in which European issues are at the centre of controversy and discussed simultaneously across Europe. 


The DNA of EU citizenship

Let me now turn to the second preliminary question that is not addressed in Ferrera’s essay: What is EU citizenship? Art. 20 (1) TFEU says: “Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.” This is the DNA of EU citizenship that determines both its potential evolution and its limits. EU citizenship is derived from member state citizenship rather than the other way round. And since it is additional and not substitutive, it adds another layer to national citizenship. 

The potential of this construction is that it transforms nationals into multiple citizens whose rights, duties and political memberships are determined not only by their state, but also by a political union of which their state is a member. The construction adds even a third level below the state when it gives non-national EU citizens the right to vote in municipal elections in their host member state. As I have argued elsewhere, EU citizenship encompasses thus at least three levels, each of which has a distinct rule for determining membership. At the national level citizens are determined by circumstances of birth (through descent from citizen parents or birth in the territory) or naturalisation procedures; at the Union level, citizenship is derived from national membership; and at the local level, it includes (or ought to include) all residents in the municipality [4].  

The principles for determining local and national citizens are independent from each other and create thus a potential for conflicts over who counts as a citizen. When ‘sanctuary cities’ protect undocumented migrants against deportation, they oppose their own principle of including all residents to the state’s power to exclude non-citizens from admission and residence in its territory. By contrast, the derivative nature of EU citizenship is meant to secure that no such conflict can arise. EU citizens are not those who reside in the EU territory, but all those and only those who are nationals of a member state. Yet a potential for conflict emerges through Art. 20(2) that defines those rights that EU citizenship adds to those of national citizenship. Foremost among these is free movement. When the Court of Justice of the European Union defends immediate access of EU job seekers to employment-related social benefits in other member states, it upholds an expansive interpretation of free movement against the attempts of states to protect their distinct social citizenship regimes through territorial closure. Conflicts of this kind are inevitable in any multilevel democracy. They are pervasive also in consolidated federal states, but there federal courts operate as the ultimate arbiters and interpreters of a constitution that regulates the division of competencies between levels of government. In the EU, the Court interprets instead treaty-based citizenship rights agreed to by states with distinct constitutions and welfare regimes. Such constitutional pluralism [5]  makes a union of states fundamentally different from a federal state. 

Conflict over citizenship is institutionalised and, as Susanne Schmidt and Richard Bellamy point out, it cannot always be authoritatively resolved by the CJEU. The court is thus often seen as acting politically when it moves forward with daring declarations that “EU citizenship is destined to become the fundamental status of nationals of the member state” (Grzelczyk 2001). It followed up when telling member states that they have to take EU law into account when depriving nationals of their citizenship (Rottmann 2010) and have to grant legal residence to EU citizen children of undocumented migrants even if their EU citizenship has not been activated through cross-border movement (Zambrano 2011). Yet precisely because the CJEU is acutely aware of having to fill political lacunas left open by the legislature, its expansionary moves in matters of citizenship have been regularly followed by retractive ‘clarifications’, such as in the McCarthy (2011), Dereci et al. (2011) and Dano (2014) decisions. 

The institutionalisation of conflict over citizenship creates a strong potential for politicising EU membership rights and statuses also in the legislative branch of the EU (i.e. the Council and Parliament) and the public arenas of member states that has so far been kept at bay. Brexit (and potentially also Scottish and Catalan secession attempts) could unlock the cage. When this happens, those who want to promote European integration should not be caught unprepared but lay out and explain their visions to citizens and voters instead of acting merely as advisors to the Commission. 

I tend to think therefore that we need now not merely pragmatic incrementalism but also bold ideas how to develop EU citizenship further in ways that are compatible with its multilevel DNA. This is why I proposed putting on the agenda a direct EU income tax that would create incentives for EU citizens to hold EU legislators politically accountable for their use of tax money and that would introduce a social justice dimension into EU citizenship if such a tax were progressive [6].  In order to become politically feasible, such a tax must not be added to current national contributions to the budget but diminish them, which would also make the conflict between net contributor and net recipient governments less poisonous. I am perfectly aware that such a proposal probably requires Treaty change and is not a vote getter, but if it is integrated into a coherent political platform for strengthening EU citizenship it might stand a chance to find also sufficient electoral support. Which pollster would have predicted before the victories of van der Bellen in Austria and of Emmanuel Macron in France that one could win elections on an unabashedly pro-EU programme in member states whose citizens are among the most Eurosceptic ones? 

Yet the constitutional DNA of EU citizenship also sets limits to what kind of animal it can eventually become. Julia Hermann refers to the idea – without endorsing it explicitly – of “a European Republic, in which there are no nation-states anymore, but only regions, cities, and – most importantly – citizens.” This is the old notion that Europe must eventually become a federal state – a persistent trope among supporters of European integration that shows a lack of imagination with regard to alternative forms of political community that do not imitate the nation-state template. Such a ‘provincialisation’ of member states and their citizenship could not come about gradually by transferring ever more competencies to the Union; it would require at some point a radical break. While there is no hard and fast distinction between pooling and transferring internal sovereignty, creating a European republic or federal state would mean that at a specific date member states lose their external sovereignty as independent members of the U.N. and the international state system. It is not impossible to imagine historical conditions under which some states may be ready to abolish themselves in this way. In the history of the U.S., Switzerland and Germany, i.e. quite some time before the consolidation of the international state system, it took civil and international wars to trigger the move from confederation to federation [7].  If these are the conditions for realising a federal European Republic, then this is hardly a dream worth dreaming.  

Martin Seeleib-Kaiser explicitly refers to the U.S. and German examples when spelling out some of the implications of a federalist project: “For EU citizenship to become truly a fundamental status it is necessary to overcome the differentiation between economically active and non-active EU migrant citizens and finally abolish the residence requirements.” What he fails to mention is that establishing priority for federal citizenship in the post-Civil War 14th amendment to the U.S. Constitution and in unified Germany after 1871 entailed a radical downgrading of the U.S. states and German Länder whose citizenship henceforth was derived from federal citizenship rather than the other way round. If this were really the destiny of EU citizenship, then the member states have every reason to reject it and the power to do so as masters of the Treaties.

In contrast with the other authors in our debate, Bellamy devotes much attention to the nature of EU citizenship. For him, it is inter-national, rather than trans- or supra-national. I find this terminological choice somewhat confusing. It is the citizenship of independent states that is international by nature. Citizenship is not only a domestic legal status that comes with certain rights and duties; it is first of all a mechanism for allocating individuals to states based on reciprocal international recognition of states’ right to determine their own citizens and of their personal jurisdiction over these citizens, including to a certain extent also those residing abroad. In contrast to the citizenship of EU member states, citizenship of the Union is not (yet) international in this sense. It is not a legal status that depends on recognition by third countries. The right of EU citizens to seek diplomatic and consular protection by other EU states in third countries where the state whose nationals they are is not sufficiently represented creates a potential claim for international recognition but it is far from obvious that third countries are bound to accept this claim [8].  

Bellamy interprets also the concept of ‘transnational citizenship’ in a way that hardly matches academic debates. For Bellamy, transnational seems to be synonymous to postnational. However, the ample literature on transnationalism in migration studies has used this concept instead to refer to the increasing salience of links between emigrants and their states of origin, i.e. a phenomenon that expands the reach of national identities and citizenship beyond the states’ territorial borders instead of creating a new type of postnational political community. Again, it is primarily the citizenship of independent states that has become transnational in this sense, for example through toleration of dual citizenship or granting voting rights to expat citizens. Yet EU citizenship too was from the very beginning constructed as a transnational status, since most of its rights are activated through cross-border activities while it is the member state of origin that determines who possesses the status and who can enjoy transnational rights within the Union. 

My disagreement with Bellamy is, however, probably not merely terminological. Transnational citizenship is also transformative for national citizenship. This is true in the international arena where states increasingly claim extraterritorial jurisdiction, promote nation-building projects beyond their borders and mobilise their diasporas as an economic, cultural and political resource. The potential for inter-state conflict has not yet been tamed by a corresponding evolution of international legal norms. Political theory also has not kept up with developments and remains largely stuck in a dichotomy between domestic and global conceptions of justice or democracy that fails to take into account the increasing salience of transnational political spaces and phenomena that straddle this distinction. Nowhere has the transformative potential of transnational citizenship been greater than in the EU, where freedom of movement has triggered not only a need for top-down regulatory coordination, but also bottom-up adaptation of welfare regimes and social citizenship in the member states.

The transnational nature of EU citizenship greatly enhances the potential for conflict over the determination of specification of citizenship rights and duties that is already inherent in a multilevel structure where union citizenship is derived from national citizenship.  


Politicising the struggles over EU citizenship

Thinking about why we ought to strengthen EU citizenship and what the EU citizenship is that should be strengthened pushes me to always the same conclusion. We can no longer rely on European nation-states to provide sufficient protection for democratic citizenship; nor can we rely on a functionalist teleology that pulls European states towards merging into a federal European republic. Both of these perspectives are out of tune with the way the European Union has evolved over time and the way it has constructed its citizenship. 

Finally, we can also not rely on the EU as a guarantor of the rule of law and a correspondingly thin liberal citizenship at European level that secures free movement and non-discrimination and leaves it to the member states to sort out their social citizenship problems. Pace Christian Joppke, the EU is no longer just a regulatory regime. It has become a fiercely contested political arena that is not just located in Brussels, Luxembourg and Strasbourg, but is staged today in every national capital and election campaign.  

Liberals tend to think of democracy as being only instrumentally valuable in order to maintain the rule of law that secures individual freedom. Liberal egalitarians regard it also as the political regime that offers the best chances to implement distributive regimes that promote social justice. Yet most liberals fail to give serious thought to what is necessary in turn to maintain democracy so that it can deliver these goods. 

I have suggested above that the strongest justification for EU integration is that it protects the external and internal conditions for democracy in Europe. Internally, democracy is hard to sustain over time if citizens no longer believe that governments enjoy input legitimacy because they have been authorised by democratic elections and if citizens no longer share a sense of solidarity and special duties among co-citizens. These beliefs are better supported by theories that regard democracy as having not only instrumental but intrinsic value because it realises the ultimate value of popular self-government – albeit in necessarily imperfect ways. 

If liberals abandon this idea it will be picked up by nationalist populists. This may not happen in good times where a permissive consensus allows the liberally minded elites to pacify citizens through what Ernest Gellner called the Danegeld of economic growth. But once output legitimacy becomes weaker in times of economic crises and straightjackets, input legitimacy will be the question around which political forces are mobilised. 

Europe is in this situation right now. The social deficits of European citizenship have contributed to deepening an emerging cleavage between mobile and static populations that is reflected in political attitudes towards openness and closure. Ferrera’s fine-tuned proposals how to combine a robust defence of free movement with European social protection policies show that the dilemma is not necessarily a tragic one. The very complexity of Europe’s constitutional order creates opportunities for experiments and social policy inventions of this kind. Ferrera suggests at the end of his essay that a vision is needed to guide also incremental reforms. I think that maybe even more is needed now. The dilemma is a political one and needs to be addressed in the political arena. By mobilising a politics of resentment among immobile citizens, populists have seized one of its horns and use it as a weapon against the EU. Those who want to strengthen the European Union and its citizenship should not commit the error to seize the other horn and appeal only to the minority of mobile Europeans. The answer to the EU citizenship dilemma must be to grab both of its horns and to risk a rough ride on the back of the bull. This is what a woman in ancient Greek mythology did. Her name was Europa.



[1] Weiler, J.H.H., 1996. European Citizenship and Human Rights in Winter J. A., Curtin, D. M., Kellerman, A, E., De Witte, B. (eds) Reforming the Treaty on European Union: The Legal Debate. The Hague/Boston: Kluwer International.

[2] Jessurun D’Oliveira, H. U. 1995. Union Citizenship: Pie in the Sky? In E. Rosas (ed.) A Citizens' Europe: In Search of a New Order, Sage.

[3] See Bauböck, R. (2014). Migration and the Porous Boundaries of Democratic States. The Oxford Handbook of Transformations of the State. Oxford, Oxford University Press: 516-531.

[4] Bauböck, R. (2014). "The Three Levels of Citizenship Within the European Union." German Law Journal 15(5): 751-764.

[5] See Weiler, J. H. H. (1999). The Constitution of Europe. Cambridge: Cambridge University Press

[6] See R. Bauböck. Still United in Diversity? The State of the Union Address, Florence, 5 May 2017

[7] See Schönberger, C. (2005). Unionsbürger: Europas föderales Bürgerrrecht in vergleichender Sicht. Tübingen, Mohr Siebeck

[8] See Moraru, M. B. (2015) Protecting (unrepresented) EU citizens in third countries – The intertwining roles of the EU and its Member States. PhD thesis, European University Institute, Florence.


Why Adding Duties to European Citizenship is Likely to Increase the Gap between Europhiles and Eurosceptics

By Theresa Kuhn (University of Amsterdam) 


Citizenship is not only a legal device to determine who is member of a political community and hence has both civic rights and duties. It has also always been a tool to integrate its members and strengthen a sense of collective identity and political legitimacy. With this integrative power in mind, Maurizio Ferrera proposes to add both a social dimension  and some duties to European citizenship that should strengthen the social bonds across the EU. His proposals are innovative and intriguing, and have triggered a wide array of very insightful reactions in this forum debate. Rather than reacting to each of these policy proposals, I will focus on the proposed duties as they most closely relate to my research interests. I will then make two alternative proposals that target the stayers and try to mitigate the gap between winners and losers of European integration [1].

In short, Ferrera suggests to add both civic and financial duties to European citizenship. This makes a lot of sense as people often fail to appreciate the goods and services they get for free and start caring for a common good once they have to contribute to it. Let me explain why I nonetheless doubt that these duties will have the effect that Ferrera is hoping for. Rather than strengthening a sense of European identity across the board, these duties risk widening the gulf between pro-European citizens and those opposing European integration. We are currently witnessing the emergence of an increasingly important fault line in European politics between highly educated, mobile Europhiles, and lower skilled, immobile Eurosceptics who see themselves as (and sometimes are) the losers of European integration.  Let me discuss how the duties proposed by Ferrera have different implications for Europhiles and Eurosceptics and hence have unintended consequences for European collective identity.

Ferrera proposes to introduce the possibility of paying a voluntary, earmarked contribution to “Social Europe” on national tax forms. The rationale behind this proposal is that such a contribution could make the EU more salient and visible, and by paying into such a fund, citizens could be “nudged” into caring and feeling responsible for the European Union. Similar mechanisms have been thought to contribute to nation building, and experiments in behavioural economics indeed support the expectation that individuals become more caring once they contribute to a common good. One has to ask, however, who will be the European citizens that are ready to pay a voluntary contribution to “social Europe”. Very likely, this is the group of Europeans that is already convinced of the benefits of European integration. Recent studies on redistribution across the European Union show that citizens with cosmopolitan values are most willing to share resources with other Europeans, and they are most likely to support international redistribution in the EU [2]. Eurosceptics, however, most probably refrain from paying such a contribution, and will therefore also fail to develop the sense of responsibility and ownership through their contribution that Ferrera is hoping for.

Ferrera further suggests introducing an EU civilian defense and civic community service, again with the hope that taking part in such a service will instill some sense of community. In fact, such initiatives exist already. Over the past 20 years, 100.000 young people aged 17-30 have participated in the European Voluntary Service [3].  Moreover, the newly created European Solidarity Corps provides a unique platform for young Europeans and organisations that wish to get involved in projects related to European solidarity. These are great initiatives, but will Eurosceptic youth be willing to participate? While I am not aware of any studies on the European Voluntary Studies, research on Erasmus exchange programmes is informative. While an Erasmus experience has the potential to foster European identity [4], students who take part in such an exchange are already more pro-European than their peers before going abroad [5]. Moreover they primarily interact with other Erasmus students rather than the (immobile) local students. Such a self-selection might contribute to the widening gulf between Eurosceptics and Europhiles: People open to European integration self-select into participating in European voluntary services and into paying voluntary contributions. By doing so, they strengthen and reaffirm their pre-existing support for European integration, and are increasingly surrounded by like-minded, equally mobile individuals, while Eurosceptics remain in their own country and in their own Eurosceptic circles.

To sum up the argument so far, all these proposals primarily address those Europeans who are already European-minded and self-select into transnational interactions and European engagement. I suggest addressing the Eurosceptics, but in a somewhat different way than Ferrera. He proposes to compensate the stayers by means of an EU fund to ease the impact of mobility. Joppke has already pointed out that by doing so, European policy makers might reify and legitimise populist resentments by portraying movers as perpetrators and stayers as victims. One way to deal with this concern could be to frame these transfers differently. For example, rather than speaking of a “compensation for losers”, one could offer a “mobility bonus” to those regions (and their residents) that are able to attract large shares of EU migrant workers. These bonuses could be earmarked for investments into activating unemployed residents. Consequently, those Europeans who usually tend to see themselves as losers of European integration might feel that they benefit from being part of a winning region. My other concern about such a “compensation” policy is that it might “nudge” stayers into the wrong direction. If intra-European mobility indeed fosters European identity, and pro-European citizens self-select into mobility, then we should provide incentives for stayers to overcome their reservations and move around rather than giving them a premium for staying at home. This is a very difficult endeavor, and the Erasmus Plus Programme already tries to reach out to a broader cross section of society beyond university students.  

Finally, given the widening gap between mobile and immobile Europeans, the answer to Euroscepticism might not lie in promoting more mobility across European member states but in addressing the increasing socio-economic divides and opening up the resulting “echo chambers” within countries. By trying to engage in a dialogue with Eurosceptic co-nationals, Europhiles might be able find to better answers than by repeating the Europhile mantra. 



[1] Hooghe, L. and Marks, G. (2017), ‘Cleavage theory meets Europe’s crises: Lipset, Rokkan, and the transnational cleavage’, Journal of European Public Policy, online first, http://dx.doi.org/10.1080/13501763.2017.1310279 . Kuhn, T. (2015), Experiencing European integration. Transnational lives and European identity. Oxford: Oxford University Press.

[2] Kuhn, T., Solaz, H. and Van Elsas, E. (2017), ‘Practising what you preach: How cosmopolitanism promotes willingness to redistribute across the European Union”, Journal of European Public Policy, online first http://dx.doi.org/10.1080/13501763.2017.1370005. Bechtel, M., Hainmueller, J. and Margalit, Y. (2014), ‘Preferences for International Redistribution. The Divide over the Eurozone Bailouts’, American Journal of Political Science, 58 (4):835-856.

[3] http://europa.eu/youth/sites/default/files/evs_factsheet_and_impacts_apr_2016.pdf

[4] Mitchell, K. (2015), ‘Rethinking the ‘Erasmus effect’ on European identity”. JCMS: Journal of Common Market Studies, 53(2): 330-348.

[5] Wilson, I. (2011), ‘What Should We Expect of 'Erasmus Generations'?’, Journal of Common Market Studies, 49 (5): 1113-1140.


Enhancing the Visibility of Social Europe: a Practical Agenda for ‘the last mile’

By Ilaria Madama (Università degli Studi di Milano)[1]  


This Forum has, so far, addressed many ‘big issues’ about EU citizenship , but has paid much less attention to the ‘catalogue’ of suggestions Ferrera has made in order to “add stuff” to EU citizenship and to make it more visible and salient. I would like to focus on these proposals, all going in the direction of strengthening the social dimension of integration. As widely acknowledged in the literature, social policy institutions have historically served key political functions for state and nation building purposes in Western countries [2],  including in federal systems, where social citizenship – as noted also by Seeleib-Kaiser – has been used as an element to foster unity [3].  Within the EU’s multi-level framework, the possibility to exploit the legitimating and credit claiming potential of supranational social programmes for polity-building and maintenance is being undermined by two elements: on the one hand, the small size of the EU social budget and, on the other hand, the indirect way of functioning of supranational programmes that makes EU measures and funds scarcely visible to citizens. 

According to the 2017 Flash Eurobarometer on Citizens’ awareness and perceptions of EU regional policy [4],  EU actions to promote social and economic development are largely unknown to respondents, with more than 63% never having heard of any EU co-financed project to improve the area they live in [5].  The average value however conceals significant variation across countries: if 80% of respondents have heard about EU’s regional support in Poland, the share drops to 40% in Italy, 27% in France and 25% in Germany, sinking to a modest 16% in Austria and 14% in Denmark [6]. 

These figures somehow confirm that little credit goes to the EU directly for her own efforts and spending in the social sphere. This does not come as a surprise. A broad strand of implementation studies has documented how the translation of higher level policies and goals into street-level actions is subject to a “variety of disjunctive influences” [7].  This issue becomes even more relevant in federal and multi-level polities, in which higher-level policies are more at risk of getting unraveled at the frontlines [8],  as street-level providers are not direct arms of the supranational level. The so-called last mile problem (the final link of the implementation chain) has a political dimension as well. The level of government/political authority that controls the last mile has an incentive to “capture” as much political credit as possible, even if resources (legal and/or financial) come from higher levels.

Some of the proposals suggested by Ferrera would work as antidotes against this syndrome, enhancing the EU’s visibility for end-recipients at the terminal phase of the implementation chain. The current situation is more advanced on this front than Ferrera acknowledges. EU institutions (especially the European Commission) are aware of the last mile problem and have in fact already made several attempts to foster the visibility of EU’s action at the points of actual delivery. I will illustrate this with the example of the Fund for European Aid to the Most Deprived (FEAD), a new EU social program that was launched in March 2014 with the aim of confronting the most severe forms of material deprivation by providing non-financial assistance to the most needy.


The FEAD, in brief

The assistance provided by the FEAD takes primarily the form of food, clothing and other essential stuff, accompanied by advice and counselling to help beneficiaries to re-integrate into society. The FEAD may also finance stand-alone social inclusion activities, which are designed to strengthen most deprived people’s skills and capacities to help them overcome the situation of difficulty they face [9]. 

Participation in the programme on the side of member states is mandatory and its governance model rests on a multi-level approach. Member states are required to prepare national Operation Programmes (OP), illustrating the domestic strategy for implementing the Fund during the 2014-2020 period. They can opt for two different OP types: OP I - covering primarily food aid and basic material assistance, complemented by social inclusion measures; and OP II - dedicated to stand-alone social inclusion measures. 

Overall, the programme was endowed with 3.8 billion euros from the EU budget. In addition, member states have to top up the allocation through national co-financing [10].  

Despite the steering role played by European and national managing authorities in the management of the programme, the actual implementation of the measures at the street level primarily relies on partner organisations, i.e. civil society organisations such as food-banks and charities, that are in charge of the actual distribution of assistance and the provision of social inclusion measures.


In the context of this Forum’s discussion, the FEAD experience is interesting in two main respects. First, the FEAD Regulation [11]  details a number of requirements that, at the very end of the implementation chain, street-level providers have to comply with. These include the requests that “during the implementation of an operation, the beneficiaries of funding and partner organisations shall inform the public about the support obtained from the Fund by placing either at least one poster with information about the operation (minimum size A3), including about the financial support from the Union or a Union emblem of reasonable size, at a location readily visible to the public. This requirement shall be fulfilled, without stigmatising end-recipients, at each place of delivery”; and “any document, including any attendance or other certificate, concerning an operation shall include a statement to the effect that the operational programme was supported by the Fund” [12].  This is a relatively new explicit strategy precisely aimed at claiming some symbolic and thus political credit at the end of the last mile.

Second, the European Commission has made special efforts to strengthen awareness, as well as its reach over front-line partners, by financing the creation of a community of stakeholders, grouping together EU-level NGOs and EU institutions, partner organisations – in addition to national managing authorities. Within the activities of the FEAD Network, the European Commission organises face-to-face meetings and has created a social media platform to boost virtual interactions. In this case, the political goal is not only credit claiming, but more ambitiously that of establishing direct links between the supranational level and the social and ‘civic’ grass roots. 

How compliant are local authorities and delivering agencies with these new regulatory provisions? How effective are they in raising awareness, enhancing visibility, generating symbolic credit? We do not have any empirical answer yet, these are, however, very relevant and intriguing questions for future research. 


An EU Social Card? 

Introducing an ‘EU Social Card’ aimed at easing citizen access to services, as envisaged by Ferrera, could be another promising strategy. It would be a small riforma col cacciavite (to use an Italian metaphor: a simple fix made with a screwdriver, with limited cost and high effectiveness) to make the social dimension of EU citizenship more visible and tangible. The EU has already introduced a European Health Insurance Card (EHIC), which entitles to medical treatment – on a par with nationals - in health emergencies as well as for pre-existing conditions while travelling through Europe. In February 2016, a pilot project for an EU Disability Card has been launched and it is meant to enable mutual recognition of disability status between EU Member States, making it easier for persons with disabilities to travel to other EU countries. There is also a European Professional Card, aimed at simplifying professional qualification recognition procedures for workers moving to other EU countries [13].  

These three initiatives provide tangible benefits only if there is a cross-border element – in Ferrera’s terminology they are isopolitical instrumental facilitators. Ferrera rightly highlights, however, the need to empower and make more visible the stakes of European citizenship also for the stayers. Many contributions to this Forum have addressed Ferrera’s proposals from a normative perspective. Some have raised doubts about the very fact that stayers may bear material burdens in the wake of mobility. The essential point, however, is that stayers – especially if low-educated and low-skilled – do think/feel (it is both a belief and an emotional reaction) that they indeed suffer some penalty. These beliefs/feelings may be normatively or factually unwarranted. But they exist, as profusely documented by empirical research. And they are politically relevant facts, closely linked with the rise of euro-skepticism. I agree with Ferrera that it would be politically sensible to de-activate the disruptive potential of these orientations through some EU programme dedicated to (or including) those citizens who, for any reason, do not exercise free movement and risk to find themselves in a situation of economic difficulty. Again, the EU is already moving in this direction, with a novel initiative aimed at addressing the up-skilling of low-qualified people [14].  The programme targets adults with weaknesses in basic skills, knowledge and competences, who therefore are more likely to face a higher risk of unemployment, a higher incidence of poverty and social exclusion. In 2016 there were 63 million people – almost a quarter of the Union population aged 25-64 – with at most lower secondary education. A Skills Guarantee, the official name of the Commission’s proposal [15],  could really kill three birds with one stone: providing a concrete support to the most vulnerable (normative rationale), making the EU economy more competitive via an enhanced human capital (functional rationale), and bringing the stayers closer to (i.e. more loyal and supportive of) the European Union as such: a political rationale well worth pursuing. 



[1] This text has been written in the context of the RESCEU Project (Reconciling economic and social Europe), www.resceu.eu), funded by the European Research Council (Advanced Grant no. 340534).

[2] Cf. P. Flora, Introduction and Interpretation, in P. Flora, S. Kuhnle, and D. Urwin (eds), State Formation, Nation-Building and Mass Politics in Europe: The Theory of Stein Rokkan, 1999, Oxford, U.K.: Clarendon Press, pp. 1–91. 

[3] H. Obinger, S. Leibfried, and F. G. Castles (eds), Federalism and the Welfare State: New World and European Experiences. Cambridge, U.K.: Cambridge University Press, 2005.

[4] Flash Eurobarometer 2017 Available at: http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/ResultDoc/download/DocumentKy/79239

[5] Regional policy is endowed with 351.8 billion euros and accounts for approximately a third of the EU budget for the current 2014-2020 budget cycle. It co-finances (primarily through the ESF, the ERDF and the Cohesion fund) projects to promote job creation, competitiveness, economic growth and citizens’ quality of life. 

[6] These findings partly reflect the diverse relevance and size of EU financing across countries, but still there is no strong correlation between level of awareness and per-capita EU funding. 

[7] Cf. P. J. May and S. C. Winter, Politicians, Managers, and Street-Level Bureaucrats: Influences on Policy Implementation, in JPART, vol. 19, 2007, pp. 453–476 (p. 454).

[8] Cf. L. R. Keiser, Street-Level Bureaucrats, Administrative Power and the Manipulation of Federal Social Security Disability Programs, in State Politics & Policy Quarterly, Vol. 1, No. 2, 2001, pp. 144-164.

[9] See European Commission, The Fund for European Aid to the Most Deprived (FEAD), Breaking the vicious circle of poverty and deprivation, Brussels, European Commission, 2015.

[10] The minimum co-financing rate is set at 15% of eligible public expenditures, but it can be reduced up to 0% for member states with temporary budgetary difficulties.

[11] Regulation of the European Parliament and of the Council no. 223 /2014.

[12] Art. 19 of the Regulation of the European Parliament and of the Council no. 223 /2014.

[13] See European Commission, EU Citizenship Report, 2017. Available at: http://ec.europa.eu/newsroom/document.cfm?doc_id=40723

[14] Cf. Council Recommendation of 19 December 2016 on Upskilling Pathways: New Opportunities for Adults. Available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:JOC_2016_484_R_0001 

[15] European Commission, A New Skills Agenda For Europe, 2016, COM(2016) 381 final. Available at: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52016DC0381&from=EN


Towards a ‘Holding Environment’ for Europe’s (Diverse) Social Citizenship Regimes 

By Anton Hemerijck (European University Institute)


Maurizio Ferrera has written an important and timely response paper to Rainer Bauböck’s call to “add stuff” to EU citizenship. Standing on the shoulders of the equally perceptive and nuanced ideas on citizenship rights by T.H. Marshall, Ferrera ventures to explore the political space for raising, in an incremental fashion, elements of ‘social’ citizenship to the level of the EU, in full recognition of the overriding significance of the member states as the principal providers and guardians of highly diverse welfare benefits and services. Ferrera, like Marshall before him, believes that social citizenship does not only provide individuals with an elementary right to economic opportunity and security, through poverty relief, universal access to health care and education, labour market services, unemployment, sickness and old age insurance, but that social citizenship also encourages a sense of community membership and belonging, referred to by Marshall as sharing “to the full in the social heritage and to live the life of a civilised being according to the standard prevailing in society” (Marshall, 1963 [1950]: 74). It is this sense of moral integrity and community loyalty, historically an important (by-)product of national welfare state building, that the EU sorely lacks. More perversely, it has been argued, among others by Fritz Scharpf (2002) and Wolfgang Streeck (2014), that the intricate connection of EU citizenship to free movement in the internal market and, for the Eurozone, budgetary rules setting limits to discretionary fiscal reflation in times of demand-deficient unemployment, in effect undermines national welfare state capacities to maintain social citizenship achievements, won over decades of national political struggle for the improvement of people’s life chances and the protection of vulnerable citizens – the aged, the sick, the unemployed – from economic, social and political marginalisation.

Bauböck’s rejoinder to Ferrera’s essay opens by explicitly acknowledging that EU citizenship was conceived ‘by stealth’ by the Court of Justice of the European Union (CJEU) in the slipstream of the Maastricht Treaty. The political objective at the time was to seal the internal market with the single currency. As these institutional breakthroughs were negotiated at a time when the ’supply side’ revolution in economic theory was riding high, their architects generally believed that the Single European Act (SEA) and the Economic and Monetary Union (EMU), and associated budgetary rules, would force member states to keep their ‘wasteful’ welfare states in check. Indeed, the primacy of internal market, together with the prohibition to revert to currency devaluation in times of mass unemployment for the Eurozone, constrained national social citizenship regimes, ‘by stealth’.  

Frank Vandenbroucke’s post-hoc legitimation, with reference to John Rawls, prioritising ‘fair equality of opportunity’ over the ‘difference principle’ of distributive justice, implicitly assumes a well-delineated European polity that is able to work out an explicit compromise between these two principles. The EU is not really a political union in terms of democratic self-determination, although it is currently experiencing growing pains to that effect. Its borders change with each wave of enlargement and now it is confronted with a first case of withdrawal. It is tragically ironic that the United Kingdom, whose governments in the past have been the strongest force behind the internal market and enlargement and very vocal in scorning Europe’s social dimension, has decided to leave the EU on the sentiment that open markets have gone too far. More to the point, the deepening of European economic integration of the 1990s was never presented as an explicit citizenship regime change to national electorates. Market integration and the liberalisation of public services was the EU’s primary raison d’être – think of the Bolkestein directive. Leaders at the time of the Maastricht Treaty sold the internal market and the currency union as a way to enlarge the economic pie for domestic welfare redistribution. Writing in the late 1990s, Fritz Scharpf already conjectured for the then 16 EU member states that regulatory competition, especially in the area of corporate taxation, was impairing the economic viability of national welfare states, while (welfare) migration, under the EU’s freedom-of-mobility rules, would damage their political viability (Scharpf, 1999). We know that Scharpf’s dystopia of ruinous competitive social dumping has not come true for two important reasons. The first is that most of the successful European economies, according to the Global Competitiveness Index of the World Economic Forum (2014), are high-spending welfare states, including, Finland, Germany, the Netherlands, and Sweden, with levels of social spending hovering between 25% and 30% of GDP. At a minimum, the evidence that high social spending does not per se hurt competitiveness, presses us to consider the quality rather than the quantity of social spending in trying to better understand the relation between welfare provision and economic prosperity in rich democracies. 

The second reason is that the deepening of the internal market has been accompanied by a considerable expansion of EU cohesion policy, breakthroughs in social security coordination and important secondary legislation and CJEU jurisprudence, referred to by Suzanne Schmidt, on health and safety, anti-discrimination, equal pay and equal treatment, part-time and temporary work, and parental leave, modelled generally after the better performing countries rather than the lowest common denominator. But with the latest 2004 and 2007 waves of enlargement, in conjunction with the Eurozone fallout of the global financial crisis, magnifying asymmetric shocks without any measure of burden sharing or collective re-insurance, trapping Eurozone debtor countries in ‘bad’ economic and socially imbalanced equilibria (De Grauwe, 2011), we have to sadly acknowledge that Scharpf was pretty much on the mark. 

In the current predicament, electorates continue to hold national politicians accountable for socio-economic (mis-)fortune, not EU institutions. With political accountability bound up with popular welfare states, it is particularly difficult to renege on established social contracts in hard economic times. In addition, the failure to resolve the euro crisis at the supranational level has increasingly been met by rising eurosceptic domestic pressures to water down ruling governments’ commitments to European solutions, especially in the politically sensitive policy areas of welfare provision. It therefore comes as no surprise that today anti-EU right-populist parties are the most ardent defenders of the post-1945 social contract for ‘natives’ only, proclaiming that retirement at 65 can be sustained through protectionism, a ban on migration and by bidding farewell to the internal market and the single currency. On the other hand, eurozone crisis management hardly departed from the deeply entrenched worldview, anchored in the Maastricht Treaty, that generous welfare provision harms competitiveness. Fiscal conservatives, including Northern social democrats, have championed intrusive cost-containment in exchange for fiscal bailouts, in the Eurozone periphery, to make up for a lost decade in ‘structural reform’. Mario Draghi, being interviewed by the Wall Street Journal at the height of the Eurocrisis in early 2012, similarly declared the ‘European social model’ as ‘long gone’. Between right-populist welfare chauvinism and ongoing calls for overnight fiscal consolidation, a “political-institutional vacuum” has emerged at the heart of the European project. Even if populist parties do not enter office, to the extent that they successfully portray a nostalgic image of a national welfare paradise lost as a result of globalisation and mass migration promoted by the EU, mainstream parties, in- and outside of government, face severe difficulties in claiming credit for making national welfare states more future proof through improvements in family welfare in return for a higher pension age.

The Juncker Commission has taken on an ambitious number of social policy initiatives, including the Youth guarantee, the ErasmusPro initiative for cross-border initiatives, the New Skills Agenda for Europe, the European Pillar of Social Rights, the Social Scoreboard for assessing progress towards a social ‘triple A’ for the EU. Most of these initiatives are being pursued in a seemingly uncoordinated manner, without an overall ideational framework or policy paradigm. What’s more, time and again, concerns about inequality, poverty and mass (youth-)unemployment are relegated to ‘auxiliary’ status and remain subordinated to the Six-Pack (2011), the Fiscal Compact (2012) and the Two-Pack (2013), prescribing balanced budgets irrespective of urgent needs. As a consequence, and in spite of the post-crisis lip service paid to social investment by the European Commission, the ‘default’ policy theory of market liberalisation, balanced budgets, hard currency, and welfare retrenchment has not been questioned. 

With high (youth) unemployment, rising poverty and inequality as the breeding grounds for xenophobic populism and Brexit-type political contingencies, the EU and its member governments have to break with the ‘permissive consensus’ of relegating social policy to the jurisdiction of the nation state, under the proviso of ‘subsidiarity’,  and market and currency regulation to the EU, as if this conjured up a ‘happy’ equilibrium. It does not. And here lies, as Maurizio Ferrera makes crystal-clear in his essay, the fundamental political reason why adding ‘social’ stuff to EU citizenship can no longer be dismissed as wishful dreaming. Indeed, a transformative turn, in the conceptualisation of Paul Magnette,  from the ‘isopolitical’ citizenship right of free movement and the destabilising externalities of the Treaty to the ‘sympolitical’ re-confirmation and enlargement of EU social citizenship, is imperative. The isopolitical limitations of EU action in the social domain have to be confronted on two fronts: 1) in terms of political priorities threatening the very legitimacy of the European project, and 2) in terms of sound comparative evidence of how dynamic social policies can help achieve prime EU political objectives of growth, jobs, competitiveness and social inclusion.    

Before we move forward, there is an important caveat to be discussed. The effective delivery of social citizenship rights implicates state steering capacity, not merely regulation. Civil rights, rights to property and respect for the rule of law are operationally precise and can, as such, more easily be enforced. However, today the European Commission is unable to retroactively uphold the Copenhagen accession criteria, which Hungary and Poland accepted when joining the EU, for the likes of Viktor Orban and Jaroslaw Kaczynski, further weakening thereby the legitimacy of the EU in many member states with strong commitment to the rule of law.  Social rights, defined in terms of substantive need, are of a different breed altogether. The right to a minimum income, which is in the words of Marshall ‘not proportionate to the market value of the claimant’, obliges the political community to interfere with and modify the distributive consequences of cyclical and volatile market processes. This requires ‘positive state capacities’ (Genschel and Jachtenfuchs, 2017), both in terms of ‘bending’ market processes through taxation and compulsory social insurance contributions and also through provision of benefits and service delivery, which the EU, as a mere regulatory regime, in the words of Christian Joppke, lacks by deliberate intention. Consequently, the question of ‘how much’ is good enough, and ‘what kind of benefits and services’ are required, on behalf of ‘what categories of (deserving) citizens’, and ‘at whose expense’ are fundamental political questions, which, for the time being, cannot be settled at the level of the EU.  

I am in full agreement with Maurizio Ferrera’s diagnosis of the post-crisis EU social malaise, imbalance and contradictions and the need for the ‘sympolitical’ change of heart that he suggest. When it come to policy proposals, Ferrera opts essentially for a ‘compensatory approach’ that aims at de-activating the (perceived) disintegrative dynamic of EU civil citizenship undermining domestic social citizenship regimes, by focusing on policy support for the so-called ‘stayers’, those who do not exercise free movement rights. Ferrera wants to empower them through services and benefits that help to mitigate the disruptive effect of EU economic integration on national labour markets and welfare regimes. 

Ferrera’s proposals immediately beg the questions of ‘who to compensate?’; ‘for what exactly?’, ‘how much?’, ‘through which kind of benefit or service?’, and ‘who is to pay?’ for the new policy provisions. And ‘what about other losers?’, such as countries suffering a brain-drain of their college graduates under conditions of high youth unemployment, reinforced by the Eurozone austerity reflex? I am also doubtful, at this current juncture, that we will really be able to identify and measure the bewildering complexity of the negative externalities at play through improved policy-evaluation, as suggested by Julia Hermann. And whether ‘adding stuff’ through a compensatory enrichment of EU social citizenship would strengthen a European sense of community is another open question. Although I concur with the general sympolitical re-direction of the substantive initiatives Ferrera puts on the table, I would rather pursue a more roundabout gradualist route to EU social citizenship progress, whereby the EU would assertively back and bolster the problem-solving capabilities of semi-sovereign national welfare states, rather than compensate perceived losers from economic integration. Rather than moving towards a broader Social Union, as suggested by Andrea Sangiovanni, I plead for an EU support for national solution that allows the nation states to better perform their welfare functions of social protection and social promotion in their highly diverse domestic jurisdictions. If successful, EU support for national welfare provision could very likely reinforce popular loyalty to the EU as a common possession of a union of welfare states. But I am not sure whether it is essential for the EU to claim political credit, as Maurizio Ferrera intimates. In this respect, I guess, I am in-between Ferrera’s supranational stance of and Richard Bellamy’s inter-national position.

In my monograph Changing Welfare States (Hemerijck 2013), I coined the notion of an assertive ‘holding environment’ as a quintessential EU support structure for (active) welfare states to prosper in the single market and the currency union. The notion of a ‘holding environment’ refers to a zone of resilience based on shared values and a common purpose, matched by competent institutions, in times of painful adaptation. The function of a ‘holding environment’ is to mitigate stress and thereby uphold the integrity of national welfare states, but also to maintain pressure to mobilise rather than overwhelm domestic reforms with only disciplinary intrusion, and to back up progress on tough problems with light at the end of the tunnel. The ‘holding environment’ for sustainable welfare provision, contrasts sharply with the notion of the single market and the single currency as intrusive welfare state ‘disciplining devices’. There is important progress underway. In terms of shared values, the presentation of a European Pillar of Social Rights by the European Commission is an important step forward in comparison to the more ambivalent ‘social market economy’ ambition laid down in Articles 2 and 3 of the Lisbon Treaty. The Social Pillar recommendation of the Commission sets out 20 key principles, defined in terms of rights in support of fair and well-functioning labour markets and welfare systems. The Social Pillar, likely to be endorsed by the European Council at the Social Summit for Fair Jobs and Growth in Gothenborg on 17 November 2017, is a good example of the articulate translation of the latent commitment to social solidarity that the EU member welfare states, in spite of their many differences, share in terms of key principles without interfering deeply with the division of labour between member states, social partners and the EU. All in all, the 20 principles cover a well-balanced portfolio of ‘fair-playing-field’ social and employment regulatory provisos, including equal treatment, gender equality, work-life balance, health and safety, minimum wages and social security rights. The latter comprise unemployment benefits, old age pensions, social protection and health care. Significant attention, moreover, is devoted to ‘capacitating’ social rights, such as the right to essential service, inclusive education and training over the life course, active labour market policy support, childcare and family benefits, the inclusion of people with disabilities, long-term care, and housing assistance. These echo the 2013 Social Investment Package for Growth and Social Cohesion of the Barroso Commission, urging EU Member States to advance post-crisis welfare reform strategies that help ‘prepare’ individuals, families and societies to respond to the changing nature of social risks in advanced economies by investing in human capabilities from early childhood through old age, rather than pursuing policies that merely ‘repair’ social misfortune after moments of economic or personal crisis. The Pillar principles, articulated as rights, can come to serve as a reference framework to fundamental values that the EU and the member states share. As such, the Pillar may well enhance a sense of community membership. However, for an effective sympolitical ‘holding environment’, European initiatives that make a contribution to strengthening the problem-solving capabilities of national welfare states, it is quintessential to ensure that the Pillar is not an empty shell. More tangible EU institutional support is called for to uphold and back up the integrity of national welfare states.

Back in 1999, Fritz Scharpf had the ingenious idea of introducing an EU agreement on not reducing overall social spending relative to GDP, so as to pre-empt ruinous competition among European welfare states, leaving the member states at liberty to decide on levels of benefits and services, modes of delivery and financing techniques through national democratic processes, but not for the purpose of economic competition. If such a rule had been adopted at the time, to be sure, the social and political consequences of some bailout programs administered by the Troika of the EU, the ECB and the IMF would have been less socially disruptive, especially in the case of Greece. A more recent proposal for the Eurozone is to introduce a ‘re-insurance scheme’ for national unemployment insurance systems. The idea is that unemployment insurance is a core feature of national welfare states with a highly effective macroeconomic stabilisation component and with uptakes increasing during downturns when resources are constrained by the need of fiscal consolidation. A pan-Eurozone unemployment re-insurance scheme would provide more fiscal breathing space for countries asymmetrically affected by the downturn, which in turn could trigger faster and stronger recovery (see also Vandenbroucke’s contribution).

My own proposal is to discount social investment policies from the fiscal criteria of the Stability and Growth Pact (SGP) and the Fiscal Compact in order to create the necessary fiscal space within a bound of 1 to 2 percent of GDP for the coming decade. Inspired by the 2013 Social Investment Package, I have come to develop an operational taxonomy of three interdependent and complementary social policy functions for further empirical analysis and assessment: (1) easing the  flow of contemporary labor-market and life-course transitions; (2) raising and upkeeping the quality of the stock of human capital and capabilities; and (3) maintaining strong minimum-income universal safety net buffers for micro-level income protection and macro-economic stabilisation in support of high employment levels in aging societies. In this taxonomy, the buffer function is primarily about securing adequate and universal minimum income safety nets but is also able to stabilise the business cycle against economic shocks. Next, the stock function concerns the development, upgrading and upkeeping of human capital and capabilities over the life course with wider bearings, relating to the provision of ‘capacitating social services’, bringing under one roof adjustable bundles of professional assistance in parental counselling, pre-school, care for the elderly, including skill enhancement and training services in case of unemployment, family-care and housing support. The flow function, finally, is about improving and easing gender-equal access to employment over the lifespan, making sure that unemployed workers can return to work as fast as possible through active labour market policies and job matching so as to ‘make labour market transitions pay’ and equalize work-life balance for men and women. The available evidence suggests that integrated stock, flow and buffer policy mixes increase the returns on human capital in terms of employment, growth, generate higher tax bases and more inclusive economic security, and mitigate inequality, (child-)poverty, welfare dependency, and even crime (Hemerijck, 2017). 

If we consider the three policy functions in terms of a viable division of responsibilities between the EU and the member states, then clearly the function of social security buffers, as the core function of the modern welfare state, jealously defended by domestic political actors, should remain in the remit of the national welfare state. If France and Italy, through democratic processes, agree to spend most fiscal resources on pensions, this may not be wise in the light of adverse demography, but there is very little that a supranational organisation can do, except to advocate that sustainable buffers are in the long run best served by investing in future productivity. The flow function, concerning labour market regulation, collective bargaining, work-life balance and gender equality with a aim of fostering adaptable family-friendly employment relations and careers in the knowledge economy, can be well served by mutual learning and monitoring processes of open coordination, engaging national administrations and relevant EU expert committees and the social partners (Zeitlin, 2011). The experience of the crisis, especially the Eurozone austerity reflex, has resulted in a public investment strike, most unfortunately in the area of human capital stock capabilities, lifelong education and training, with significant negative consequences for future growth, employment and productivity in knowledge economies facing adverse demography. 

If the European Union is considered the trade union of the next generation, as Mario Monti allegedly intimated, then surely the EU, with a youth unemployment rate close to 50% in Spain and Greece, is not doing a good job in terms of interest representation and collective action. Granting more fiscal room for manoeuvre (within bounds) to countries that experience excessive social and macroeconomic imbalances would enable them to secure sustainable financing of education and skills upgrading before the ageing predicament becomes truly overwhelming. Exempting such investments from SGP deficit requirements would render greater fiscal space to member states that opt for social investment reform, without trampling on eurozone fiscal rules. For countries struggling to commit to a balanced budget without abandoning their domestic social commitments such exemptions could foster immediate gains in early childhood, female employment, improved work-life balance and reduced levels of early school leaving with positive medium-term outcomes in employment, educational attainment and ultimately pension cost-containment resulting from higher levels of employment. 

Domestic reform ownership is crucial. That’s why the initiative for proposals lies with national actors. Italy and Spain could opt for the creation of immediate (and primarily female) jobs by making huge investments in high quality childcare centres. France could pursue a radical improvement of its system of vocational education and training based on the Finnish and German examples, while Belgium, the Netherlands and Slovenia could ramp up their rather regressive lifelong learning arrangements. At the same time, discounting human capital stock investments should be closely monitored through the European Semester in terms of effective alignments with labour market regulation and employment relations that help to ease labour market and life course transitions for individuals and families and facilitate strong (universal) social security reform across Euro-member states. 

Beyond incentivising domestic social investment reform ownership through positive – carrot rather than stick – conditionality, there is a real need to streamline the EU budget to further leverage social investment returns in the European Social Fund (ESF), the Youth Employment Initiative (YEI), the Youth Guarantee, the European Globalisation Fund (EGF), and the European Fund for Strategic Investments (EFSI), known as the Juncker Plan, by giving priority to mitigate cross-border externalities and to positively foster resilient European welfare states.   

Looking ahead, Europe is in dire need of a growth strategy that is economically viable, politically legitimate and seen as socially fair. Given the magnitude of the hangover from the sovereign debt crisis and the dismal experience of social investment reform in Southern Europe prior to the Euro crisis, there are no quick fixes. The EU must, however, break with the policy legacy of relegating social investment reform to being a ‘handmaiden’ to isopolitical citizenship only – wise to pursue when the economy expands, but prohibited when the chips are down. Only then can social citizenship rights become embedded in a sympolitical ‘holding environment’ that commits, bonds and integrates the EU and the member states to the shared welfare commitment of civilised living in the EU.



De Grauwe, P. (2011), ‘The Governance of a Fragile Eurozone’, CEPS Working Document, no. 346, Brussels: CEPS. 

European Commission (2013), ‘Toward Social Investment for Growth and Cohesion – Including Implementing the European Social Fund 2014-2020’, Brussels: Publication Office of the European Union 

European Commission (2017), ‘European Pillar of Social Rights’, Brussels: Publication Office of the European Union.

Genschel, P., and M. Jachtenfuchs (2017), ‘From market integration to core state powers: the Eurozone crisis, the refugee crisis and integration theory’, EUI Working Papers, Robert Schuman Centre for Advanced Studies, European University Institute.

Hemerijck, A. (2013), Changing Welfare States. Oxford: Oxford University Press.

Hemerijck, A. (ed.) (2017), The Uses of Social Investment. Oxford: Oxford University Press.

Marshall, T. H. (1963) Sociology at a Crossroads and other Essays. London: Heinemann.

Scharpf, F. W. Governing in Europe: Effective and Democratic? Oxford: Oxford University Press.

Scharpf, F. W. (2002) ‘The European Social Model: Coping with the Challenges of Diversity’, Journal of Common Market Studies, 40(4): 645–70.

Streeck, W. (2014), Buying Time: The Delayed Crisis of Democratic Capitalism. New York: Verson.

Zeitlin, J. (2011), Transnational Transformations of Governance: The European Union and Beyond. Amsterdam: Amsterdam University Press. 



Imagine: European Union Social Citizenship and Post-Marshallian Rights and Duties 

By Dora Kostakopoulou (University of Warwick) 


Writing in 1959, Ortega y Gasset [1] noted that ‘reality is not closed and reduced to the past and the present, but holds open the frontier of the future in which the real will be something that has yet to come into being.’ Ferrera and the other contributors in this forum have opened up a debate on the future of EU citizenship and argued for its ‘renovation’ in the light of rising Euroscepticism and nationalist centrifugalism in the member states. Ferrera shares Bauböck’s diagnosis that EU citizenship has not met its integrative potential. While renovation is not always innovation, Ferrera has laid down the path for innovative thinking about the (future) content of EU citizenship and for the introduction of ‘soft’ citizenship duties which would strengthen the ties that bind EU citizens. I am in favour of ‘soft’ as well as ‘hard’ EU citizenship duties and I argue here that EU citizenship is not, and cannot be, duty free. 

My argument is developed in three steps; namely, I discuss a) why EU citizenship is not duty-free, b) why it cannot be duty-free and c) what kinds of explicit duties it could incorporate in the future. I should mention at the outset that I fully share Ferrera’s call for a social EU citizenship and the addition of citizenship duties. But, like Joppke, I disagree with the justification provided and with Ferrera’s confinement of duties to EU citizens. In addition, it seems to me that we might wish to rethink the functionality and the effectiveness of providing ‘instrumental resources (money, benefits, infrastuctures and so on) that could make EU citizenship more salient, visible and tangible for wide constituencies’ (Ferrera). It might be preferable to draw on normative principles and the values of the EU in order to provide a compelling justification for the development of an EU social citizenship (see Sangiovanni and Bauböck) and for the addition of EU citizenship duties. The social dimension of EU citizenship must be grounded on values, and not on money. Material benefits and instrumental means create an impression that the EU should be ‘purchasing’ the loyalty of EU citizens, more often than not do not guarantee a long-term identification with ‘Europe’ – this is confirmed by the Pro-Leave votes in Wales in the UK’s ‘Brexit’ Referendum on 23 June 2016 – and cannot be a substitute for the incorporation of durable and meaningful social citizenship rights and duties into the EU citizenship provisions.  


EU Citizenship is not duty-free

EU citizenship does not encompass  duties for individual citizens, but it is not duty-free. It contains a number of implied duties on the part of the member states (and their authorities) and the EU institutions designed to ensure the implementation of EU citizens’ rights (i.e., mobility rights, political rights, the right to diplomatic and consular protection when travelling abroad and the rights contained in Article 24 TFEU). Article 20 TFEU and the subsequent articles state clearly that ‘citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties’ and that they shall have the rights to move and reside freely, to vote and to stand as candidates in elections to the European Parliament and in municipal elections in the member states of residence, to enjoy diplomatic and consular protection abroad and to non-judicial means of redress, such as those stated in Article 24 TEFU. The word ‘shall’ implies categorical duties on the part of the member states to respect and to realise EU citizens’ rights. In addition, the principles of non-discrimination on the ground of nationality and equality underpin and justify EU citizens’ ‘civil rights’, the right to equal treatment in the member state of residence and political rights. The European Union, on the other hand, has the duty to observe the principle of equality of its citizens in all its activities (Article 9 TEU). EU citizens ‘shall receive equal attention from its institutions, bodies, offices and agencies’ (Article 9 TEU). While all this is true, Ferrera is proposing a different kind of dutiful action and participation. He would like to see: a) the empowerment of stayers through facilitating initiatives and a partial compensation for the negative externalities produced by free movers; b) an increase in the visibility and salience of EU citizenship by inter alia strengthening its social dimension and c) the introduction of EU citizens’ voluntary financial contributions for Europe and civic duties. Such reforms would strengthen the integrative function of EU citizenship and sustain bonds of solidarity. I am in favour of both (b) and (c), but, like Joppke and Kuhn, I have several reservations about (a) which are outlined below. 


Why EU citizenship cannot be duty-free

One does not have to graft the Marshallian paradigm of civil, political and social rights onto EU citizenship in order to justify the need for a social EU citizenship. Nor does one have to compare national and European citizenships in order to conclude that EU citizenship remains relatively underdeveloped in comparison to its national counterpart. Citizenship rights (and duties) can only be exercised in freedom and dignity and the latter necessarily involves a social welfare dimension. Without it, the free exercise of rights loses its meaning since the abstract, autonomous individual remains unshielded from the contingencies of imposed vulnerability. 

The Court of Justice of the European Union (CJEU) has emphasised the need for the protection of vulnerable EU citizens and has justified the extension of the principle of equal treatment to the field of social assistance in the member state of residence on a number of grounds; namely, contribution (for active economic actors), authorised residence, one’s sufficient degree of integration or his or her ‘real link’ with the host society or the employment market and permanent residence. Job-seekers’ allowances and other benefits have also been justified on the basis of an anticipated contribution-based solidarity and the need to facilitate a job-seeker’s integration into the employment market and his or her active participation in it.[2] More importantly, those who assess whether a mobile Union citizen has a real link to the host society or the domestic employment market are the member states’ authorities – not the EU. 

True, the politicisation of free movement in the UK and other member states has accentuated concerns about the preservation of national welfare systems which have already been hit by the sovereign debt crisis and years of austerity, but it, nevertheless, remains the case that claims about welfare tourism in the EU in the main are unsubstantiated empirically. Ferrera acknowledges this. But he also draws attention to the war of narratives and discourses in certain member states and the uneasiness about ‘the burdens of solidarity’ or the ‘social impact of mobility’ in certain areas. As a remedy, he proposes the creation of an EU fund to ease the impact of mobility and for other measures to empower the stayers (an EU social card and universal transferable vouchers). But such a proposal entails risks. Joppke has accurately articulated them. It would legitimise the ‘demonology of European populists’ (Joppke, p. 2); it would ‘divide the European citizenry into two unequal halves, movers and stayers’; and it would depict ‘mobility as harmful and staying as virtuous’. All these are important considerations. To these, I would add that mobility is not cost free for ‘free movers’ and that ‘uprootedness’ and settlement in another member state are not easy, straightforward and risk free processes. Everything has its price. The sad predicament and unacceptable experiences of xenophobia and discrimination of EU citizens settled in the United Kingdom following the Brexit referendum of 23 June 2016 confirm this. In addition, the EU citizenship provisions do not reflect the full panoply of rights that ‘stayers’ derive from EU law. One could briefly mention their access to services of general economic interest, consumer rights, anti-discrimination rights, equal pay as well as to the rights protected by the EU Charter of fundamental rights. 

If we wish to make ‘Europe’ a bit better, we would need to transcend the logic of ‘winners’ and ‘losers’. Whatever one’s mobility status, class origin, gender, race, ethnicity, nationality, religion, sexual orientation, ability or disability and age, the kind of trust and solidarity that exist in communities of strangers is based on institutions that promote rights and welfare for all. This form of trust and loyalty expands the potential radius of solidarity and is often more durable because it is not based on narrow perceptions of self-interest or short-term calculations of one’s contributions or misperceptions about ‘others’ (i.e., non-nationals) and their role and contributions to society. In this respect, instead of justifying a stronger social dimension of EU citizenship and social duties on the basis of a fair (or fairer) mobility agenda, it would be preferable to support the EU social pillar [3] and a social citizenship agenda. This leads me to the final point about what kinds of duties EU citizenship could include.  


What kinds of EU citizenship duties and who should be the duty-bearers?

Since the European Union is a multi-layered polity comprising of ‘its peoples’ (Article 3(1) TEU) and the member states (and their authorities), there is no need to confine future citizenship duties to EU citizens. Indeed, one could envisage a ‘variable geometry’ of duties addressed to Union institutions, the member states and to EU citizens. With respect to EU citizen duties, Ferrera’s proposals of introducing some voluntary contribution for ‘Europe’ and a pan-European civil service for young people are meritorious. Kuhn has also mentioned the newly created European Solidarity Corps (operational on 7 December 2016) and Seeleib-Kaiser supports the introduction of a European Minimum Income Scheme. I endorse all of the above. President Juncker has also displayed leadership in commencing a discussion, and an action plan, on the social dimension of Europe. The European Pillar of Social Rights will be proclaimed jointly by the European Parliament, the Council and the Commission at the forthcoming Gothenburg Social Summit on 17 November 2017. Some of the 20 key principles of the Pillar would be an excellent addition to the existing provisions of EU citizenship. These do not differentiate between movers and stayers. Their addition would make EU citizenship an institution relevant to all EU citizens. 

Let us imagine an EU citizenship with explicit references to social protection (Principle 12), minimum income to ensure dignified living (Principle 14), access to health care (Principle 16), assistance for the homeless and the combatting of homelessness (Principle 19), protection of health and safety at work (Principle 10) and the right to fair wages and protection from dismissal (Principles 6 and 7). Such social citizenship rights would reflect Bauböck’s suggestion of ‘grabbing both horns of the dilemma’ and ‘risking a rough ride on the back of the bull’. But it would also show that the 21st century EU citizenship, like the early 1990s TEU’s version, encompasses vision. It directs our lives with due regard for humane and dignified living, so that in view of it we may live and cooperate with others.  

Besides social citizenship rights and duties, one could also envisage the addition of other citizenship duties. For instance, the draft text on Union citizenship included an environmental right and duty: ‘citizens should have a right to enjoy a healthy environment coupled with an obligation to preserve and protect it’. Writing in the 1990s, I argued that a clause could be inserted in Part 2 TFEU stating that ‘all Union citizens have an obligation to display solidarity with other Union citizens and nationals of third countries. This obligation entails respect for each person’s dignity and the rejection of any form of social marginalisation’ [4]. More recently, I have argued that ‘possible social citizenship duties that might find their way into the TFEU’s provisions on EU citizenship in the future are: a) a duty addressed to both the member states and the Union to promote the equal standing of all citizens in the EU by taking all possible measures to promote labour market participation and to fight poverty, homelessness and social exclusion; b) a duty on the part of the member states and the Union to promote inclusive access to the resources, rights and opportunities needed for participation in the democratic life of the Union; and c) an institutional equality duty applying to all levels of policy-making’ [5].

The EU would also benefit from the incorporation of the right to good administration which is enshrined in Article 41 of the EU Charter of Fundamental Rights into the EU citizenship provisions, thereby extending the scope of the corresponding duty-bearers to the member states (and all public bodies). According to Article 41(2) of the EU Charter this right includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file and the obligation of the administration to give reasons for its decisions. Given that most of the decisions that affect EU citizens (be they movers or stayers) are taken by the authorities of the member states, it is difficult to understand why only EU institutions should have the obligation to observe good and fair administration. Article 41(3) of the Charter also gives every person the right to ‘have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the member states’. Similarly, all public bodies in the member states should be bound by the same obligation. Freedom cannot be separated from dignity and the rule of law and the making of decisions by public bodies in the member states without giving an opportunity to those adversely affected to be heard or without a clear and adequate reasoning epitomises disrespect for citizens and contempt for procedural legality.    


Looking Forward

This interpretation also reveals a post-Marshallian template for EU citizenship. I am certain that scholars, policy-practitioners, civil society representatives as well as the readers of this forum will have more ideas about future EU citizenship rights and duties. Instead of devoting precious time, energies and resources to wasted frictions and unnecessary quarrels, let us welcome the future and reflect on the proposals and the thoughts expressed by Ferrera and all the other contributors in this forum. Free movement and equal treatment (the civil dimension), political participation (the political dimension) and social protection (the social dimension) are important for the development of the self and the flourishing of societies. One cannot promote one dimension and restrict or overlook the others; all are implicated in practice and interact with one another. Similarly, rights cannot exist without duties, be they explicit or implied, perfect or imperfect. An EU citizenship that reflects the values of the EU (Article 2 TEU) and the goals of the European integration project (Article 3 TEU) must have both.    



[1] Jose Ortega y Gasset, Man and Crisis, Ruskin House, London: G. Allen and Unwin, 1959, p. 210.

[2] See, for example, Case C-224/98 Marie-Nathalie D’Hoop v Office national de l’emploi [2002] ECR I-6191; C-138/02 Brian Francis Collins [2004] ECR I-2703; Joined Cases C-22/08 and C-23/08 Athanasios Vatsouras v Arbeitsgemeinshcaft (ARGE) Nurnberg 900 and Josif Koupatantze v Alrbeitsgemeinschaft (ARGE) Nurnberg 900, Judgement of the Court of 4 June 2009.

[3] European Commission, The European Pillar of Social Rights, 24 October 2017, at https://ec.europa.eu/commission/priorities/deeper-and-fairer-economic-and-monetary-union/european-pillar-social-rights_en. 

[4] D. Kostakopoulou, ‘Towards a constructive theory of citizenship in the European Union’, Journal of Political Philosophy, Vol. 4(4), 1996, pp. 337-58.

[5] D. Kostakopoulou, ‘European Union citizenship rights and duties: civil, political and social’, in E. Isin and P. Nyers (eds.), Routledge Handbook of Global Citizenship Studies, London: Routledge, 2014, p. 434.

Why the Crisis of European Citizenship is a Crisis of European Democracy

By Sandra Seubert (Goethe-Universität Frankfurt a.M.)


In his detailed reflections Maurizio Ferrera engages with pressing issues about the future of European integration. He starts from the observation that there is considerable disappointment about the actual effect that EU citizenship has had in the last 25 years since its introduction. This is a quite modest description for the fact that the rise of right wing nationalism and Euroscepticism seems to indicate severe doubts about the functionality and the legitimacy of the existing EU institutions and the project of European integration in general.  In the economic and subsequent sovereign debt crisis tacit consent for the course of integration has evaporated. The EU increasingly influences the everyday life of citizens without at the same time increasing its legitimacy to do so.  What can EU citizenship bring about in this situation? 

The populist attacks against Europe can be interpreted as a result of the current lack of democratic and social integrative sources. Ferrera convincingly analyses the characteristics and flaws of EU citizenship, in particular regarding its social dimension, and proposes an agenda of reform to enhance the integrative function. He convincingly diagnoses the shortcomings of EU citizenship in its “isopolitical” dimension but is rather reluctant to draw more radical conclusion of reform in the “sympolitical” dimension. In what follows I will take issues with some general assumptions of his argument about enhancing social citizenship and reflect on the necessity and nature of democratic reforms. 


Why social citizenship?

Ferrera reconstructs the historical process of a nationalisation of citizenship – its success in creating boundaries and bonds and demanding loyality in exchange for protection – but mentions the main characteristics of democratic citizenship only implicitly: the promise of equality and freedom under self-given laws. In its current shape the EU might just be too far away from this promise, so any allusion to it seems overly risky and comes close to opening a Pandora’s box. But by taking up the language of citizenship this box is already opened anyway. The association of the idea of citizenship with the European Community promised its transformation into a polity whose constituent elements are no longer only the member states.  Has the EU ‘overstreched’ itself with this promise? Ferrera’s argument for strengthening the integrative function of EU citizenship rests on the assumption that the introduction of social rights as entitlements enhanced the salience of citizenship in the (national) past and is likely to do that in the (European) future. While he concedes that much has changed since “Bismarckian” times – welfare states have been retrenched  and changed in their logic of providing assistance – his general intention is to revive this idea: “adding stuff”, i.e. using instrumental resources such as monetary benefits in order to make EU citizenship more salient, visible and tangible in order to “directly empower” European citizens. My concern is that this short-cut might not be successful unless European citizens envisage the European project as their voluntarily chosen common concern. Ferrera describes his strategy as realistic but this also means that it follows up on a problematic logic that has driven European integration so far: to win support by delivering tangible advantages for particular groups. 

No doubt: no political citizenship without social citizenship. Political participation must not appear as a class or status privilege (if it is supposed to be democratic). But if citizenship is about authorising the laws one is subjected to, its normative core is about empowerment rather than protection. Citizenship is not a status that the enlightened monarch, in this case the European leaders (or an avant-garde judiciary as Susanne Schmidt argues), can bestow on subjects. Citizenship is about the development of a political subjectivity and a practice through which free and equal individuals collectively take their fate into their own hands. Enhancing EU citizenship would thus mean: moving away from the current focus on protecting rights – even if they are no longer primarily the rights of economically active ‘mobile’ citizens and include the socially disadvantaged – and putting the political agent who wants to influence the conditions of his/her existence at the centre. 


Countering Anti-European Politics

Christian Joppke suggests that it might be a categorical mistake to apply the citizenship concepts to the EU in the first place, since the EU is a regulatory regime rather than a “protection racket”. We have every reason to be suspicious if EU citizenship is supposed to conceal this. Absolutely true, but doesn’t this suggest another conclusion? The division of labour between economic, regulatory policies as European issues, on the one hand, and social, labour market and redistributive policies as national issues, on the other hand, is currently deeply contested. With every new step of integration, in particular with regard to Economic and Monetary Union, transnational interdependence has been growing, creating a need for political debate and discretion which is at odds with the depoliticised intergovernmental mode of decision-making in the EU [1].

The crisis of European democracy and the crisis of European citizenship go hand in hand. Detached from political space the European citizenry is left without clear addressees for dealing with social and political conflicts. The EU is not yet perceived as an (emerging) context of justice. The framing of justice has for a long time been gripped by a “Westphalian political imaginary”, which means it has been restricted to the modern territorial state [2].  Indeed, what is needed is a “broader conception of social justice in Europe” (Andrea Sangiovanni). In the current institutional set up, taking on the pan-European perspective of a Union citizen is systematically discouraged. What a European democracy demands is a transnational coding of social conflicts, a border-crossing articulation and deliberation in order to make them visible and understandable as transnational economic or cultural lines of conflict [3]. But what we witness instead is a resurrection of national stereotypes. Since the cosmopolitan, pro-European elite has difficulties in convincingly explaining why membership in this Union is worth promoting, disadvantaged citizens from prosperous member states tend to be in favour of putting an end to European integration, whereas less well-off citizens in the Union’s deficit countries demand redistributive policies within the Union which most of their prosperous counterparts are likely to refuse [4]. It becomes painfully obvious that European citizens are not yet members of a solidly political Union, but that they are still primarily members within a Union of states, where national interests are played off against each other.

There is a fatal misframing of social conflicts along national rather than social cleavages. How can this misframing be broken up? A politicisation of European issues is needed. As Rainer Bauböck rightfully stresses: The dilemma of EU citizenship is a political one and needs to be addressed in a political arena.  In the institutional architecture of the EU the European Parliament is the actor that is most likely to articulate and win recognition for transnational social interests. But it cannot be successful without social intermediaries: an active civil society and citizenry that would pass on the conflicts negotiated in parliament to the various democratic publics and vice versa [5]. In the long run the future of EU citizenship will depend on how a multilayered governance system such as the EU will be able to balance the different levels of political participation, thereby accommodating principles of political equality, public control and influence on political decisions.  “Liberal de-dutification” (Joppke) is not a particular problem of EU citizenship, but what is a particular problem is the lack of a clear social reference group: a community of citizens who grant each other rights on the basis of reciprocity. The challenge lies in the construction and legitimation of new frames of reference for the deliberation of social and political conflicts. This is indeed a republican project but different from the one that Richard Bellamy envisages. Bellamy argues in favour of a complementary status rather than a fundamental status of all EU citizens on the basis of a protection of “diversity”. His idea of “republican intergovernmentalism” is concerned with promoting equality of concern and respect between the different citizenship regimes of the EU’s constituent member states. But in a context such as the current EU, in which social and economic spheres are decoupled, “protection of diversity” might well disguise power asymmetries and lead to a conservation of wealth disparities and inequalities. 

Coping with the crisis demands effective coordination of economic and financial politics But the peoples of the member states cannot be expected to give up creative power at the national level without a clear substitute on the transnational level in sight. That is why the answer to the crisis is unavoidably connected to issues of European democracy.



[1] Claus Offe, Europe Entrapped, Cambridge, UK/Malden, USA 2015, pp.25-28.

[2] Nancy Fraser,  Scales of Justice. Reimaging Political Space in a Globalizing World, Cambridge, UK/Malden, USA 2008, p. 12.

[3] E.g. contrary to public representations it is not Germany as a whole that is „Export Master“, but certain regions, in particular in the South-West, whereas e.g. Northern Italy is comparatively more productive than East Germany. 

[4] It is remarkable that left-wing protest movements in debtor states such as Spain or Greece and the majority of the population in these countries are not ‘anti-European’ in general and not in favour of an exit from the EU, but rather against austerity policies which they identify primarily with Germany. Exit options are rather articulated in the relatively well-off member states. For an instructive differentiation of the Northern European New Right, a Central-East European defensive nationalism and a Southern European, pro-European and pro-refugee New Left, see Hanspeter Kriesi, ‘The Politicization of European Integration’, The Journal of Common Market Studies, 54 (S1) 2016, 32–47 .

[5] See also the proposal by Thomas Piketty et al. for a parliamantary assembly of  the euro-zone which is supposed to be combined of members of the EP and members of national parliaments (Stephanie Hennette, Thomas Piketty, Guillaume Sacriste, Antoine Vauchez, Pour une Traité de democratisation de l’Europe, Le Seuil, 2017.

Regaining the Trust of the Stay-at-Homes: Three Strategies

By Philippe Van Parijs (EUI and Université catholique de Louvain)


I greatly appreciate and warmly welcome contributions that go far beyond criticism and lamentation and make concrete proposals for improving Europe’s state of affairs. We have a plethora of jeremiad rehearsers.  We need far more people like Maurizio Ferrera with both the courage to stick their neck out and the readiness to learn from their critics — without losing courage.


Two distinctions 

I found the framing of the central issue in terms of Paul Magnette’s distinction illuminating. Very roughly, the actual and potential exercise of the isopolitical rights granted by the EU (essentially the four freedoms plus non-discrimination) are gradually undermining the member states’ capacity to keep effectively guaranteeing to its citizens some of the sympolitical rights they were used to (not least various aspects of physical, socio-economic and cultural security).  

This stylised formulation of the central issues fits in with a second distinction adopted by Ferrera: a distinction between two categories of European citizens which I first heard used in this context by Koen Lenaerts, the president of the Court of Justice of the European Union (CJEU).  For “movers”, the creation and expansion of their EU-wide isopolitical rights can easily compensate the reduced effectiveness of the sympolitical rights granted by their own state. But for the “stay-at-homes”’, this is far from obvious and they cannot easily be fooled into taking it for granted. No wonder that some political entrepreneurs identified the juicy slot, with a thriving anti-European populism and a widely felt legitimacy crisis as a result.


All movers 

If this is a fair stylised characterisation of the core of the EU’s current legitimacy crisis, there are three straightforward strategies one can think of.  A first one, arguably the dominant one from the side of the European institutions, consists in trying to convert as many stay-at-homes as possible into movers. Those attracted by this strategy presumably feel encouraged by the economic creed that market-driven mobility is good for efficiency, as it enables factors of production to move to those locations where they are most productive. 

However, the mobility of workers and of economic activities also produces effect too easily ignored by economists: the dislocation of communities in both the countries of origin and the countries of arrival. Linguistic diversity makes these externalities far more serious on European scale than on national scale. A Europe with a majority of movers would not be a solution. It would be a catastrophe.  Ferrera’s modest proposal to further extend Erasmus-type mobility beyond a privileged fraction of university students can make sense for several reasons, but this cannot be seen as a first little block of what might provide a structural solution. 



The second strategy consists in curtailing the isopolitical rights that are the cause of the problem. In an ambitious interpretation, these rights currently include the right for any EU citizen to settle anywhere in the EU and enjoy, whichever member state she settles in, the same sympolitical rights as the citizens of that state. The de facto and largely de jure restriction of these rights to workers, active job seekers and their dependents is arguably required to discourage “welfare tourism” and thereby to protect the effectiveness of the sympolitical rights conferred by national welfare states. In the pre-Brexit-vote negotiation, the UK asked for the possibility of discriminating further, by denying immigrant workers from EU countries access to some in-work benefits. And one of the options many British soft-Brexiteers would be delighted to see accepted is full access to the EU market combined with full control over who is entitled to enter the UK — an option firmly rejected so far by the EU side. I understand the EU’s negotiating stance, if only as a requirement for blocking the UK’s appetite for further expanding, through cherry-picking, the massive net brain drain of half a million highly educated EU 27 citizens currently living in the UK. 

However, as a general measure within the EU, would a shrinking of isopolitical rights not be an acceptable option if that is required to regain the allegiance of the stay-at-homes?  Ferrera shows little inclination in this direction. No doubt such infringements on the principles of free movement and non-discrimination would require treaty changes. But with a crisis as deep as the one diagnosed at the start, is there any hope of resolving it with unchanged treaties? More decisively, these infringements would amount to giving up fragments of an extraordinary achievement from which the EU can derive legitimate pride. Free movement and non-discrimination are not only good, up to a point, for economic efficiency. They are also good, ceteris paribus, for the sake of social justice, though not if ceteris are so far from paribus that they end up undermining valuable national sympolitical rights. We should therefore stop pondering more or less radical versions of this second strategy only if there is enough hope from the side of the third one — which, I believe, enjoys Ferrera’s preference, as it does mine.


Caring Europe 

The third strategy consists in creating or expanding sympolitical rights at EU level or at least in making some existing EU policies that currently operate via member states governments be perceived more like sympolitical rights directly bestowed by the EU. This is how I interpret his proposal of a social card, or his idea that, in the distribution of its structural and regional funds the EU should be clearly identified “in the last mile”. I am not sure this last idea will do much to assuage the resentment of the stay-at-homes of the richer member states. Surely, they are likely to realise that, if their country is a net contributor to the EU budget, more could and arguably would be done for them, not less, in the absence of EU policies.  In at least one of Ferrera’s proposals, the EU labelling of the “last mile” might even be counterproductive: if it is the EU that is seen by locals to pay for the benefits of asylum seekers and refugees, for example, some may indeed think: “At least we are not paying for them”, but others perhaps also: “It is again for these foreigners that the EU is opening its purse. Nothing for us.” 

Whatever problems specific proposals may raise, however, I do agree fundamentally with Maurizio Ferrera that the key to the solution we are seeking is the resolute creation and expansion of EU-level sympolitical social rights. The EU must become a caring Europe and be seen to be one. Proposals such as funds for the retraining of workers hit by “globalisation”, an EU-wide complementary insurance scheme for short term unemployment, Michael Bauer and Philippe Schmitter’s proposal of a means-tested Euro-stipend and the proposal of a universal Euro-dividend each have their own advantages and disadvantages, but they all fit in this category [1].   For the sake of addressing our problem, they are far superior, it seems to me, to inter-state reinsurance systems, as likely to appeal to the technocrats as they are unlikely to enthuse the stay-at-homes. 

As a further variant of this strategy, Ferrera’s idea of a voucher for life-long learning also seems to me well worth exploring further, especially if it goes along with making available to all EU citizens some educational resources developed at EU level, starting with the translation softwares developed within EU institutions. Blended lifelong learning — combining the mobilisation of the cognitive wealth of the internet with local critical and creative appropriation — are key to both justice and efficiency in this century. Playing a major role in it is one of the ways in which the EU can become — and be perceived to have become — a caring Europe.



There was not that much in Maurizio Ferrera’s paper about the duties which the title of this debate suggested we would see defended. Certainly a single army and compulsory military service for all European men and women would be a magic bullet for the strengthening of the European identity and thereby for the sustainability of a caring Europe. Largely for good reasons, this is not an option. But a European army should be one, and also conscription into an appropriately designed European civil service. I am in the scientific committee of the initiative that supports the creation of a voluntary civil service open to all Belgians. I am in favour of making it compulsory, and indeed of Europeanising it. But many details in the implementation matter greatly to prevent it from proving counterproductive. 

At EU level, just as at the local or he national level, however, the most important civic duties are not legal ones. At all levels, political leaders must become able (again?) to tell their respective peoples: “Don’t ask what your municipality, your state, the Union can do for you, but what you can do for them.”  For this not to sound ridiculous, leaders must deserve the trust they are expecting. And institutions must be shaped so as to enable them to deserve this trust. From this perspective, institutions that turn the EU into a caring Europe are a must.



[1] See Dullien, Sebastian, „Why a European unemployment insurance would help make EMU more sustainable“, Social Europe, 3 October 2014; Schmitter, Philippe & Bauer, Michael W. "A (modest) proposal for expanding social citizenship in the European Union", Journal of European Social Policy 11 (1), 55-65, 2001; Van Parijs, Philippe, “The Euro-Dividend”, Social Europe, 3 July 2013, and Van Parijs, Philippe & Vanderborght, Yannick, Basic Income, Cambridge (Mass.): Harvard University Press, 2017, chapter 8.


Social Citizenship, Democratic Values and European Integration: a Rejoinder

By Maurizio Ferrera (Università Statale di Milano)


This Forum debate has gone way beyond my expectations and hopes. I thought that commentators would mainly address my proposals on enhancing rights and introducing duties. The conversation has instead extended to my diagnosis as well, to the rationale which lies at the basis of my prescriptive ideas. By focusing on starting points, the forum has thus brought into light different perspectives and styles of reasoning around citizenship and even broader political questions. With hindsight, I should have spelled out more carefully my basic assumptions. But there is time to remedy this now – and not just for the sake of this particular discussion. I am in fact convinced that a closer and more systematic dialogue between empirical, normative, legal and social theorists would be a welcome and beneficial innovation, a way to contrast excessive disciplinary perspectivism and the related risks of analytical lock-ins. 

I will begin this rejoinder by addressing the disagreement on starting points. I will then move to general issues of democracy, citizenship and social rights. Next, I will revisit my proposals in the light of the critiques and suggestions received. In the concluding section, I will broaden again the scope towards conceptions of justice, political legitimacy/stability as well as towards possible visions about the future of the EU.


Two perspectives on politics: alternative or complementary?

My starting point is empirical-theoretical. I have taken stock of the historical developments which led to the consolidation of nation-based (social) citizenship rights and – based on an extensive scholarly literature – have highlighted the key political function they served for state formation. Social rights expanded opportunities and created an area of equality vis-à-vis certain risks and needs; they connected citizens in a web of reciprocal obligations, fostered identity and community ties – both having a strong ‘bonding’ and emotional component [1].  I see EU citizenship as a novel step in this long term development of right-based citizen empowerment. But I suggest that the integrative and legitimating potential of EU citizenship is not only weaker than its national counterparts, but also ripe with potentially divisive consequences, due to its isopolitical nature. I do acknowledge that workers’ mobility can bring and has indeed brought substantial economic advantages. But functional arguments and evaluations play a secondary part in my diagnosis. And while I appreciate Richard Bellamy’s friendly effort to extract an unarticulated moral view from my reasoning (a form of cosmopolitanism), my own effort has gone in a different direction: analysing EU citizenship as a political instrument which – regardless of its functional or normative rationale – can produce (or not produce) political cohesion and stability. My questions rest on a realist conception of politics, conceived as the sphere whose foundational task is to ‘keep the community together’ (of course under democratic constraints in the cases discussed here) and to look at citizenship in this perspective. Bellamy goes some way in my direction when he defends the nation state (and thus boundaries) in instrumental terms, i.e. as the most effective system and territorial container devised so far for safeguarding responsiveness, accountability and equal rights. But my perspective takes an additional step by asking: what are the empirical conditions of possibility for nation-building (or EU- building) and for the political viability over time of the democratic state (or the Union)? And what role can (EU) citizenship play in this context?

Many commentators have either not captured or not appreciated my empirical perspective. Christian Joppke considers my association between national citizenship and political bonding/loyalty as a “questionable idealisation” and dismisses “affectual and normative attitudes” towards state authorities as “delusional at best”. What is the ground of such a severe takedown? If I understood him correctly, Joppke espouses a state theory whereby the protection logic of national citizenship has mainly served to coat the elementary state function of providing security with “flowery allegiance and loyalty”. As factual judgements, these statements sound quite daring and far-fetched to me. The war-welfare nexus has been indeed highlighted by a wealth of comparative historical works. But even if and when social programmes were originally introduced to “coat” the warfare goals and strategies of the nation state, their “protection logic” has subsequently acquired an autonomous dynamic, which in most cases started to generate genuine bonding, loyalty and diffuse support. If this is the historical case, I fail to see why puzzling about the integrative potential of EU citizenship should be “a category mistake”. It is precisely by using this category that we can single out the political differences between state-building and EU building and identify the limits and constrains of the latter compared to the former.

Joppke criticises my starting point also from a normative point of view, defining as “retrograde” my remarks about mobility rights being restricted to EU citizens and not (fully) to third country residents. To begin with, this is today a fact, with factual implications that need to be captured and empirically analysed. Second, as aptly noted by Rainer Bauböck, the dimension of exclusion inheres in any concept denoting membership and inclusion. It is true that, from a normative perspective, the balance between inclusion and exclusion must rest on principled justifications. But, again, my metric is realist-political. Citizenship integrates and legitimises political power to the extent that it ‘bounds’, that it is a recognisable marker of an insiderhood to which certain selective advantages are associated.  I am not formulating a value judgement here; I am not saying that things ought to be this way. What I am saying is that we have empirical evidence that citizenship, when operating within a politically bounded space, has a potential to integrate and legitimise. The ‘good’ in which I am interested is the political cohesion of the EU. In this sense, and only in this, I make a value choice. But it is only a very weak ‘value-related’ choice à la Max Weber. I merely believe that it is interesting and important to raise questions about the viability of the EU, given its undeniable conspicuousness as a political entity and its increasing role in shaping people’s life chances. Nothing more or less.

The contrast between the empirical and the normative perspective is best exemplified by Frank Vandenbroucke’s and Andrea Sangiovanni’s well-articulated contributions. Both outline distinct conceptions of justice for EU solidarity and free movement in particular. And they both embark on this exercise because they deem my reasoning lame (my interpretation), peripheral (Vandenbroucke) or lacking (Sangiovanni) in respect of the more ‘foundational’ debate about justificatory principles. For them, the basic challenge which I dodge is how to address the question of an ideal (presumably rational and informed) citizen asking, in Sangiovanni’s words, “why should I accept or enhance EU citizenship?”. I concede that my empirical and realist arguments would have little traction indeed were I ever to engage in a philosophical disputatio of this sort.  But would they remain equally unpersuasive if I engaged in a debate with a real world Europhile politician struggling everyday with the problem of consensus? In this situation, it would probably be the philosopher’s view that has little traction and might be considered unfit for pragmatic purposes. It is, indeed, a matter of perspective as well as of interlocutors. I locate myself in the real situation of late 2010s Europe; I notice that the fact of free movement causes the fact of Euroscepticism; I surmise that this dynamic may well jeopardise the political stability of the EU as such; I draw on the toolkit of comparative politics and public policy analysis and suggest that a recrafting of EU citizenship might contain this threat. In addition to my fellow political scientists, my interlocutors are essentially the policy-makers. Yes, I confess: the elite. Not because I am dismissive of ‘the people’ and cynical about the stylised processes of democratic will formation elaborated by political philosophers. But rather because I think that elites are and should not only be spokespersons of their voters, but responsible leaders as well. (Remember the polemic between Edmund Burke and his Bristol electors?) And, in my perspective, ‘keeping the community together’ in the face of pluralism and disagreement (and hopefully building constructively on both) is a key task of responsible leaders. 

As self-contained conceptions of EU social justice, I do find Sangiovanni’s and Vandenbroucke’s arguments coherent and largely convincing (with some caveats, starting from those raised by Bauböck). They have an academic, but also a political relevance, to the extent that they can provide valuable symbolic resources to policy-makers puzzling about problem-solving and consensus-building. But – as both authors obviously know – the public acceptance of these arguments cannot be taken for granted. What can be done if there is disagreement? In the philosopher’s perspective, one should probably move up one level and interrogate philosophical doctrines about political justice, which specialise in principles on how to fairly manage disagreements. This regress ad infinitum is however of little use for real politics and real politicians, struggling with conflicts here and now. Without detracting from the importance of principles and normative reasoning, empirical political theory shifts the focus on how institutions and policies relate to system performance and diffuse support. Collective acceptance for the right reasons remains a desirable ideal goal and may even result in greater stability. But, in Weber’s wake, empirical political theory conceives of legitimation as a more complex property and process, resting not only on reasons (normative and instrumental) but also on affectual and traditional orientations. It is this mix of motives that allows a real world polity to survive what Ernest Renan called the “daily referendum” on associative life and collective institutions.

The debate has revealed another misunderstanding that I may have inadvertently originated in my initial contribution and that needs to be cleared. Joppke has raised the worry (which has resonated in other comments as well) that my diagnosis and proposals may bring ammunitions to the enemy, i.e. “populist demonology”. Let me be crystal clear: in acknowledging the fact of Euroscepticism and the profusely documented increase of chauvinist orientations of European voters, I certainly do not imply that one must be indulgent towards such phenomena, not least because of their manipulative character. On the other hand, a mere judgement of fact cannot be accused of buying into the enemy’s views. And while I do agree with Dorte Martinsen that researchers should concentrate on fact finding and perhaps even engage directly “with the tensions described, be they mainly perceived or real”, I must be able to use descriptive categories such as ‘stayers’ or ‘movers’ and of analysing observable social and political tensions between them without being accused of covert intelligence with the enemy. 

The most appropriate and fruitful conclusion of this discussion on fundamentals is a plea for mutual understanding and collaboration between normativists and empiricists. What I have in mind is not just a modus vivendi, but the construction of an overlapping consensus whereby: 1) each side makes an effort to acknowledge an equal, if obviously different, theoretical relevance, purchase and autonomy on the other side; 2) both look more closely into each other, especially when normativists make descriptive or causal arguments and empiricists deal with values or undertake political or policy evaluations. To some extent this construction is already under way. I find that it is a challenging enterprise, opening novel avenues of research especially for younger scholars. 


Citizenship, democracy and European integration

Magnette’s distinction between sympolitical and isopolitical citizenship rights has proven very useful to frame the entire debate. It has also pushed some commentators to focus on the political dimension of citizenship – equal participation rights to democratic self-rule. Sandra Seubert is correct in pointing out that I have not adequately addressed this dimension in my historical reconstruction and diagnosis. The European project, Seubert argues, ought to be voluntarily chosen by citizens who consider it as responding to common concerns. If this is not the case, then my proposals would just reinforce the problematic logic that has driven European integration so far: buying consensus by delivering tangible advantages for particular groups. Van Middelaar has defined this logic as the Roman strategy of EU consensus building through panem et circenses – and without even reaping the full benefits of this [2].  

Does my realist perspective inevitably make me a Bismarckian in disguise or, at best, an elitist and paternalist liberal-democrat? Probably yes, if the starting point is a normative preference for participatory democracy based on individual equality and freedom under bottom-up, self-given laws. But that is not the only possible starting point. When I became a political scientist, I started to appreciate ‘Schumpeter’s other doctrine’, i.e. the so-called competitive theory of democracy, which, in my reading, is not an elitist juxtaposition to the participatory view. It rather corrects the latter by bringing back into the democratic scene the important figure of the (would-be) elected leader and by drawing attention to the electoral logic as such. In the real world, free elections inescapably activate a quid pro quo dynamic whereby whats (policy programmes inspired by different values and ideologies) are exchanged for whos (votes in support of competing political leaders promising whats). On this view, political citizenship confers an equal (if minimal) power resource – the individual vote – which can be spent during electoral exchanges. Democratic rights of political participation logically presuppose civil rights and are in their turn instrumental for the acquisition and defence of social rights. Once the whole package is in place, the famous Marshallian tryptic generates mutual synergies; citizenship not only acquires a self-sustaining equilibrium but becomes a unique instrument for taming and controlling vertical power through the multiplication of the horizontal powers and endowments of citizens, in their various social roles and life situations. The keystone of this system is sympolitical closure. Who gets what, how and when is the result of domestic democratic politics, which produces collectively binding sovereign decisions. Domestic markets – for goods, services, capital and labour – can of course be (made) open. But key national decisions result from citizens’ endogenous preferences on how to manage the consequences of openness and define/redefine its boundaries. My conclusion is not dissimilar from Seubert’s (democratic empowerment is the core) but on my view the core is derived from empirical, not normative theory. 

Gradually, and to some extent creepingly, the EU has lifted the sympolitical keystone. Isopolitical integration has caused increasing cross-system externalities which can no longer be democratically managed at either the national or the supranational level. The EU is today a quite peculiar political system which defies all our analytical categories. We say it is “far from federal”. But in certain policy areas regulatory standardisation linked to free movement has gone way beyond the limits that historical federations (such as the USA or Switzerland) have not dared to trespass. Swiss cantons still enjoy wider margins of residency-based ‘discrimination’ than EU member states. In the US it is true that “states cannot select their citizens”, especially when it comes to welfare, as Martin Seeleib-Kaiser reminds us. But they can, for example, charge higher fees to out-of-state students applying to state universities and delay residence requests by students for the mere purpose of paying lower fees. The Court of Justice of the European Union (CJEU) has become a hyper-federal watchdog of EU law and its supremacy over national law – with serious social consequences, as correctly highlighted by Susanne Schmidt. Another indicator of hyper-federalism is the extent to which some policy decisions are delegated to non-majoritarian institutions with very wide regulatory autonomy (e.g. as regards state aids, competition, or banking supervision). It is true that this institutional architecture has resulted from ‘demoicratic’ procedures and decisions in the past (the CJEU was born from the Rome Treaty, the ECB from the Maastricht Treaty, and so on). But the fact is that today such institutions find themselves far removed from the basic form of democratic control: the vote of individual citizens. In some other core areas of state power (e.g. fiscal policy: taxing and spending) we are under the illusion that the EU only rests on intergovernmental coordination. But we use intergovernmentalism as an indicator of inter-nationalism, in Bellamy’s sense: a two level game in which national citizens mandate their governments to negotiate inter-national agreements under the implicit assumption that subsequent decisions under these agreements remain responsive and accountable to national citizens. This is no longer the case. Under the reformed Growth and Stability Pact, the Commission’s decisions on macroeconomic imbalances or budget deficits (decisions which may have huge consequences for ordinary citizens) can be rejected only through a reverse qualified majority rule, which has been (correctly in my view) equated with ‘minority rule’. I am afraid that the EU has long ago ceased to conform to that ‘republican inter-nationalist’ blueprint praised by Bellamy. And I think this also obtains for the intuitively appealing demoicratic formula of “governing together, but not as one”. If my diagnosis is correct, in key policy areas the EU has already become a powerful “one”, in which some demoi (not to speak of some citizens) are more equal than others. 

What are the consequences of this opaque regime (that we find very hard to define in terms of democratic theory) for the Marshallian tryptic described above? The least that we can say is that the new regime has entirely destructured the coherence of the tryptic and heavily undermined its effectiveness and even viability. Strangely enough, this situation has been endogenously generated. Democratic sympolitical decisions have originally authorised isopolitical standardisation of economic and civil rights. Such decisions have also deliberately transferred some sympolitical sovereignty to the supranational level. The latter has gradually undermined the content and quality of domestic social rights. The hands of national citizens have been tied: in certain domains their votes have become ineffective or no longer requested. It is unclear which majorities prevail, in some cases the rules even allow minorities to prevail. 

A full account of how we got here is way beyond the scope of this rejoinder. Empirical political theory suggests that to some extent we have been victims of unintended consequences and perverse effects of institutional logics. We should also be careful not to neglect the enormous advantages that integration has produced: not only more aggregate welfare, but also robust safeguards for peace and security. As noted by Bauböck, the EU was born to anchor the post-war system of fragile and shattered democracies. And still today we badly need it to secure the conditions of possibility for democracy in Europe. I would add a second consolation. Political supranationalisation has partly served – especially in certain member states – as a beneficial constraint for irresponsible domestic choices in taxing and spending and as an incentive to engage in responsible strategies of functional and distributive rationalisations. There were important cross-national variations in the coherence and balance of the Marshallian tryptic and some did need significant corrections, especially in terms of financial duties (see below). 

The bottom line of my reasoning is, however, that the EU citizenship regime(s) are currently skewed and unstable. Let me then turn to the question of what can be done, focusing on one particular instrument: EU citizenship in its social and duty components.


Caring Europe, my proposals and the “holding environment”

Agreeing with my diagnosis about a growing tension between stayers and movers, Van Parijs identifies three fundamental strategies of response. The first (“all movers”; we could also call it “more of the same”) consists in “converting as many stay-at-homes as possible into movers”. Since a total conversion would be obviously impossible, let us say that this strategy should rest on persuading the stayers to internalise the functional and normative rationales of mobility as a collective benefit. But empirical evidence tells us that an increasing number of stayers do not (no longer) buy into that view. The “all movers” strategy is not a solution, but an aggravation of the political problem. The second strategy is “retreat”, i.e. curtailing those isopolitical rights that cause the problem. I did not discuss retreat in my introduction, but yes, I believe that there is room for some steps in this direction [3].  I fully agree, for example, with Schmidt that limits should be posed to the judicialisation of citizenship. I also think that the mobility regime can be partially reconfigured in a restrictive direction through secondary legislation alone – no Treaty changes needed. The third strategy is “Caring Europe”, which was first submitted to EU leaders in exactly this wording by a group of scholars (myself included) during the UK presidency of the EU in 2005, under Tony Blair [4].  The political rationale of Caring Europe is not Bismarckian. And while this strategy alone cannot remedy the loss of individual democratic control, it can indeed kill three birds with one stone: 1) it can backstop the centrifugal, Eurosceptic dynamics as well as the destabilisation of the Marshallian tryptic; 2) it can safeguard the functional and social justice gains ingrained in free movement; 3) it can contribute to the overall durability of the EU polity by thus preserving the otherwise vulnerable pre-conditions of peace and democracy in Europe (Bauböck’s argument). 

The Caring Europe strategy has precisely informed my concrete proposals, so let me now revisit them in the light of the debate. Both Seeleib-Kaiser and Ilaria Madama underline that there is already more ground than meets the eye for implementing some of my proposals and that the Commission is well aware of the need to integrate stayers in the mobility and social agenda of the EU. This should at least partly overcome the scepticism of Martinsen who is worried about the lack of time and political support for my proposals to materialise swiftly. To a large extent, my proposals merely go in the direction of a political rationalisation of the status quo: reaping all the consensus building potential of those instruments that are already available. One might ask: if it is so easy, why has it not been done already? The answer lies in the level at which such decisions are taken and the interests/views of decision-makers at that level. Making sure that the EU role can be captured at the street level and “in the last mile” or introducing a social card is not European Council stuff. These nitty gritty provisions are decided by the lower echelons of EU and national bureaucracies primarily interested in administrative and practical details. Last mile implementation is under the radar of local politicians ready to capture the credit of any panes or circenses accruing to their voters. The integrative and legitimising potential of my proposals should be brought to the attention of top leaders, those who are ultimately responsible for the EU’s stability and durability. The launch of a social card for accessing all the already existing co-funded programmes of the EU that provide advantages to all citizens, whether stayers or movers (as well as the enhancement and greater visibility of the external protection advantages of the EU passport) should be promoted by top leaders and could be done rather easily. 

The introduction of a voucher scheme (and I like Theresa Kuhn’s idea of using in some way the label “mobility bonus”) and of a universal skills guarantee (maybe also a “children guarantee”) require sympolitical agreement. But the skills guarantee is already on the agenda: it could well be deliberately crafted so as to maximise its visibility to the stayers.  Some commentators (Sangiovanni, Vandenbroucke, Hermann, Hemerijck) have rightly noted that mobility may not only generate some losses for the stayers of the countries of destination, but also of the countries of origin (e.g. through brain drain). Here the solution could be an active involvement of the EU in sponsoring “return mobility” programmes. The Central and Eastern member states have already launched national initiatives in this direction to bring back home the drained brains” and to help the relocation of their nationals residing in the UK. EU complements to such initiatives would be a very good idea. A sympolitical consensus on a dedicated EU insurance scheme for mobile workers is more difficult to piece together, I acknowledge this. This proposal has been around for many decades, without attracting the attentions it deserved. What is required here is a shift from functional to political attention, in a context of increasing contention about mobility. A similar (and more demanding) shift is needed also for the possible introduction of an EU fund against cyclical unemployment. Here the obstacles concern not only political consensus building, but also epistemic convergence, given the currently prevailing obsessions about ‘moral hazard’ on the side of ordoliberal elites and experts. More than a century of experience with mass social insurance against unemployment at the domestic level (initially opposed precisely on moral hazard grounds) should indicate however that there are ways of containing the risk and that the risk itself is not so high after all. 

Some commentators have themselves made additional proposals in the logic of a Caring Europe. There is no space to enter into the details and I do share the logic (if not all the details) of such additional suggestions. I would like to briefly comment, however, on the more ambitious strategy outlined by Vandenbroucke and Anton Hemerijck about moving towards a European Social Union of some sort [5].  Under this approach, the core of social sovereignty should remain at the national level, where redistributive issues can still largely (but not entirely) be dealt with via national sympolitical decisions. In Vandenbroucke’s contribution, one task of the Union should be to make sure that member states do guarantee (via binding constraints or surveillance?) sufficient social provisions and legal minimum wages for whoever legally resides within their territory. In Hemerijick’s contribution, the Union should essentially provide a “holding environment” for an effective functioning of national social protection systems. If I understand him correctly, Hemerijck espouses a ‘softer’ overall approach, in the logic of the Lisbon and EU2020 agendas, which now underpin the newly created European Pillar of Social Rights. And he is not sure whether it is essential for the EU to claim political credit for its institutional scaffolding. In addition, he feels half way between the inter-national position of Richard Bellamy and my alleged supra-national position. But as I argued above, supranationalism is already with us, and rather ‘hype’ in some policy areas. Taking it apart – at least to a certain degree – may be functionally and normatively desirable. But is it institutionally feasible, short of a financial/monetary catastrophe? Brexit is teaching us how difficult it is for member states to disentangle themselves from the EU in ways which are decently reasonable in normative and instrumental terms. In this sense, I fully agree with Bauböck that the EU has become a community of – “prosaic and not at all romantic” – destiny. It is the famous historical institutionalist argument about the temporal quasi-irreversibility of complex institutions (you cannot put the toothpaste back into the tube once you have squeezed it out). My doubts about Hemerijck’s softer and semi-internationalist notion of a socially friendly “holding environment” (HE) are fourfold. First, would it imply a partial dismantling of the supranationalist excesses that we now have (as proposed, among others, by Fritz Scharpf) [6]?  Would this HE essentially be a top-down construction promoted by enlightened leaders, technocrats and experts? Is it realistic to expect that HE would reinforce “loyalty to the EU as a common possession of a union of welfare states” in the eyes of voters already mobilised by anti-EU parties? And finally, how can we manage the dangerous and destructive politicisation that free movement has already triggered off? My modest proposals for the short term are motivated by these latter developments. But also for the long term, I think that we should definitely have a plausible and deliberate legitimation strategy for the EU (even as a holding environment) which will never be effective without at least a modicum of Roman policies.


What about duties?

The question of duties has remained somewhat in the shadows of the debate. In my initial contribution I had myself been cautious and modest on this front. The link between duties, and especially tax paying duties, and legitimacy is complex and full of strains. Many of the existing Eurosceptic parties were born as anti-tax parties. If our aim is to enhance the integrative potential of citizenship, we should tread very lightly on this terrain, adopting, as I suggested, a nudging rather than a binding strategy.

Since Joppke has launched an attack on the very idea that citizenship ought to imply duties, I feel a duty to respond. I understand that in normative and legal theory there is an articulated debate on this issue. I do not enter into this debate but will try to summarise my realist approach, in the hope of making my normativist colleagues aware of the essentials of the empirical theory on rights and duties. The production of political goods (policies and generalised compliance) requires ‘extractions’ from the members of the territorial community, the most obvious exemplars of which have historically been conscription and taxes. Are these extractions part of the citizenship package? Definitely yes, in my perspective. As the etymology of the term clearly suggests, being a citizen means being a member of a civitas, a legally constituted collectivity. Since extractions are a precondition for the survival of the latter, a citizen cannot avoid the duties of membership which inhere in her very status as such. Fulfilling one’s duties (which also and predominantly means, in ordinary life, to respect the rights of fellow citizens and the prerogatives of the authorities) is key for the success of the “daily referendum” on the political community. Why do citizens fulfil their duties? In my perspective, this is immaterial. Some may do that “for the right reasons”, some for habit, custom, romantic affection. As I said above, in real world polities, legitimacy rests on a mix of motives. Is the correspondence between rights and duties the product of a coherent historical trajectory and deliberate strategy? Not at all. Citizenship is a symbol that came gradually to encompass pre-existing national patchworks of rights and duties, got intertwined with the parallel symbol of ‘nationality’ and turned into a basic status, that of “having rights to have rights” within a bounded space. The symbol over-emphasised the rights side of membership, but it always implied a second side, i.e. the duty to accept duties. 

It is certainly true that the substance of the citizenship package has been gradually extended to all legal residents (with the key exception of sympolitical participation rights). But as long as state boundaries remain a fact, the status of citizenship entails a vertical empowerment vis-à-vis territorial authorities which aliens or denizens do not have and through which citizen can define and redefine the rules of access and the content of the denizenship status itself. 

Even if ordinary people do not visualise this clearly, the EU is a bounded territorial collectivity. Although derivative of national citizenship, EU citizenship does confer novel isopolitical civil and social rights and their correlative duties as well as novel sympolitical rights through the European Parliament. As I have argued above, the large majority of citizens are ‘stayers’. They have to comply with one class of isopolitical duties (accepting mobile workers as equals in the labour market and welfare state) without de facto exercising the corresponding isopolitical rights. Their capacity to change this situation through sympolitical rule making has been curtailed domestically and is still weak supranationally. I do not share Hemerijck’s theory according to which EU citizenship was adopted to seal the internal market. Historical reconstructions show that the new provisions of the Maastricht Treaty (also) reflected the social and political strategy of EU building of leaders such as Jacques Delors. Whether by design or by failure, the fact is that rather than complementing national citizenship regimes, EU citizenship has ended up destabilising them. My proposals aim at a political rebalancing. In this perspective, I believe that a smart gradual strategy of soft dutification of EU citizenship, initially based on nudging, might have positive and virtuous political effects. Kuhn worries that such nudging would only activate those who are already in favour of the EU. So be it. My survey data show that the share of EU voters that do favour cross national or pan-European forms of solidarity exceeds the share of cosmopolitans [7].  Eurosceptics are extremely vocal, but their numbers oscillate between 15% and 30%, depending on the member state. Pro-EU voters are still a large majority (as recent elections, especially in France, have demonstrated), but this majority is silent and disoriented. Adding stuff to EU citizenship and some nudging for its dutitification could provide, precisely, a focus to coalesce around the Caring Europe agenda.


Conflicts and visions on the future of Europe

Time to conclude. My realist perspective is only loosely related to values. It rests on a Weberian value relation and then emphasises the centrality of instrumental political goods, which have to do with safeguarding “what is necessary to maintain democracy” (Bauböck) so that it can produce the final goods that free and equal citizens decide to pursue.  Do I have a personal normative conception about integration? Yes, I do, and it belongs to the same liberal egalitarian cluster of the explicit or implicit conceptions espoused by most of our commentators [8].  But I have chosen here to keep my reasoning at a meta-level. And at this levels normative conceptions are political ‘objects’ which aim at providing  a collective sense of purpose that can motivate citizens to belong together. A vibrant intellectual debate on ultimate purposes is very important for institution building and polity maintenance. EU building is a novel experiment in political unification of different national communities, undertaken within a (now) unfavourable historical constellation characterised by an overall de-freezing of the economic, social and cultural patterns of modernity. We perceive a pervasive and foundational change, a general “melting of all that was solid”, but we seem unable to define this change in positive terms rather than merely as an ambiguous contrast to the past (post-modernism, post-nationalism, post-democracy, post-materialism, post-capitalismetc.). Without ‘pros-eutopian’ (from the Greek pros, before us) visions of the future, we should not be surprised about the return of nostalgic and backward looking “retrotopias” (to use Zygmunt Bauman’s metaphor).

I mentioned above Schumpeter’s distinction between the ‘classical’ and the ‘other’ doctrine of democracy and I have argued that they should be seen as two sides of the same coin, the latter as a ‘vertical’ correction to the former. I now conclude by recommending an additional correction. Democratic participation and competition must be infused with values. Equal and free participation and proceduralised power struggles among elites only define the perimeters of a playing ground where substantive interests, ideas and values contend with each other. The emphasis on values (on the polytheistic fight among them) as a quintessential element of politics in the sense of Berufspolitik is a major legacy of Weber’s political theory, including his often misinterpreted theory of democracy. “Man would not have attained the possible unless time and again he had reached out for the impossible” is the famous Weberian motto concluding his speech on Politics as a Profession. As social scientists (normative and empirical) we can contribute to producing visions of the impossible. But the outreachers ought to be political actors: responsible, pros-eutopian and, I would add, also Euro-enthusiastic politicians. 



[1] M.Ferrera, The Boudaries of Welfare. European Integration and the New Spatial Politics of Social Protection. Oxford, Oxford University Press, 2005

[2] L. Van Middelaar, The Passage to Europe, How a Continent became Europe, New Haven, Yale University Press, 2013

[3] M. Ferrera, 'The Contentious Politics of Hospitality. Intra-EU mobility and social rights', in European Law Journal, published online on 25 May 2017.

[4] A. Giddens (ed), The Hampton Court Agenda: a Social Model for Europe, London, Policy Network, 2006.

[5] I have outlined and justified my own position on the European Social Union in The European Social Union: a missing but necessary 'political good', in F. Vandenbroucke, C. Barnard and G. Febaere,  (ed.), A European Social Union after the Crisis, Cambridge, Cambridge University Press.

[6] F. Scharpf, De-Constitutionalization and Majority Rule. A Democratic Vision for Europe. Cologne,  MPIfG Discussion Paper 16/14, 2016.

[7] M. Ferrera and A. Pellegata, Reconciling economic and social Europe. Report on the REScEU Survey, available at: http://www.resceu.eu/events-news/news/can-economic-and-social-europe-be-reconciled-citizens’-view-on-integration-and-solidarity.html

[8] M. Ferrera, 'Solidarity in Europe after the Crisis', in Constellations, Vol. 21, Issue 2, 2014, pp. 222–238.



Freedom of movement under attack: Is it worth defending as the core of EU citizenship?


Freedom of movement under attack: Is it worth defending as the core of EU citizenship?

By Floris de Witte (London School of Economics and Political Science)


Freedom of movement is under attack from different sides. It is under attack politically in different Member States due to its alleged effect on the sustainability of the welfare state; it is under attack legally by the CJEU’s retrenchment of the rights of the poorest of Europe’s citizens; and it is under attack conceptually by those scholars and politicians who wish to understand EU citizenship to be primarily about the connection between all Member State nationals and the EU rather than focusing on the rights of mobile citizens alone. In all these accounts, the main fault line that seems to be emerging is that between mobile and immobile citizens in the EU – a fault line that the EU struggles to internalise politically and that can be traced back directly to the right to free movement. 

Is there any reason to defend free movement as the core of EU citizenship? I think that there is more than one. Below, I will argue that EU citizenship should be primarily about free movement as a) it emancipates the individual from the nation state; b) it serves to recalibrate questions of justice and democracy in a more appropriate manner; and c) it lacks the ties to a homogenous political ‘community of fate’ that perpetuate significant exclusionary practices. For these reasons, free movement is the central thing that EU citizenship should be about: it is what makes EU citizenship distinctive from, and genuinely supplementary to, national citizenship.   

Free movement as emancipation

Free movement is often understood in terms of its economic costs and benefits to the Member States of the EU. But we see something very different when we change the lens through which we look at free movement from one that is preoccupied with its effect on states to one that looks at its effect on the individual. From the latter perspective, freedom of movement is primarily about exactly that: the freedom to move out of one’s own state and to choose a different type of life in a different type of place. Thus understood, free movement is an emancipatory force. It allows individuals to live their lives unencumbered by the limits that their place of birth imposes on them, and freedom of movement allows them to understand themselves (and the possible realisations of that self) in much more authentic terms. 

This freedom of movement allows an LGBT+ couple that lives in a country in which the legal, political, cultural or social conditions do not allow for meaningful recognition of their love to move to a more permissive environment. It allows a retired teacher from Middlesbrough to enjoy her pension in sunny Lanzarote, and it allows a Romanian IT-consultant to move to Lille to live with his Hungarian girlfriend who works as a nurse in Belgium. Freedom of movement allows Europe’s citizens to move for love, work, family, language, social or cultural reasons, or simply to be somewhere ‘else’. It is about liberating the individual from the possibilities, opportunities, prejudices, cultural and social norms or convention (or even weather) that exists in their ‘own’ country, and about making available realisations of life in other states that might much more closely fit with the individual’s own preferences. To turn this around, it also means limiting the capacity of states to force the individual to live her life in a particular fashion.

This emancipatory potential of free movement is not only realized through actual movement. It also has a reflexive virtue: it orients the individual’s visions of self-realisation and self-understanding outwards. The possibility of free movement allows for many different realisations and understandings of the self that may have been unavailable but for free movement. Freedom of movement, in other words, liberates not only the body but also the mind from the normative structures of the state. 

Free movement, as such, is to be defended normatively as it problematizes the domination that the nation state exerts over our choices, self-understanding and images of self-realisation. To put it as bluntly as possible, the nation state’s mode of social integration reduces the incredibly complex individual to a one-dimensional being: a national. We all have many meaningful relationships and ties of identification with different groups in society, based on our profession, sexual orientation, ethnicity, religion, residence, language group, hobbies, or sharing of certain social or cultural preferences (a football team, a mode of transport, a type of music, cuisine or mode of living). The nation state, however, essentially tells us that while those relationships and patterns of identification may matter to us privately, the only one that matters for us as public individuals is that of nationality. It is with nationals, after all, that we have to share our resources and that we have to discuss what is allowed or not in society. And it is the nation-state that can coerce us into (not) taking particular actions, that can criminalise certain behaviours, that can trivialise certain needs or that can prevent certain aspirations. As Amartya Sen explains, this “increasing tendency towards seeing people in terms of one dominant ‘identity’ (…) is not only an imposition of an external and arbitrary priority, but also the denial of an important liberty of a person who can decide on their respective loyalties to different groups [1]”.  

The first reason why freedom of movement ought to be defended as the core of EU citizenship, then, is that it enhances our capacity to understand ourselves and realise ourselves in a more authentic and genuine fashion. 

Free movement as a recalibration of justice and democracy

The second reason why free movement ought to be defended as the core of the relationship between the individual and the EU is because it makes us sensitive to practices of exclusion. The construction of EU citizenship, in particularly within the context of the rights to free movement and non-discrimination, has the potential to lead to more inclusive ways of thinking about what freedom, justice, equality and participation should mean in the EU. It also has, however, the potential to lead to more practices of exclusion. The fact that EU citizenship and free movement are not embedded in a sufficiently sophisticated, responsive and democratic institutional structure makes it very difficult for the EU to mediate the social conflict that practices of inclusion and exclusion produce, and to legitimise the choices made [2].

There are many different ways to approach and address these issues. In very general terms, the right to free movement and non-discrimination attached to EU citizenship can be understood to correct instances of injustice and promote the inclusion of outsiders: it makes national distributive systems sensitive to the need to incorporate EU migrants who contribute to the host state in an economic and social way. The Court’s case law, and its criteria of ‘a certain degree of integration’ or ‘real link to the host state society’ can be understood as mechanisms that serve to identify which migrants should have a right to access redistributive practices in the host state on account of the fact that they meet the conditions of reciprocity the sustain those welfare benefits. 

I will not here discuss precisely how EU law attempts to balance the incorporation of outsiders in domestic practices of sharing with the need to sustain the reciprocal or solidaristic nature of those practices (which presume that access is bounded). The wider point that I am trying to make is that free movement makes us sensitive to the structural processes of exclusion that the nation state perpetuates, and serves as an instrument to problematize these processes. Here, instead, I will touch very briefly on two of the most topical ways in which contemporary understandings of free movement and EU citizenship can be understood to produce instances of exclusion – which suggest that there is a need to defend free movement as the heart of EU citizenship. 

The first example is the ‘emergency brake’ that the UK has managed to secure in its renegotiation on the terms of its EU membership [3].  This should eventually allow for the exclusion of EU migrant workers from in-work benefits for (at most) the first four years of their presence in the UK. In the UK, this has been presented as an exercise in justice: it ought to create more opportunities for nationals on the job market, and to prevent payments from the public purse to individuals who have not sufficiently contributed to that same public purse. This argument has been accepted by the heads of state of the other Member States and the Commission despite the absence of empirical corroboration. In fact, the most elaborate studies suggest that the fiscal effects of free movement on the UK are probably positive, and certainly neutral at worst [4].  What we see here, then, is the problem if we understand freedom of movement as a luxury rather than an individual right at the heart of EU citizenship: it is prone to scapegoating and politicking, which are the exact forces that it is meant to combat. This is not to say that free movement cannot create pressures that produce exclusionary effects for national citizens (and which EU law ought to be sensitive to). It seems to me, however, first, that those pressures are primarily infrastructural (which cannot be scaled up sufficiently quick to accommodate access for all) and not of a financial nature, and second, that EU law’s understanding of the limits to free movement and non-discrimination offer sufficient guarantees to prevent such practices. The compatibility of the ‘emergency brake’ with the right of free movement is likely to be tested if the UK votes to remain in the EU, and we could place our fate in the Court to protect free movement and non-discrimination as being at the heart of the relationship between the individual and the EU. 

Unfortunately, it appears that the Court itself is not convinced of this. The recent Dano case offers a good example of how the Court is increasingly turning its back on understanding free movement to be a right attached to the ‘fundamental status’ of every EU citizen. In that case, the Court suggested that the right to basic social assistance mechanisms (as a corollary of the right to equal treatment tied to residence in a host state) is unavailable for those citizens who do not have ‘sufficient resources’ to take care of themselves. In a ruling that comes quite close to depicting Ms. Dano in racist terms as a citizen whose presence in Germany is of no functional use to German society, the Court changes the category of EU citizens that can realistically make use of the promise of free movement. In simple terms, Dano suggests that free movement is not for all Europeans. It is not a right attached to the ‘fundamental status of all EU citizens’, but rather a privilege that European playboys are allowed to make use of. Again, this judgment was celebrated throughout Europe as bringing about justice; as defending the welfare systems against the parasite that is the poor (or poorly-educated) fellow European. Instead, I would argue that it is about the perpetuation of exclusion of vulnerable citizens from the processes that serve to remedy those very vulnerabilities. It is a judgment that legally mandates the creation of a European underclass of vulnerable citizens who, because of their exercise of free movement, are neither politically represented nor materially protected from the most egregious forms of exclusion. This case shows why we need to defend free movement as a right at the core of EU citizenship: something that ought to be available under similar conditions for all nationals of the Member States, and not only for the privileged ones. 

Free movement as separating ‘the nation’ from ‘the state’

The third and final reason why we ought to defend free movement at the core of EU citizenship is because of the latter’s idiosyncratic structure. Unlike national forms of citizenship, EU citizenship is not linked to a ‘community of fate’ that reflects certain ethno-cultural ideas of a homogenous community, forged on the basis of a shared language, history, myths and ethnicity, and solidified through boundary closure, narrowly-defined membership groups and exclusion of outsiders. EU citizenship, instead, is a ‘stateless’ or ‘anchorless’ idea of belonging and community: it suggests that its subjects are part of something that is incipient, ill-defined, and diverse. Often, this is understood as the main weakness or source of illegitimacy of EU citizenship. I would argue that it is exactly its strength. 

The absence of a link between the institutional idea of EU citizenship and a specified ‘ethnos’ or the idea of a ‘nation’ is exactly what makes EU citizenship normatively appealing. Accounts of the ‘long history’ of European integration suggest that the inter-war experience and the Second World War identified the problems with parliamentary or national sovereignty. Very simply put: democracies premised on these ideals appeared not to be very good at remaining democratic. On this account, the creation of the EU was deliberately meant to constrain democratic externalities [5],  and particularly the capacity of states to enforce practices of internal exclusion or external aggression. In other words, EU law serves to foreclose the capacity of domestic democratic actors to commit democratic suicide. Usefully, this narrative proved appealing for Member States that acceded to the EU in the aftermath of periods of totalitarianism. This project of depoliticisation was massively helped by the role of law in the integration process. The scholarship on ‘integration through law’ suggests that law is both the agent and object of integration, and is used to push through the objectives of integration even in the presence of political objection on the national or supranational level. 

What has all of this to do with free movement and EU citizenship, though? Free movement is at the core of the objective of constrained democracy. The legally enforceable right to enter and exit spaces of state authority and the legally enforceable right to equal consideration in whichever space an individual finds him or herself, go a long way towards limiting the power of the state to internally exclude certain groups or antagonise their neighbours. It is free movement, in a sense, which disciplines the nation state, and ensures that its civic institutional structure does not fall in the traps of the ethnos within which it historically grew. In that sense, our ‘anchorless’ EU citizenship is the perfect institutional container for a new – less ethnic – way of thinking about the role of the individual in the EU [6].  And free movement is how this virtue is implemented. The third and final argument in defence of understanding free movement to be at the conceptual heart of EU citizenship, then, is that free movement is the perfect instrument for the implementation of the core normative promise of EU citizenship. 


The Treaty suggests that EU citizenship is to be ‘additional to’ national citizenship. This contribution has argued that the added value that EU citizenship can offer primarily lies in its connection to freedom of movement. Freedom of movement, on this view, is an instrument that liberates the individual’s mind and body from the domination that the nation state exerts over it; that reorients domestic processes of justice and democracy towards more inclusive practices; and that institutionalises an idea of civic belonging on a continent that has been plagued for a century by the consequences of ethnic ideas of belonging. For these reasons, free movement must be celebrated and defended as the core of EU citizenship, as a right that is available for all 500 million EU citizens, and as an idea that benefits all those citizens – whether they make use of it or not. 

[1] A. Sen, The Idea of Justice (Penguin 2010) 247.

[2] See, generally, F. De Witte, Justice in the EU: The Emergence of Transnational Solidarity (OUP 2015) 22-37.

[3] See European Council Conclusions (EUCO 1/16) 19-24, 34.

[4]C. Dustmann and T. Frattini, ‘The Fiscal Effects of Immigration to the UK’ (2014) 124 Economic Journal 563.

[5] The most recent contribution is J.W. Muller Contesting Democracy (Yale 2011).

[6] See, generally, L. Azoulai, E. Pataut and S. Barbou des Places (eds.) Ideas of the Person and Personhood in European Union Law (Hart 2016).



The Failure of Union Citizenship beyond the Single Market

By Daniel Thym (University of Konstanz)


Floris de Witte’s defence of free movement presents us with a decidedly non-economic vision of cross-border mobility. It is this normative dimension which connects his argument to broader debates on Union citizenship whose ‘core’ he considers to be free movement. His thinking builds upon the rich tradition of institutional practices and academic reconstruction that has highlighted the non-economic value of the original market freedoms ever since the late 1960s – the period when the EU legislature opted for generous implementing legislation on the basis of which the ECJ later advanced citizens’ rights in cases with purely corollary economic aspects. 

I accept this normative starting point and yet will highlight its limited reach nonetheless. De Witte concentrates on the potential of free movement in correcting outcomes at national level without connecting the evolution of citizens’ rights to constitutional trends at European level. However, such a broader outlook could help explain the volatile state of Union citizenship at this juncture. I will argue that restrictive tendencies appear as epitaphs of a Union losing self-confidence as a supranational polity, emphasising instead the continued significance of solidary political communities at national level. If we want Union citizenship to thrive, we have to move beyond a minimalist reading.

Correcting the Nation-State

I subscribe to De Witte’s defence of free movement as emancipation without hesitation, but want to ask: is that all? Much of the liberty he associates with intra-European mobility is guaranteed as a matter of domestic or international human rights law anyway, which, together with changing self-perceptions of Western societies, considerably extended the degree of private and public choice in recent decades. Gays and lesbians may move to the big cities in their home state to find (relative) freedom – and German pensioners can settle in my current hometown of Konstanz or other domestic cities known for their quality of life instead of relocating to Spain. To be sure, European rules extend our freedom geographically and in substance, but the surplus remains gradual instead of categorical.

The same can be said about his third contention on separating ‘the nation’ from ‘the state’. Here he subscribes to an essentially corrective vision of supranational citizenship. Again, I do not take issue with his analysis as a matter of principle, but wonder about the degree of normative value involved. Arguably, the separation between the nation and the state defended by De Witte is no longer a novelty for most (Western) European societies. Nationality law is a perfect prism to highlight changing self-perceptions: two decades ago, ethno-cultural foundations of national identity were pertinent in many Member States. Immigrants obtained certain rights, but their status could be described as a form of ‘denizenship’ which stopped short of full membership through the formal acquisition of nationality and equal participation in the public realm (1). Today, the picture looks different: some Member States moved towards ius soli and essentialist definitions of national identity are being supplanted by various degrees of civic-pluralistic identities (2). 

To be sure, European integration may have been instrumental in bringing about this adjustment through more than its rules on free movement. Such change also remains an ongoing challenge characterised by ups and downs and occasional backlashes. While it is well advanced across Western Europe (notwithstanding the surge of populist movements whose success can be rationalised, in part at least, as a reaction to social change), some countries in Central and Eastern Europe are still in need of similar metamorphoses, in which the corrective potential of European rules described by De Witte may play a beneficial role (as recent developments in Poland and Hungary illustrate). But this does not unmake the move towards inclusionary nationality laws and civic-pluralistic identities. If that is correct, the emancipatory dimension of transnational mobility remains limited. It may reinforce a trend whose dynamism, however, is not intrinsically linked to Union citizenship. 

Moreover, broader societal debates on the impact of immigration across Europe illustrate that the corrective reading of transnational mobility defended by De Witte remains mostly negative. It invites European societies to abandon essentialist self-perceptions, but does not contribute much to how the normative foundations of social cohesion should be construed instead. The EU’s vision of ‘a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’ (Article 2 TEU) or the ECHR’s standard invocation of ‘pluralism, tolerance and broadmindedness’ as hallmarks of a democratic society which are supposed to structure the proportionality assessment often remain hollow. That is why De Witte’s vision of free movement reinforcing emancipation at national level remains a thin normative account.

Access to Social Benefits as a Test Case

Equal access to social benefits has received much attention in scholarly treatises on Union citizenship over the years, but only recently has it caused widespread political frictions. One reason for the limited impact of the original equal treatment guarantee may have been that it concerned those who were engaged in some sort of economic activity. For such scenarios, the Court extended the range and vigour of equal treatment against restrictive national laws, but the principle itself was uncontroversial, since most Member States had embraced territoriality as the door-opener for work-related social benefits anyway. Moreover, free movement did not substitute national policy preferences with a supranational vision of social justice. Britain and Sweden had to treat equally Union citizens who were economically active, but this did not affect the distinct structure of their welfare state (3). Again, free movement rules reinforced a trend which took place anyway.  

Against this background, the central novelty of the original free movement provisions was not equal treatment of those engaged in economic activities, but access to the labour market. To this date, the central difference between a Polish and a Ukrainian national who wants to work in Amsterdam is not equal treatment once they have taken up work. The added value of Union citizenship is the right to be admitted to the labour market – a distinction fortified by Article 15 of the Charter of Fundamental Rights which guarantees equal working conditions to everyone, but reserves the right to seek employment in any Member State to Union citizens. 

That right to be economically active across the Union is firmly inscribed into the DNA of the European project, since it presents itself as one of the pillars of the single market. We may question the outer limits of corresponding equal treatment, such as in-work benefits for part-time workers or the level of child benefits for children living in another Member State, which feature prominently in the new deal the British government promotes in the run-up to the Brexit referendum. But such disputes about the fringes should not distract from the essentially economic rationale of equal treatment for those who are economically active, which De Witte himself proposed to reconstructed as an expression of a Durkheimian organic solidarity (4). The internal market provides the frame for this arrangement. Its pan-European reach remains largely uncontested.

In relation to citizens like Ms Dano the picture looks different. Their status transcends the single market and emanates directly from the rights attached to Union citizenship. Their reach had never been subject to a principled political consensus – as the emphasis on ‘limitations and conditions’ (Article 21.1 TFEU) in primary law illustrates in the same way as the compromise formulae enshrined in the Citizenship Directive 2004/38/EC (5). That is not to say that the Court was right to flatly deny equal treatment to citizens like Ms Dano: a different position could have been defended (6). All I say is that we cannot expect the single market case law to be extended to non-economic activities indefinitely, since the constitutional frame of reference differs. It builds upon the (vague) idea of political union of which generic free movement rights for the economically inactive were always an integral part (7). Arguably, it is this connection to political union which explains the failure of citizens’ rights beyond the single market.

Connecting to the Union as a Whole

Twenty years ago, the European Union could reasonably be considered a political union in the making. Union citizenship could be perceived, like direct elections to the European Parliament or the ill-fated Constitutional Treaty, as a building block of the EU constituting itself as a supranational political community based upon meaningful public discourse and a functioning ‘representative democracy’ (Article 10.1 TEU). The famous dictum of the Court that citizenship was ‘destined’ to be a fundamental status arguably hinted at this forward-looking aspiration. A vision of social justice embracing the fight against social exclusion, whose absence in the Dano judgment De Witte criticises, would undoubtedly have been an integral part of such supranational polity (see Article 34 Charter of Fundamental Rights). 

We all know that the state of the EU is a different one at this juncture. The confidence that some sort of political union would be forthcoming was seriously damaged after the failure of the Constitutional Treaty, as a result of the eurocrisis and regarding the surge of anti-European populism. That is why a continuation of the trend towards ever more citizens’ rights was no forgone conclusion. Indeed, the Dano judgment is not the only example in which the ECJ refrained from developing its vision of social justice: not assessing austerity measures in light of the Charter is another example (8). By deciding not to engage in such debates, the Court signalled that it would not develop a thick reading of citizens’ rights. This hands the initiative back into the domestic arena. National constitutional courts or the ECHR will ultimately have to decide the fate of Ms Dano (9). The ECJ abdicated responsibility in the same way as it handed questions of family unity in purely domestic situations back to national courts and the ECHR (10).

This leaves us with the overall conclusion that any fortification of citizens’ rights beyond the single market remains linked to broader constitutional trends. If we want the Court to employ citizens’ rights to foster a supranational vision of social justice, we arguably have to move beyond a minimalist reading of free movement as correcting unwelcome outcomes at national levels. What would be required, instead, is a vision of social justice for the Union as a whole, not only for those moving to other Member States.



(1) See Tomas Hammar, Democracy and the Nation-State. Aliens, Denizens and Citizens in a World of International Migration (Avebury, 1990).

(2) See Christian Joppke, Citizenship and Immigration (Polity Press, 2010), chs 2, 4.

(3) See Daniel Thym, ‘Towards “Real” Citizenship? The Judicial Construction of Union Citizenship and its Limits’, in: Maurice Adams et al. (eds), Judging Europe’s Judges. The Legitimacy of the Case Law of the European Court of Justice (Hart, 2013) 155-174.

(4) Cf. Floris de Witte, Justice in the EU. The Emergence of Transnational Solidarity (OUP, 2015). 

5) See Kay Hailbronner, ‘Union Citizenship and Access to Social Benefits’, CML Rev. 42 (2005), 1245 (1258-1264).

(6) See Daniel Thym, ‘The Elusive Limits of Solidarity. Residence Rights of and Social Benefits for Economically Inactive Union Citizens’, CML Rev. 52 (2015), 17-50.

(7) See Antje Wiener, Building Institutions. The Developing Practice of European Citizenship (Westview Press, 1998)

(8) See Augustín José Menéndez, ‘Which Citizenship? Whose Europe?—The Many Paradoxes of European Citizenship’, GLJ 15 (2014), 928-931.

(9) After the German Federal Social Court had granted Ms Dano (and some other Union citizens who are economically inactive) a right to social benefits on the basis of statutory rules, the Merkel government announced a change in the law, which would ultimately require the German Constitutional Court to decide whether Union citizens can be expected to return to their home state to obtain social benefits.

(10) Cf. ECJ, Dereci u.a., C-256/11, EU:C:2011:734, paras 70-74.



State Citizenship, EU Citizenship and Freedom of Movement

By Richard Bellamy (European University Institute and University College, London)



I agree with the two key premises of Floris de Witte’s ‘kick off’: namely, that 1) freedom of movement lies at the core of EU citizenship and is worth defending as such, and 2) that many of the attacks on it are at best misinformed, misguided and mistaken, at worst malign, mendacious, and motivated by prejudice and xenophobia.

However, I disagree with much of what he says in support of these positions. I think he confuses the moral case for some form of cosmopolitanism and the empirical reinforcement this gets in an interdependent world, on the one hand, with an argument for a fully fledged political and legal cosmopolitanism that looks to the ultimate demise of nation states as a necessary condition for justice, on the other. The first may offer normative and empirical support for a supranational Union of states along the lines of the EU, in which there is a status such as Union citizenship that offers free movement between the component polities. However, that need not imply a version of the second involving a teleological account of the EU’s development, such as de Witte offers, whereby individuals must cease to be members of nation states; democracy becomes in some way constrained by, or even substitutable by, a given conception of justice; and we need no longer conceive ourselves as members of a community of fate. What I want to suggest in this comment is that one can accept a broadly cosmopolitan moral and empirical case for free movement within the EU as both normatively compelling and of practical benefit, while disputing all three of his arguments for this position and maintaining the very statist perspective on each of the three issues that he seeks to challenge.

Let me start by briefly setting out (space constraints mean I cannot here defend, though I have attempted to do so elsewhere (1)) what might be called a cosmopolitan statist perspective on the EU. I shall then deploy this perspective to comment on Floris de Witte’s three arguments, noting in each case how free movement can be defended while stopping short of the view he advocates. 

Cosmopolitan Statism, EU Citizenship and Freedom of Movement

On the account I adopt, the most normatively appealing and empirically plausible way of conceiving the EU is as a republic of democratic nation states. The argument is broadly Kantian, tweaked to accommodate contemporary concerns and conditions. It is both statist and cosmopolitan, and orientated around the value of non-domination. It is statist in arguing that to institute justice among individuals who reasonably disagree about its nature and application requires the establishment of a sovereign authority to govern the relations of those who share a social space. Yet if that authority is to be non-dominating and not itself a source of injustice, it must be under the equal influence and control of those to whom it applies. Therefore, justice implies the establishment of both a state and a democratic regime within it. Just relations can only pertain among citizens. However, in an interconnected world it becomes possible not only for states and their citizens to dominate other states and their citizens, both directly and indirectly, but also for various non-state agents and agencies, such as corporations and terrorist groups, to do so. That possibility increases when not all states operate democratically, with such non-democratic states not only dominating their own citizens, but also more likely to seek to dominate the citizens of other states too and to provide a haven for non-state agents and agencies to do so as well. Meanwhile, citizens of all states have various reasons to move freely between states– some to escape dominating or failing regimes, others to trade, find employment and for leisure, among other motives. As a result, states have good cause to cooperate and establish supranational legal and political structures to prevent their mutual domination, help them support non-dominating regimes in states where they do not as yet exist or are under threat, tackle domination from other non-state sources, and to facilitate free movement of citizens between these states in ways that avoid discrimination or domination, either of or by them. My claim is that the EU can be regarded as the closest we have to such a republican system of states at present.

Of course, I am not suggesting either that the EU perfectly meets the criteria of such a structure or that all the actors involved by any means conceive it in these terms (2). I merely contend that it is a plausible way of conceiving it and one that has normative appeal as a guide to how it should and could develop. On this view, a commitment to the role of democratic states as offering a context for non-dominating relations among citizens requires as a matter of consistency that states act towards other states and their citizens on the basis of certain cosmopolitan norms, not least through establishing structures such as the Council of Europe and the EU that seek to reduce non-domination between, within and across states in the four ways mentioned above. In this regard, the current call among certain Conservative politicians in Britain for Brexit and/or withdrawal from the ECHR must be regarded as either incoherent – at odds with their professed desire to defend the very idea of democratic statehood, or insincere – either done for political advantage or because they are not that attached to democracy in the first place.

I make these points to indicate how one can be opposed to the populist nationalist rhetoric of those critical of the very idea of the EU and of free movement within it, without necessarily being opposed to the idea of democratic statehood. On the contrary, one can regard the EU as existing to support democratic statehood in a variety of ways rather than as supplanting and substituting for it. From this perspective, the linkage of Union citizenship to member state citizenship is not a transitionary feature destined to whither away but inherent to its very nature. Its purpose is not to supplant but to supplement member state citizenship in two main ways: first, it allows free movement between states in ways that involve showing equal concern and respect to the citizenship regimes of both the host state and that state of origin; second, it gives citizens a direct say in the supranational structures to ensure they show them equal concern and respect as citizens of distinct member states. As we shall see, this is very different to the characterisation that Floris de Witte offers.

de Witte’s Three Arguments

de Witte”s  first argument favouring free movement is that it emancipates the individual from the nation state. He offers rather different instances of this emancipation. One of his examples, that of an LGBT couple denied recognition in their country of birth, concerns a denial of human rights within a given state. The others, such as the retired teacher from Middlesbrough seeking to enjoy her pension in Lanzarote, relate to various personal choices that will be facilitated through freedom of movement between states, some involving more significant interests than others. He claims that emphasis on nationality only provides public recognition to individuals on the basis of a single dimension that ignores or even suppresses the other dimensions of people’s lives – as he puts it, in a statement I find extraordinary, ‘the nation state’s mode of social integration reduces the incredibly complex individual to a one-dimensional being.’ This hyperbole grossly mischaracterises the role of nationality within the public cultures of the member states, all of which are constitutional democracies. It is not as if the retired teacher is obliged by UK law to only spend her pension on holidaying in an approved British seaside resort with suitably grey weather and wearing a hat displaying the Union Jack. The legal systems of most member states uphold rights to as diverse a range of life style choices as are to be found across the EU, even if all states fall short in certain respects, some more egregiously than others. Yet all these rights require a political infrastructure to determine and enforce them. This infrastructure involves citizens of any polity in a complex set of mutual obligations, that in the case of securing many rights – such as pensions – require a degree of solidarity among them. Emancipation from these sorts of bonds constitutes a form of free-riding that is ultimately self-defeating for all but a privileged few. For these very bonds make the rights individuals claim possible in the first place (3). The retired teacher would not wish to go to Lanzarote if such an infrastructure was not in place that ensured a system of property rights sufficient to allow her holiday home to be built and uphold her civil rights to personal security once there, and would not have a pension enabling her to do so in the first place if she had not worked under a similar regime in the UK. Any system of free movement, therefore, has to be such that it respects and upholds the two systems of citizenship rights that make her movement from one to the other possible in the first place. 

His second argument for free movement, as a recalibration of justice and democracy, is in this respect more nuanced in that it appears, initially at least, to recognize that there is a need for reciprocity both between citizenship regimes and among those who participate within any one of them. As it happens, I agree with him that there is no evidence that the UK would be justified in applying an ‘emergency brake’. But none of what he says here seems to justify the statement that freedom of movement serves ‘to recalibrate questions of justice and democracy in a more appropriate manner’, a position that is hardly addressed at all. At best, it suggests that appropriate mechanisms do not exist for a constructive democratic dialogue that allows for a clear discussion of how we might balance reciprocity between citizenship regimes and reciprocity within them in an equitable and sustainable way. So far that has been a matter for the CJEU looking at particular cases, on the one hand, and intergovernmental agreements, on the other. Yet both seem somewhat ad hoc and insufficiently connected to citizens as a body, which perhaps explains the general alienation from the decisions of both bodies (4).

His third argument restates the first in a neo-Habermasian manner as separating ‘nation’ and ‘state’, because EU citizenship ‘lacks the ties to a homogenous political ‘community of fate’ that perpetuate significant exclusionary practices’. Again the element of truth in this statement gets lost through exaggeration. Floris de Witte suggests that national citizenship within the member states ‘is linked to a ‘community of fate’ that reflects certain ethno-cultural ideas of a homogenous community’. As I observed above, though, what Habermas called ‘constitutional patriotism’ forms the norm across the EU. All the member states have citizenship regimes involving elements of ‘ius soli’ as well as ‘ius sanguinis’ and most have citizenries with considerable cultural diversity and mixed blood. Sadly, and worryingly, there are parties of the extreme right everywhere that are motivated by ‘ethno-cultural ideas of a homogenous community’, and in a very few countries these parties are in government. But such sentiments are not intrinsic to the very idea of a nation state. EU citizenship has no tie to any notion of nationality because that is not its function. It exists to facilitate inter-nationality and to some degree multi-nationality, but not the demise of any sense of nationality whatsoever. As I noted, a sense of political solidarity is important for the upholding of rights that we can only possess as members of a political community. The role that EU citizenship and free movement should play is in heightening our awareness of and respect for such solidarity within all the states of the Union.


As I said at the beginning, I fully agree with Floris de Witte’s concern at the attacks on the EU currently coming from the populist right, a challenge epitomized by, but unfortunately not restricted to, the Brexit campaign in the UK. However, I doubt that the best way to answer their misleading rhetoric is to make rhetorical counter-claims that are the mirror image of theirs. Rather, it is to show that their views are largely without foundation and that far from undermining national citizenship, EU citizenship and free movement defend it in the context of the normative and empirical challenges of an inter-dependent world.



(1) Among other pieces, see Richard Bellamy, `An Ever Closer Union of Peoples: Republican Intergovernmentalism, Demoi-cracy and Representation in the EU’, Journal of European Integration 35: 5 (2013), 499-516, ‘Between Cosmopolis and Community: Justice and Legitimacy in A European Union of Peoples’ in S. Tierney (ed), Nationalism and Globalisation: New Settings, New Challenges (Hart, 2015), Ch 10, 207-232, and (with Sandra Kröger), ‘Beyond a Constraining Dissensus: The Role of National Parliaments in Domesticating and Normalising the Politicization of European Integration’, Comparative European Politics 14.2 (2016) 131-53

(2) For a critique of current EU economic and monetary policies from this perspective, see Richard Bellamy and Albert Weale, ‘Political Legitimacy and European Monetary Union: Contracts, Constitutionalism and the Normative Logic of Two-Level Games’, Journal of European Public Policy 22.2 (2015) 257-74.

(3) I’ve criticised a somewhat similar argument to de Witte’s by Dimitry  Kochenov in Richard Bellamy, ‘A Duty Free Europe? What’s Wrong with Kochenov’s Account of EU Citizenship Rights’, European Law Review 21.4 (2015) 558-65

(4) On the ‘democratic disconnect’ in EU policy making, see Richard Bellamy and Sandra Kröger, ' The Politicization of European Integration: National Parliaments and the Democratic Disconnect ', Comparative European Politics 14.2 (2016) 125-30


Free Movement as a Means of Subject-Formation: Defending a More Relational Approach to EU Citizenship

by Päivi Johanna Neuvonen (University of Leicester)


Should EU citizenship ‘be primarily about free movement’? According to Floris de Witte, free movement as the core of EU citizenship can contribute to emancipation, justice, and the distinction between the ‘nation’ and the ‘state’ within the EU. I share his view that these objectives ought to be important to European integration in general and to EU citizenship in particular. But I am not fully convinced that free movement as ‘the central thing that EU citizenship should be about’ will automatically result in more just and emancipated relations between EU citizens. I would therefore like to advance a more relational understanding of subjectivity in this context. 

Floris de Witte suggests that free movement as an ‘emancipatory force’ can make the citizens of the European Union more ‘sensitive to the structural process of exclusion that the nation state perpetuates’. For him, free movement can be seen as ‘an instrument to problematize these processes’. It nevertheless seems important to consider on what basis free movement would problematize the potentially exclusionary practices within the nation state. Although I am positive about the suggestion that free movement ‘orients the individual’s visions of self-realisation and self-understanding outwards’, I have some reservations about the scope and nature of this emancipatory re-orientation through free movement. 

The interesting question is what the term ‘outwards’ means in the context of EU citizens’ free movement.  Does the idea of transnational ‘self-realisation’ recognise citizenship as an inherently relational form of human interaction and agency, or does it primarily advance an ‘atomistic’ or ‘unencumbered’ view of the self? In so far as the normative ideal of free movement is based on the mere objective of individual self-realisation, the danger is that it will foster a narrow and individualistic view of subjectivity for the purposes of European integration. The ‘subject’ that emerges from the exercise of free movement may easily appear as self-centered, rather than as capable of encountering the ‘Other’ as part of its own emancipation (1). 

According to Floris de Witte, free movement can advance a ‘more inclusive way of thinking about what freedom, justice, equality and participation should mean in the EU’. He also writes that free movement as the core of EU citizenship ‘benefits all those citizens – whether they make use of it or not’. Here we encounter the question of whether all EU citizens are able to enjoy the right to free movement. I agree with Daniel Thym’s point that, if we take seriously the argument that free movement ‘ought to be available under similar conditions for all nationals of the Member States’, a more comprehensive account of social justice is still needed for the EU (2). The idea of free movement may indeed be central to actualising the principles of transnational justice. But it will then be seen as a tool for justice, rather than as an end of EU citizenship.

It seems difficult to justify the non-economic right to free movement and residence without first accepting a more independent equality objective for EU citizenship. Any reference to EU citizenship as an equal status nevertheless raises a set of difficult questions about belonging and solidarity. According to Richard Bellamy, EU citizenship must not bring about the demise of the ‘political infrastructure’ that advances the degree of solidarity that is arguably required for securing many rights within the Member States. Bellamy’s account holds that just relations between citizens can be understood as ‘relations of those who share a social space’. But his statist conclusion becomes less self-evident if we assume that ‘a social space’ can also be constructed transnationally. If equality is understood as a ‘normative ideal of human relations’ (3), the important question for EU citizenship, as well as for the existence of the EU as an ‘emergent polity’ (4), is whether it is possible to construct meaningful relations for the purposes of equal treatment outside the context of ex ante belonging.

It seems to me that the argument of self-realisation through free movement does not yet adequately address the relational potential of EU citizenship. In his contribution, Floris de Witte refers to ‘a “stateless” or “anchorless” idea of belonging and community’ as the ‘strength’ of EU citizenship. Although his argument of free movement as an ‘emancipatory force’ seeks to challenge ‘communitarian ties’, I hope it would also say more about whether those relationships that constitute a meaningful ‘social space’ can be transformed and redefined through European integration – without just replicating the exclusionary ‘community of fate’ transnationally? If this question can only be answered in the negative, those authors who are concerned about the harmful implications of EU citizenship for political and social emancipation may have an important point to make (5). However, I have argued elsewhere that EU citizens’ equal treatment is closely connected to the gradual process of transnational subject-formation, the outcome of which may ultimately justify a more positive answer to the above question of meaningful relations (6). 

In sum, free movement can have a central role in constructing transnational political and legal subjectivity. But I would see it as one method of advancing more just and equal relations between EU citizens, rather than as the only objective of EU citizenship. Floris de Witte suggests that ‘the added value that EU citizenship can offer primarily lies in its connection to free movement’. However, if the added value of EU citizenship is ultimately connected to how we respond to otherness within the EU, free movement is not the only context in which EU citizens can exercise their subjectivity as EU citizens in a meaningful way. At the end of his forum post, de Witte, too, seems to come close to this view when he writes that free movement is how the ‘virtue’ of ‘a new – less ethnic – way of thinking about the role of the individual in the EU’ is ‘implemented’.



(1) For further discussion, see Päivi J. Neuvonen, Equal Citizenship and Its Limits in EU Law: We the Burden (Hart 2016).

(2) For further discussion see e.g. Dimitry Kochenov, Graínne de Búrca, and Andrew Williams (eds), Europe’s Justice Deficit (Hart 2015). 

(3) E.g. Samuel Scheffler, Equality and Tradition: Questions of Value in Moral and Political Theory (OUP 2007) 234.

(4) E.g. Antje Wiener, ‘Constitution-making and Citizenship Practice – Bridging the Democracy Gap in the EU?’ (1997) 35 Journal of Common Market Studies 595, 596. 

(5) E.g. Alexander Somek, The Cosmopolitan Constitution (OUP 2014) 160-61. 

(6) Päivi J. Neuvonen, Equal Citizenship and Its Limits in EU Law: We the Burden (Hart 2016).


Free Movement Emancipates, but what a Freedom this is?

By Vesco Paskalev (University of Hull)


I must start my response to Floris de Witte with a personal note – I am a Bulgarian national, living and working in Britain. As such, I am strongly attracted by his argument that sees free movement as the core of EU citizenship aimed at extending individual liberties. Indeed, my moving away from Bulgaria was an act of emancipation from the perennially corrupt and increasingly fascist country where I was born. Contrary to what Daniel Thym and Richard Bellamy argue, the Member States, while nominally democratic, do differ in their respect for fundamental rights of their citizens, and the professed ambitions of the current Hungarian prime minister to build an illiberal state does not seem to suggest that convergence towards the highest democratic standards is forthcoming.

Indeed, freedom of movement is emancipatory in a number of senses. On a conceptual level, EU citizenship liberates everyone: for centuries contractarian theories have claimed that people who do not leave their country of residence can be seen as consenting to its authority. While until recently the exit option has been only putative, now EU citizenship allows us to conceive those who stay as accepting state authority voluntarily. Certainly, EU citizenship should be the dream of libertarians – in a marketplace of governments you can shop around and chose the one which is freer, or perhaps the one which is best tailored to your personal taste.  EU citizenship is emancipatory also in pragmatic terms (one may call this argument neoliberal) – the fear of possible mass exit of citizens (a.k.a. workforce, taxpayers, electorate) may deter governments from abusing them. All in all, if we equate freedom with individual pursuit of happiness in a social context that is taken for granted, it is difficult to argue against De Witte. However, it is not so on a more robust, Arendtian understanding of freedom as equal participation in a self-governing community, which free movement tends to erode. 

Certainly, De Witte (and all of the previous contributors) do not understand freedom negatively. Indeed free movement may promote certain positive aspects of freedom. For example, De Witte correctly argues that free movement ‘liberates not only the body but also the mind from the normative structures of the state.’ The Brexit referendum provides a wonderful empirical confirmation of this point. Opinion polls suggest that while older Britons are clinging on antiquated ideas about sovereignty, the younger generation – born as EU citizens and in conditions of widespread mobility – are very much at ease with joint decision-making and are more likely to see the Union as empowering rather than crippling their own country (1). There is no similar evidence for the attitudes of older Britons living in Europe, but it is plausible to expect some similarity between the views of the people who actually move and of those who are born with the right to (2). There is ‘reflexive virtue’ to be gained from free movement indeed. 

Such collateral benefits of free movement notwithstanding, civic virtue is ill served by free movement and it is hardly surprising that Richard Bellamy disagrees with De Witte. On republican accounts citizenship is relational and European mobility by definition loosens the link between citizens and their state. Even in the age of Ryanair and Skype the opportunities of the external citizens to participate in the democratic life of their home state are significantly reduced. Indeed, in most cases they retain the right to vote, and its exercise abroad is often – but not always – facilitated by postal, proxy and e-voting. But democracy is so much more than the ballot box! Citizens who do not move can go on rallies, volunteer for various causes, join political organisations, speak in public or engage in community initiatives. One need not subscribe to Pierre Rosanvallon’s concept of counter-democracy (3) to agree that all this is part and parcel of any democracy. Thus, on the more robust understanding of freedom, which encompasses equal opportunity for participation in the collective system of governance, free movement inevitably reduces freedom. The fact that the mobile citizens have moved out freely may satisfy contractarians but not civic republicans. As long as the link with the home state is not broken completely – which may happen eventually – the freedom of the external citizens is limited in this sense. 

Now, this attenuated freedom might be normatively satisfactory as the stake of the external citizens in their country of origin is decreased, too (4). And of course, along with the freedom to move, the EU citizens now have – uniquely - extensive rights to participate in the democratic governance of the EU itself, which remain unaffected by their movement. Further to this, from day one EU citizens have enjoyed significant rights to participate in the political process of the host state. Apart from the electoral franchise, the rights of participation they have there, albeit limited, roughly correspond to the rights which are difficult to exercise from a distance in the home state. It might appear that freedom – even republican freedom – lost equals freedom gained. The problem is that in practice the external citizens are far less likely to exercise the rights they have in the host state than they would exercise equivalent rights in their state of origin. While your ability to attend a rally ceases on the day you have left the country, it is highly unlikely that you would participate in another rally on the day you arrived in your new country of residence. Notwithstanding the legal rights the Treaties will give, there is an inevitable lag before a mobile citizen integrates in the political process of the host state to the degree he or she was integrated in the home state. For this period – and it can be very long – the mobile citizens are losing a significant aspect of their freedom due to their movement.

This may all appear trivial. Indeed, reality rarely conforms fully to our normative expectations; even in the simplest case of national voting not every single citizen has effective and equal opportunity to vote and we are still satisfied when the overwhelming majority does. As long as only about 15 (out of 508) million EU citizens (5) have actually moved one may be right not to lose much sleep over the impact on democracy in the EU. The problem is one of aggregation. Republican freedom, and democracy in general, depend on a critical number of citizens who do participate actively in the political process. When fewer people participate – in voting and in the informal modes of contestation – the robustness of freedom decreases for all. Indeed, one of the main reasons for the democratic deficit of the EU is alleged to be the low turnout in elections for the European Parliament. This is the darker side of free movement. Notwithstanding its apparent emancipatory effect for the individual citizens – which may well outweigh what is lost in terms of non-participation – it tends to decrease, rather than increase republican freedom in Europe. 



(1) A YouGov poll found that the intergenerational gap is immense “73 per cent of those aged between 18-29 want to remain in the EU, while 63 per cent of those aged over 60 want to leave”, The Telegraph, 12 May 2016, available at http://www.telegraph.co.uk/news/2016/03/21/eu-referendum-who-in-britain-wants-to-leave-and-who-wants-to-rem/.

(2) Some anecdotal evidence available in Paxman goes to Brussels: Who really rules us? BBC Documentary, first shown 19 May 2016, available at http://www.bbc.co.uk/iplayer/episode/b07c6n58/paxman-in-brussels-who-really-rules-us

(3) Pierre Rosanvallon, Counter-Democracy: Politics in an Age of Distrust (Cambridge University Press 2008).

(4) For a discussion see Rainer Bauböck, Stakeholder Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting, 75 Fordham L. Rev. 2393 (2007), available at http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4257&context=flr 

(5) Eurostat, see data available at http://ec.europa.eu/eurostat/statistics-explained/index.php/Migration_and_migrant_population_statistics



Free Movement and EU Citizenship from the Perspective of Intra-European Mobility

By Saara Koikkalainen (University of Lapland)


In his kickoff text, Floris de Witte argues that the value of free movement lies in its capacity to emancipate the individual from the nation state, to recalibrate questions of justice and democracy, and to sever ties to a homogenous political ‘community of fate’. My contribution builds on empirical research on intra-European mobility and elaborates on his first claim on emancipation. I offer two factors to support my interpretation of the strong link between free movement and EU citizenship: 1) the development of the very concept of European citizenship is at least partly the result of a longer history of free movement and 2) the concrete advantages of EU citizenship are strongly linked to free movement. I finish with the conclusion that free movement makes EU real also for those Europeans who have not exercised their right to move. As de Witte says: “Freedom of movement, in other words, liberates not only the body but also the mind from the normative structures of the state.“ 

The history of free movement and EU citizenship 

The foundations of free movement date back to the 1950s and the Treaty establishing the European Coal and Steel Community (ECSC), where the cross-border movement of coal and steel industry workers was to be eased to aid the growing post-war economies. The EEC-Treaty extended free movement rights to workers in other industries, with the exception of the public sector, and these rights were codified in 1968 for the workers from the six original Member States. Since the 1970s, the European Court of Justice has played a fundamental role in widening the scope of free movement, as ordinary Europeans have been active in testing its boundaries in court, thus gradually extending the right of free movement to persons. The process culminated with the introduction of European citizenship in the Maastricht Treaty in 1992 where the right was extended to citizens (1).

While free movement was originally based on an economic rationale and the desire to provide a flexible workforce for the industry, it has developed into a civic right that might have been impossible to envision without the preceding decades of mobility. The right is also highly valued by the Europeans themselves: in the Eurobarometer surveys (2), freedom of movement consistently ranks high among the things that Europeans value in the EU. In the autumn of 2015, 78 % of the respondents supported free movement, even though differences among countries were significant (94 % support in Latvia and 92% in Estonia, while only 64 % in the UK and 66 % in Austria). Free movement is also routinely listed as the most positive or the second most positive result of the EU along with “peace among the EU member states”. Therefore, while issues such as access to social security and transferability of pensions across borders are still problematic, it is clear that free movement is, according to the Europeans themselves, at the core of European citizenship. 

The value of EU citizenship is linked with free movement

Europeans take advantage of free movement as students, trainees, professionals, family members, retirees, and workers of different skills and educational backgrounds. Not all are moving for life, as many choose to live abroad temporarily or seasonally or engage in various cross-border activities (3). In response to de Witte, Daniel Thym writes that while he understands the value of free movement for the individual, he also sees the limitations of de Witte’s argument: “European rules extend our freedom geographically and in substance, but the surplus remains gradual instead of categorical.” Thym downplays the exceptionality of a situation where a German pensioner, for example, is free to settle in Spain, instead of just relocating to a more pleasant environment within Germany. However, along with others engaged in research in intra-European mobility, I argue that those who exercise their right to free movement are pioneers of European integration, whose lives and actions impact both the countries of origin and destination as well as the socio-cultural construction of Europe in a multitude of different ways (4).

In Richard Bellamy’s view, EU citizenship does not undermine national citizenship but rather defends it in the “context of the normative and empirical challenges of an inter-dependent world.” Yet when examining EU citizenship from the viewpoint of the intra-European migrant, I am tempted to agree with de Witte that it is “distinct from, and genuinely supplementary to, national citizenship”. Namely, the extensive rights granted by EU citizenship have made adopting the (legal) citizenship of the country of destination largely unnecessary, and for Europeans the value of citizenship acquisition is clearly lower than for third-country nationals wishing to legally settle within the EU. In 2013, for example, in twelve EU member states at least nine out of ten persons who were granted citizenship were non-EU citizens while only in Hungary and Luxembourg EU-migrants were in the majority (5). There is hardly any other circumstance where EU citizenship would have such a manifest impact on the lived experience of an individual than the possibility of being a legal, long-term resident of a country with minimal pressures to naturalisation.

Imaginary horizons and cognitive migration

Free movement is at the core of EU citizenship also because it opens horizons for Europeans who have not moved abroad, but may have seriously considered the matter, plan to do so in the future or see mobility as an option for their children. The imagination of a potential future involving international migration is a way of making Europe or the EU seem real in the mind of an individual (6). It relies on a process we have called cognitive migration where the mind may travel multiple times before the actual bodily move takes place (7). In the Flash Eurobarometer of spring 2016 four in five respondents were aware of their mobility rights as European citizens (8), so the option is widely known among ordinary Europeans. The impact of such a high share of individuals potentially imagining futures that transcend national borders should not be underestimated as a factor influencing what EU citizenship currently is and what it will be in the future. 



(1) E.g. Saara Koikkalainen, 'Free movement in Europe: Past and Present'. Migration Information Source, April 2011. Washington, DC: Migration Policy Institute. www.migrationinformation.org/Feature/display.cfm?ID=836.

(2) Standard Eurobarometer 84, 2015, EC, DG for Communication, Autumn 2015. First results. http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/index#p=1&instruments=STANDARD

(3) E.g. Adrian Favell, Eurostars and Eurocities: Free Movement and Mobility in an Integrating Europe (Oxford: Blackwell, 2008); R.King,  'Towards a new map of European migration', International Journal of Population Geography 8 (2002), 89-106; EUCROSS, 'The Europeanisation of Everyday Life: Cross-Border Practices and Transnational Identifications Among EU and Third-Country Citizens', Final Report, 2014. www.eucross.eu/

(4) Ettore Recchi and Adrian Favell, Pioneers of European integration. Citizenship and mobility in the EU (Cheltenham: Edward Elgar, 2009). 

(5) Eurostat, Acquisition of citizenship statistics. Eurostat Statics Explained (July 2015). http://ec.europa.eu/eurostat/statistics-explained/index.php/Acquisition_of_citizenship_statistics

(6) E.Castano, 'European identity: A social-psychological perspective', in R.K. Herrmann, T. Risse & M.B. Brewer (eds.), Transnational identities: Becoming European in the EU (Oxford: Rowman & Littlefield, 2004) 40-58.

(7) Saara Koikkalainen & D. Kyle, 'Imagining Mobility: The Prospective Cognition Question in Migration Research', Journal of Ethnic and Migration Studies (2015). Taylor & Francis Online (October 7th) doi: 10.1080/1369183X.2015.1111133

(8) Flash Eurobarometer 430 2016, EC, DG for Justice and Consumers & DG for Communication. http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/index#p=1&instruments=FLASH



The New Cleavage Between Mobile and Immobile Europeans

By Rainer Bauböck (European University Institute)


The Brexit vote on 23 June 2016 has cast a long and dark shadow over our debate on free movement and the future of EU citizenship. At several points in the past, the European project has experienced periods of crisis or stagnation. But now is the first time that it seems to be going into reverse gear with two possible outcomes: the EU losing one of its largest member states or a process of disintegration that could affect the Union as a whole. 

The Brexit referendum was not inevitable. It was a political gamble by David Cameron to overcome a split in the Tory Party. After the vote the attitude of political irresponsibility that caused this mess in the first place has been spreading like a contagious disease across the political spectrum, with the most prominent Leave campaigners refusing to take responsibility for the disastrous consequences of their victory and the lukewarm Remainers like Jeremy Corbyn incapable of realizing the historic dimensions of their failure. Brexit was not thus British destiny but a contingent outcome triggered by an extraordinary lack of responsible political leadership. Yet this does not mean that there is no need for grasping the deeper forces that made this result possible and that are in no way uniquely British. 

Floris de Witte’s spirited defence of free movement focuses on its contribution to individual liberty, to cosmopolitan conceptions of justice and democracy and to overcoming exclusionary national communities of fate. I broadly agree. But there is something important missing in his story. What he does not speak about is the reactionary backlash against intra-EU mobility that threatens now to determine the outcome of votes not only in Britain and could sweep right wing populist parties into power in several continental member states. While the Remain campaign focused on the economic folly of Brexit, the Leavers won the battle by mobilising popular resistance against free movement rights of EU citizens.

Many post-referendum analyses agree that there is a new political cleavage in Europe that can no longer be reduced to the traditional divide between left and right and that is most strongly articulated through citizens’ attitudes towards European integration. The social characteristics of populations on either side of this divide are everywhere the same: young versus old, high versus low education, urban versus rural, and – less universally so – female versus male (1). Yet there is one further characteristic that tends to be overlooked and that is causally connected with political stances on free movement. Mobile citizens tend to vote for pro-European parties or policies and immobile ones for anti-European ones. One of the most striking charts published by the Financial Times after the Brexit vote shows a very strong positive correlation between the percentage of local residents who did not hold a passport in 2014 – and thus were unlikely to have travelled abroad – and the share of the Brexit vote (2). It seems we are witnessing a political revolt of immobile against mobile Europeans. 

This may seem an odd diagnosis given that EUROSTAT data show less than 4% of EU citizens currently residing in another member state for more than 12 months. But, as Saara Koikkalainen argues in her contribution and as Ettore Recchi and Justyna Salamonska show in a recent survey in seven EU countries, the numbers of mobile populations are much larger if one counts those with some lifetime experience of intra-EU mobility and includes transnational cognitive and network mobility. The EUCROSS study finds 13% who have lived for more than 3 months in another European state and slightly more than 50% who communicate regularly with family and friends across European borders, who have visited another European country in the last 24 months or who watch TV in a language other than their native one or the official one of their country of residence (3). Theresa Kuhn has shown that such individual experiences of transnationalism shape positive attitudes towards European integration but that this effect is social stratified. Conversely, the absence of transnational activities is likely to lead to perceptions of negative externalities of intra-EU mobility and negative attitudes towards European integration (4).  

Traditional cleavages along class, religious or ethno-linguistic fault-lines divided the political spaces of nation-states into distinct segments who lived either in separate parts of the state territory or in separate life-worlds. These divides could be either bridged through consociational power-sharing between parties representing the different sections or eroded through fostering geographic and social mobility across the divides. The new European cleavage is different because of divergent political spaces and time horizons. Mobile citizens regard Europe as their emerging space of opportunity and increasingly also of identity, whereas the immobile ones look back to the time when closed nation-states provided comprehensive social protection. 

Floris de Witte shares the diagnosis: ‘The main fault line that seems to be emerging is that between mobile and immobile citizens in the EU’. But he is not interested in bridging the cleavage. Instead he criticises ‘those scholars and politicians who wish to understand EU citizenship to be primarily about the connection between all Member State nationals and the EU rather than focusing on the rights of mobile citizens alone’. This is the wrong response to the crisis. As long as European citizenship is nearly exclusively about free movement, immobile Europeans will not perceive it as a value and as an important aspect of their identity. I agree with Daniel Thym that what is needed to win this battle is ‘a vision of social justice for the Union as a whole, not only for those moving to other Member States’.

For de Witte, ‘[t]he scholarship on ‘integration through law’ suggests that law is both the agent and object of integration, and is used to push through the objectives of integration even in the presence of political objection on the national or supranational level’. But today, this seems like the strategy of generals who always fight the last war. The battle for freedom of movement and European integration is no longer fought primarily in courts where individual rights can trump majority preferences; it is increasingly fought in polling stations, parliaments and the mass media. In order to survive, European integration through law will have to be complemented with integration through democracy, by winning the hearts and minds not only of mobile Europeans, but of immobile ones as well. 



(1) The gender gap was especially dramatic in the recent Austrian presidential elections: On 22 May, 60% of female voters cast their ballot for the left-liberal green candidate, while 60% of males voted for the right wing populist one. 

(2) John Burn-Murdoch in FT, 27 June 2016 (based on data from 382 voting areas).

(3) Ettore Recchiand J. Salámonska. Europe between mobility and sedentarism: Patterns of micro-transnationalism and their consequences for European integration. Unpublished working paper (2014).

(4) Theresa Kuhn, Experiencing European Integration: Transnational Lives and European Identity (OUP 2015)



Whose Freedom of Movement is Worth Defending?

By Sarah Fine (King’s College London)


‘Should the UK remain a member of the European Union or leave the European Union?’, the British government asked the electorate in a referendum on 23 June 2016. On 24 June, we awoke to the momentous news that a majority of voters had opted for ‘LEAVE’ (Brexit). Against this backdrop, the informative EUDO Citizenship debate on the relationship between EU citizenship and freedom of movement could hardly be more timely, and obviously has even greater poignancy following the historic Brexit decision.

Since the referendum question did not directly ask voters about migration, the Leave result itself cannot be interpreted straightforwardly as a rejection of EU freedom of movement. However, long before the votes were counted, commentators were connecting Brexit’s popularity with widespread negative attitudes towards the free movement of EU citizens and net immigration figures (among many other factors, of course). The dominant view was that Leave voters tended to be particularly swayed by concerns about immigration control, as distinct from Remain voters who tended to prioritise economic arguments. As the Economist wrote several months ago, ‘immigration is one subject on which Leave campaigners have a clear lead. The correlation between hostility to immigration and support for Brexit is high, so if they can turn the vote into one about migration, they will win’. Though analysts are still collecting and examining important data about voting patterns, and digesting the results, there is no doubt that migration was a pivotal issue in the national debate (1). The Brexit side clearly considered free movement to be a central concern for the electorate. With their appealing tagline of ‘take back control’, the Leave campaign put migration at the heart of the argument in favour of withdrawing from the EU. On their official website, for example, they explained ‘what would happen if we vote to leave the EU’. The second and third points (after the claim that ‘we will be able to save £350 million a week’), were that ‘we will be in charge of our own borders’ and that ‘we can be in charge of immigration’. They described immigration from the EU as ‘out of control’ and as a ‘big strain on public services’. They also linked it with security concerns, stating that the ‘EU Court’ prevents Britain both from stopping ‘violent convicted criminals coming here from Europe’ and from ‘deporting dangerous terror suspects’.  In short, the Leave side presented freedom of movement as one of the core features—if not the core feature—of EU membership, and they clearly considered that highlighting this connection would be a vote-winner for the Brexit camp. On the other side, the Remain campaign’s website and materials made little or no mention of free movement as a feature of EU membership, a silence which itself speaks volumes about general perceptions of this topic’s selling power.   

One of the most noteworthy issues discussed in the EUDO citizenship debate is the growing evidence that there is, as Rainer Bauböck explains, a ‘new political cleavage in Europe’, which is ‘most strongly articulated through citizens’ attitudes towards European integration’. I think the emphasis on the differences between ‘mobile’ citizens, for whom freedom of movement represents exciting opportunities, and ‘immobile’ citizens, who associate free movement with serious costs to themselves and their communities, is especially illuminating for trying to interpret the various anti-EU developments across the continent, including the factors which have contributed to the Brexit result.

However, I want to focus on a crucial, related issue that was striking for its absence from Floris de Witte’s kickoff contribution and the subsequent debate about the relationship between freedom of movement and EU citizenship—an issue which demands attention in any attempt to conceptualise the place of free movement in the European project. This issue is brought into stark relief by the ongoing refugee crisis, the thousands of avoidable deaths so far this year in the Mediterranean, and the growing number of people stuck in makeshift camps in European countries. It is the fact that, beyond the political, cultural and socio-economic cleavages between citizens within Europe, there is a far greater and growing divide between European citizens and the people they want to keep out. The European Parliament’s website identifies the refugee crisis and the ‘heightened terrorist threat’ as central challenges to the European free movement zone. The European Parliament states that these ‘ongoing challenges have served to underline the inextricable link between robust external border management and free movement inside those external borders and persuaded the Commission to come forward with proposals both to enhance security checks on persons entering the Schengen area and to improve external border management’. It is not news that the free movement of European citizens is widely understood to rely on hard external European borders, and now also enhanced monitoring of movement between European states. But surely this has to factor into any response to Floris de Witte’s question of whether there is ‘any reason to defend free movement as the core of EU citizenship.’

Most importantly, the conspicuous refusal of the EU to respond humanely to refugees and migrants seeking entry, as well as its collective failure to show solidarity with its own member states at the forefront of the crisis, cannot be neglected from this discussion. How can we try to defend free movement as the core of EU citizenship without considering what is happening right now at (and indeed within) the EU’s own borders?

Returning to the Brexit case, the refugee crisis and the EU’s response to it featured prominently in the public debate about the costs and benefits of EU membership. The Brexiteers were accused of trying to stoke up anti-refugee and anti-migrant fears, particularly with Nigel Farage’s now infamous ‘Breaking Point’ poster, which pictured people crossing the Croatia-Slovenia border. But it is crucial to note that the Remain side raised the issue of refugees, too—we must not forget, for example, David Cameron’s warnings that leaving the EU could mean that Calais-style camps move from France to the UK. In effect, both sides were arguing, either explicitly or implicitly, that their position offered the best prospects for keeping refugees and unwanted migrants out of the UK. As long as the EU itself continues to present refugees as a problem to be kept at bay, with repeated promises to strengthen its borders against unwanted arrivals, those of us who wish to defend freedom of movement as a core component of EU citizenship have to ask ourselves not just about Europe’s ‘immobile’ citizens who associate free movement with unpalatable costs, but about the people on the wrong side of Europe’s territorial and civic borders who are paying the ultimate price. 



(1) See e.g. this interesting GQR poll conducted for the TUC: https://gqrr.app.box.com/s/xb5sfzo19btsn74vawnmu7mn033p1ary



The Court and the Legislators: Who Should Define the Scope of Free Movement in the EU?

By Martijn van den Brink (European University Institute)



Floris de Witte makes the case for free movement as the core of EU citizenship and offers three reasons in support. I agree with these principles, at least in the abstract. De Witte’s vision certainly is normatively more appealing than the one of scholars who have pushed for a decoupling of EU citizenship from free movement. In fact, it is hard to see how EU citizenship cannot revolve to a very large extent around the right to move freely within the EU and to choose the preferred Member State of settlement. But if that is the case, de Witte seems to be asking the wrong question. What he seems to address is not the question of whether free movement should be defended, but how that should be done; through which procedures free movement is to be given shape.

Free movement as the core of EU Citizenship

De Witte is concerned about the Dano decision and sees it as an attack on free movement. No doubt the decision is a departure from earlier case law and signifies a move away from the very extensive interpretation of the free movement principles present in certain earlier decisions. Still, de Witte’s opinion of the case as well as the way he uses the decision to support his claim is remarkable and not fully persuasive. 

First, let’s for a moment think about the difference EU citizenship has made. If one would have claimed in the mid-1990s, shortly after the introduction of EU citizenship, that in 2016 many EU lawyers have serious misgivings about a decision that denies social assistance benefits to an economically inactive EU citizen with very weak links to the Member State of residence, many would have been quite surprised about such a claim. The transformation brought about by EU citizenship has in that sense been remarkable. But was free movement not the core of EU citizenship before the Court started developing this concept in its case law? Of course it was. In fact, that so many lawyers thought EU citizenship to be a meaningless addition to the Treaties was precisely because it was largely premised on free movement (1).

In other words, also post-Dano free movement remains the core of EU citizenship; it is simply that the precise contours of this right have changed somewhat. The real discussion thus is about the precise scope of the freedom to move and, relatedly, the principle of non-discrimination on grounds of nationality. The Treaty provisions on free movement are of course indeterminate and their meaning far from evident. Indeed, as de Witte suggests, the decision demonstrates that free movement is not unlimited, but whether this is a problem is something people will reasonably disagree about. This is also recognized by de Witte, who acknowledges that not everyone shares his belief that Dano is unjust. 

Justice, free movement, disagreement, and authority

But it is at this point that the real issue arises, namely, how, in the face of disagreement about justice, such contestation is to be settled? Through which political procedures do we want to resolve such disagreements? What is necessary, in other words, is to ‘complement one's theory of rights with a theory of authority’ (2). This issue has been largely ignored by most discussions of the recent social assistance case law.

While not addressed explicitly, for de Witte the authority to settle such disputes is clearly to be given to the Court. This might be, as Bellamy in his reply submits, because de Witte’s argument ‘suggests that appropriate mechanisms do not exist for a constructive democratic dialogue that allows for a clear discussion of how we might balance reciprocity between citizenship regimes and reciprocity within them in an equitable and sustainable way’. However, while far from perfect, the EU has in fact adopted decision-making procedures that to the extent possible allow for such a dialogue. This dialogue, of course, takes place when the different institutions involved in the EU’s legislative process, in which the EU citizen is represented by the national governments as well as by the European Parliament, deliberate and decide. These institutions have also spoken on many of the questions underlying the social assistance case law. They did so when the Citizenship Directive was adopted, in which the eligibility criteria for social assistance benefits for the economically inactive are laid down. The basic rule is that the economically inactive, such as students and jobseekers, are not entitled under EU law to benefits before they have acquired permanent residence. In Dano, but also a number of subsequent decisions, the Court deferred to these criteria.

I am uncertain on the basis of which grounds precisely de Witte objects to Dano, but it appears as if he suggests that the Court should have ignored the Citizenship Directive. After all, would Member States be obliged to give EU citizens like those in the position of Ms Dano social assistance benefits, it becomes increasingly difficult to see in what situations benefits can be denied to mobile Union citizens. Of course, de Witte might think this is what principles of justice require, but why the Court is the preferred institution to settle these issues, in particular when the legislator has spoken, he does not address. It simply does not suffice to claim that Dano is unjust, because it is precisely because there is disagreement about principles of justice that we need to decide who is to be given the authority to decide on these matters. The argument, which one often finds in the literature, that the Court should ensure that secondary law complies with primary law is not persuasive either (3). After all, the Treaty provisions are indeterminate, which raises the question why the Court’s interpretation of them should be preferred over that of the legislator (also the Citizenship Directive is an interpretation of the relevant Treaty provisions). For de Witte’s argument to work he would thus need to explain on what grounds he would want to leave those matters to the Court and not the legislator. In other words, if there is no obviously correct answer to the question of substance, to how the free movement provisions are to be interpreted, why should we, if we care about the law’s democratic legitimacy, not answer the question of authority in favour of the legislator?

To put it differently, I am struggling to see how de Witte’s Court-oriented perspective is compatible with his emphasis on the need ‘to calibrate questions of justice and democracy in a more appropriate manner’, because what he seems to suggest is that his preferred conception of justice is to be adopted by the Court against the wishes of the EU’s legislator.

How to defend free movement

It is, for this reason, also that I think his suggestions might be counter-productive. To understand why, let’s consider de Witte’s objections against the ‘emergency brake’. As a matter of principle I agree that this emergency brake is unnecessary and unjust. Whether the Court should also strike it down or interpret it away if it were ever adopted is a different matter. If de Witte believes that the boundaries of free movement set by the Citizenship Directive should have been ignored by the Court in Dano, he must also believe that the ‘emergency brake’ should be annulled. If, after all, the Member States should not be allowed to deny benefits to the economically inactive, he certainly must think that the Court should prevent benefits to be withheld from the economically active. Now, let’s assume that the majority of the UK electorate had voted to remain part of the EU. Following the referendum, the Citizenship Directive would have been amended so as to include an emergency brake to give effect to the UK renegotiation. If the Court would decide to strike down these amendments large parts of the UK electorate would predictably be outraged and support for free movement would likely further erode.

The question thus also is how to defend free movement. If it is left to the Court alone to decide on the scope of the mobility rights of EU citizens, and certainly if that means disregarding legislative decisions, those who are hostile towards free movement are even less likely to support free movement. Problematically, absent support for free movement principles among EU citizens, this right will be difficult to sustain. I agree, therefore, with Rainer Bauböck’s argument that the aim must be also to convince immobile Union citizens of EU citizenship’s value. 

Contrary to Bauböck, however, I am uncertain how this is to be achieved by working towards what Daniel Thym calls ‘a vision of social justice for the Union as a whole’. Thym explains, correctly in my view, that ‘free movement did not substitute national policy preferences with a supranational vision of social justice’, but thinks that the Court should foster such a uniform supranational vision. With all respect, I think it would be highly problematic for the Court to do so, not only because such judicial behaviour is likely only to reinforce the backlash against the EU, but also because as Seyla Benhabib once explained with admirable clarity

‘[s]ocioeconomic justice and criteria by which to examine it cannot be identified independently of democratic freedom and self-determination … Precisely because there is no certainty on these matters even among experts, judgments as to who constitutes the “worst off” in society or in the world at large require complex democratic processes of opinion and will-formation’ (4).

On this issue Floris de Witte seems to agree (5). But it is precisely because of his emphasis on the importance of deciding issues of great normative salience through democratic processes that I struggle to understand his Court-centred perspective when what is at stake is the question from what moment in time mobile EU citizens are to be given full equal treatment. The EU’s legislative process might be far from perfect in this regard, but it is comparatively superior, democratically speaking, to the judicial process. I think, therefore, that a plausible case can be made for the Dano decision from this angle. Furthermore, if our concern is to persuade those who are hostile towards free movement – if not of its value, then at least of the reasons why it should be respected – then defining the limits of free movement through the legislative process seems preferable. This at least allows us to explain to those who are sceptical of free movement that the rules in place were adopted on the basis of procedures in which their national governments were involved.


All of this does not change that I agree with de Witte that EU citizenship scholars should value free movement more than they tend to do. EU citizenship is not about the centralisation of rights and about replacing the democratically legitimated substance of national laws by uniform European ones. Instead, the value of EU citizenship lies in the opportunity it offers to EU citizens to take up residence in another Member State to pursue their dreams and ambitions. But while this is so, we should not forget that its value is not uniformly accepted by all Union citizens. Neither should we ignore that free movement never was meant to be unlimited. One may deplore this and criticise the status quo for being unjust, but that alone is insufficient to claim that the Court should change the scope of the free movement rights. To the contrary, if we want to defend the right to free movement and enlarge its support, respecting the legislative limitations might be the better way to go.  



(1) Michelle Everson, ‘The Legacy of the Market Citizen’ in Jo Shaw and Gillian More (eds), New legal dynamics of European Union (Clarendon Press 1995).

(2) Jeremy Waldron, ‘Participation: The Right of Rights’ (1998) 98 New Series 307, 322.

(3) Síofra O’Leary, ‘Equal Treatment and EU Citizens: A New Chapter on Cross-Border Educational Mobility and Access to Student Financial Assistance’ (2009) 34 European Law Review 612, 622.

(4) Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (CUP 2004) 110-111.

(5) See: Floris de Witte, Justice in the EU: The Emergence of Transnational Solidarity (OUP 2015) 54.



Reading Too Much and Too Little into the Matter? Latent Limits and Potentials of EU Freedom of Movement

By Julija Sardelić (University of Liverpool) 


This EUDO Citizenship debate has shown that EU freedom of movement is under attack. As Rainer Bauböck highlighted in his contribution, the outcome of the EU membership referendum in the UK cast a ‘long and dark shadow’ over any debate on EU freedom of movement. However, EU freedom of movement still has as many defenders as attackers on the legal, political and academic fronts, as well as in practical everyday contexts. As did Vesco Paskalev, I want to start this contribution with my own personal experience: I am a Slovenian citizen, who studied and worked in EU Member States other than my own, such as Hungary, Italy and the United Kingdom, where I currently reside. I have personally benefited from the rights granted to me under the EU Freedom of Movement Directive (2004/38/EC). This made it a lot easier to be mobile across the EU than it has been for my non-EU colleagues. And with the Brexit vote, I contemplate what my own position will be as a non-UK EU national living and working in the UK in the long run.  

In this contribution I aim to show that both attackers and defenders of free movement share some presumptions in their arguments. In the debate on free movement both often read too much into the potential of freedom of movement and underestimate its limits. At the same time, they are not sufficiently aware of the potential injustice freedom of movement produces as a side effect. I will illustrate both of my claims by focusing on the position of marginalized minorities, who have often been in at the centre of public anxieties about EU freedom of movement. 

Floris de Witte argues that EU freedom of movement is important not only from a state, but also from an individual perspective because it offers opportunities for emancipation as well as a ‘recalibration of justice and democracy’ beyond the state level. Both of his points are well illustrated by his example of an LGBT couple, who move from one EU Member State to another in order to get their union recognised and to lead a life with reduced risk of discrimination. In my view, this example shows how we can read too much into the potential of free movement and underestimate its limits to deliver justice. First, the question is how many EU citizens have genuine access to this right. To give a banal example, it will be a lot easier for a middle-class educated and employed LGBT individual from Zagreb to access it than an impoverished lower-class lesbian or gay man from a rural area in southeast Poland. This is not simply a question of economic means, which De Witte already indicated, but also of the social and cultural capital individuals possess according to Pierre Bourdieu (1). Having a right does not necessarily mean that you have a possibility to access it and that you will indeed do so. Second, I wonder whether freedom of movement can be the main instrument for overcoming inequalities and discrimination marginalized minorities face in the EU, if they are not tackled at the state level first. Is it in fact emancipation and recalibration of justice, when the only option for an LGBT couple is to ‘flee’ their own country to avoid discrimination?  

Saara Koikkalainen investigates the development of EU freedom of movement from its inception within the European Coal and Steal Community, where it followed a strictly economic reasoning. It has only later developed as a fundamental right of all EU citizens. Still this fundamental right is not without restrictions, which are laid down in Directive 2004/38/EC. Article 14 in the Directive states that EU migrants should not represent ‘an unreasonable burden on a social assistance system of the host Member State’. Strictly legally speaking, Martijn Van Den Brink is correct, that CJEU case C-333/13 Elisabeta Dano v Jobcenter Leipzig was in accordance with this article and did deliver justice. But the question is whether the consequences of such decision are just. De Witte and Bellamy both claimed the UK-EU ‘emergency brake’ has very little to do with justice but a lot to do with economic reasoning. I would add that it contributed to the prevalent belief that many EU migrants in the UK are in fact ‘benefit tourists’. This belief goes beyond mere economic arguments and is based on sometimes latent and sometimes open xenophobia. 

The debates on ‘benefit tourism’ are manifestly closely related to the question whether socio-economic disparities within the EU should be primarily addressed through freedom of movement. Are the member states responsible for flattening them or should they be targeted also at the EU level? Many researchers (2) showed how the debate about benefit tourism particularly highlighted the position of another marginalized minority in the EU: Romani migrants. Before 2014 British newspapers were implying that once the work restrictions for Romanian and Bulgarian citizens were been lifted, the UK would face an ‘invasion of Roma’. Newspapers such as Daily Mail adopted a xenophobic stance toward Romani migrants with headlines such as “Roma already ‘defecating at our doorsteps’”(3).

Such reporting reinforced a common misconception that Roma have a propensity to migrate from post-socialist EU Member States to the more prosperous ones, where they would become a burden on the social welfare systems. In accordance with the 1993 Copenhagen Criteria, the EU paid particular attention to the minority protection of Roma in the post-socialist countries, which had a candidate country status before joining the EU in 2004 and 2007 respectively. As some scholars argued (4), this was not merely out of humanitarian concern for this marginalized population. Such emphasis on the position of Roma was also present because of the fear that once the EU free movement policy was coupled with perceived Romani nomadism and discrimination in their own states it would become a conglomerate of push and pull factors for ‘Romani mass migration’. 

However, this is another clear example of reading too much into the potential of EU freedom of movement. According to the very small number of available studies, such as the one by Elspeth Guild and Claude Cahn (5), Romani migrants represent a miniscule proportion of all EU migrants. In addition, their migration cannot be explained simply by the theory of push and pull factors. It also does not clearly fit the presumption that EU freedom of movement is flattening socio-economic disparities between EU Member States especially for the poorest individuals. According to the study by Maria Pantea, Romani individuals who belong to the “poorest of the poor” are among the most immobile EU citizens. Maria Pantea argued that Romani EU migrants have certain economic resources, but even more importantly ‘social ties at work’ (6) and networks that make their mobilities possible. This is something immobile Romani EU citizens lack.  

Considering the position of EU Romani migrants, we can see that in practice EU free movement does not necessarily address injustices produced by nation states. In fact, it can also result in new injustice that is not present on the nation-state level, as De Witte argued. The French L’affaire des Roms showed what measures the French authorities have taken to deport ‘unwanted’ EU Romani migrants. Among these was the collective demolition of their settlements. We read too little into the potential of EU freedom of movement if we only think of it as a source of ‘recalibration of justice’. The official stance of EU freedom of movement is still to a certain extent connected to the economy, but Romani migrants can be deported in case they are also labelled as being a threat to public security and order. Here both opponents and proponents of freedom of movement are reading too little into the matter, if they think this is only a question of economy and if they downplay the sentiments based on xenophobia towards Roma. Although many Romani migrants are labelled as economically inactive, they are only inactive on the official labour market. According to the 2015 Eurobarometer on Discrimination (7) the stigmatization of Roma is so strong in virtually all EU Member States that most of them are not able to get work in the official economy and therefore find employment in unrecognized alternative economic niches. Some studies have shown that many EU Romani migrants end up as irregular workers without employment contracts or even in forced labour (8) as victims of human trafficking. While they are able to migrate because of the EU Directive on Freedom of Movement, they do not benefit from the EU Framework Directive (1989/391/EEC) on safety and health at work and face additional layers of inequality. 

Despite the many objections listed above, I still concur with those who claim that EU free movement should be defended on a normative as well as practical level. But it is only so much that EU freedom of movement can deliver. We cannot expect that as a standalone policy it would ‘recalibrate justice’ for marginalized minorities in the EU, on the one hand. On the other hand, we should take into account that the EU free movement policy does not only belong within a strictly legal domain but has broader societal implications for questions of justice. The Brexit vote showed that EU freedom of movement should be constantly debated and renegotiated not only as a core of EU citizenship, but also beyond that core. This would not imply limiting it, but thinking about it from a global justice perspective. As Sarah Fine’s contribution suggests, this perspective would ask us to consider whether EU citizens should be given a privilege of free movement over all other residents who did not draw the most favourable ticket in the citizenship birthright lottery (9).



(1) Bourdieu, P. (1984),  Distinction. Cambridge, Mass.: Harvard University Press. 

(2) Parker, O. (2012) ‘Roma And The Politics Of EU Citizenship In France: Everyday Security And Resistance’, JCMS: Journal of Common Market Studies 50.3: 475-491; Sardelic, J. (2016) ‘The Position And Agency Of The 'Irregularized’: Romani Migrants As European Semi-Citizens’, Politics.

(3) Available at: http://www.dailymail.co.uk/news/article-2531793/Roma-Britain-defecating-peoples-doorsteps-says-Tory-council-leader-warns-burden-Romanian-Bulgarian-immigrants-place-public-services.html (Accessed: 29th September 2016). 

(4) Kymlicka, W. (2007)  Multicultural Odysseys. Oxford: Oxford University Press.  

(5) Available at:  https://www.gfmd.org/recent-migration-roma-europe-claude-cahn-and-elspeth-guild (Accessed 29th September 2016).

(6) Pantea, M. ‘Social Ties At Work : Roma Migrants And The Community Dynamics’, Ethnic and Racial Studies 36 (11): 1726-1744. 

(7) Available at: http://ec.europa.eu/justice/fundamental-rights/files/factsheet_eurobarometer_fundamental_rights_2015.pdf  (Accessed: 29th September 2016) 

(8) Available at: https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/forced_labour_and_uk_immigration_policy._status_matters_1.pdf (Accessed: 29th September 2016).

(9) Shachar, A. (2009) The Birthright Lottery. Cambridge, Mass.: Harvard University Press.



What to Say to Those Who Stay? Free Movement is a Human Right of Universal Value

By Kieran Oberman (University of Edinburgh) 


Free movement requires defence, both within the Europe and at the frontier. Within Europe, we are witnessing Brexit, the Swiss vote to limit EU migration and the electoral rise of the far right. At the frontier, free movement has never fared well. The EU has always been something of a gated community, allowing insiders to move while keeping outsiders out. The only difference now, with wars in Syria, Afghanistan and elsewhere, is the higher numbers seeking entry and the higher numbers dying in the attempt. How has Europe responded? The current drive is to reinforce the borders, while calling on “safe” third countries, such as a Turkey, to house refugees. Expect more deaths and more misery in the years to come. 

It is a good time then to be raising Floris de Witte’s question: is free movement worth defending? Like De Witte, I think the answer is definitely yes but I offer a different line of argument. For De Witte, free movement is important in encouraging Europeans to change their values: to move away from a narrow concern with nations, membership and exclusion and towards a cosmopolitan regard for multiple identities and “anchorless” belonging. While this a fascinating and original take on free movement, it seems unnecessarily complex and controversial. Not everyone will accept the cosmopolitan ideological stance it assumes and even those who do might question whether free movement is either necessary or effective at promoting this ideology. The argument I offer is simpler and, in one important sense, less controversial. It defends free movement not as means to change values but rather as an extension of the values we already hold. It also offers reasons for why those who stay in their country of origin should nevertheless value their freedom of movement.

The Human Right to Immigrate

In democratic societies, great emphasis is placed on basic liberties. These basic liberties are protected in international law. The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) lists rights to freedom of religion, expression, association, marriage and occupation. These rights are essential to protecting people’s personal and political liberty. In terms of personal liberty, they entitle people to make basic life decisions such as whom they marry, which (if any) religion they practice, with whom they associate, how they communicate and to whom and which job they do. In terms of political liberty, they make it possible for people to engage in crucial political activities such as investigating the effects of government policies, debating solutions to social problems and campaigning in support of a cause. 

Free movement is important because it is prerequisite to the exercise of these other basic liberties. People cannot worship, communicate, associate, marry and work freely unless they are able to move freely. Recognising this fact, international law declares a right to free movement. Article 13 of the UDHR and Article 11 of the ICCPR proclaim a right to free movement within any country and a right to leave any country to go elsewhere.

There is one right, however, that is conspicuously absent: the right to immigrate. This is a problem since immigrations restrictions, no less than emigration restrictions and internal restrictions, curtail personal and political liberty. When foreigners are prevented from entering a country, they are prevented from worshiping, communicating, associating, marrying and working within that country. Their freedom, as well as the freedom of consenting citizens, is constrained. Individual autonomy suffers but also democracy. In an age in which so many problems are international problems and the effects of government policies are felt globally, it is crucial that citizens of different countries are permitted to interact. The power of governments and corporations transcend borders; ordinary people must not be trapped behind them.

If personal and political liberty are to be sufficiently protected, immigration must be recognised as a human right. In recognising immigration as a human right, we discover the full value of EU free movement.  Not only does free movement allow EU citizens to freely interact, it also provides a model for the rest of the world. In time, the world can and should follow Europe’s example.

There are other implications that are less flattering to the EU project, however. Human rights are universal. If EU citizens have a human right to immigrate to other EU states, non-EU citizens do likewise. The Syrians, Afghans and others at the frontier must be free to enter. Refugees have a right to live where they choose, not just the “safe” third countries to which the EU seeks to confine them. Indeed, all migrants have a right to migrate not just refugees.

Floris de Witte’s article thus starts out exactly right. Retired teachers, Romanian IT consultants, Hungarian nurses and everyone else should be able to make basic decisions regarding their lives free from state interference. But that is what is crucial. There is no need to add that free movement encourages people to achieve a new “self-understanding” as “anchorless” EU citizens. The value of free movement is both more basic and more important than that.

The Freedom to Stay

The discussion following Floris De Witte’s article has been fascinating and I have learned a great deal. Let me address two points. First, it is striking that, in the midst of a refugee and migration crisis, the discussion should have focussed so narrowly on free movement within the EU. Sarah Fine is certainly right to pick up on this and ask “whose freedom of movement is worth defending?" If the EU is not to forever remain a gated community, we should at least take note of the gates. 

Second, a number of contributors have raised an important problem: how can supporters of free movement demonstrate its value to those citizens who do not move? Floris de Witte distinguishes between “mobile” and “immobile” citizens; a distinction that Rainer Bauböck picks up on. The question becomes how can the “immobile” be won over? The problem is an important one but, in its general form, is far from new. A central theme of what remains the greatest book on the subject of liberty – JS Mills’ “On Liberty” – is the problem of justifying the freedom to pursue minority options to the disinterested majority. The answer Mill gave then still holds true today. There is an enormous difference between choosing not to pursue an option and being prevented from pursuing it. In the former case, one retains control and, with it, the opportunity to assess how one lives in comparison to alternative possibilities. In the latter case, one never makes a choice; one’s life is dictated by others. Consider the point in relation to freedom of religion. One does not have to be a religious Jew (say) to regard a state ban on Judaism as a violation of one’s freedom of religion. One’s freedom of religion entitles one to have the option to practicing Judaism, even if one never chooses to pursue it. The option is important because in having it one has a source of control over one’s life that is rightfully one’s own. 

There is a further point to be made, however. It is not only that people who stay have an interest the option of moving. It is also that the people who stay are exercising the same basic liberty as the people who move: their freedom of movement. This point is too easily missed.  People tend to assume that freedom of movement is all about movement, when in fact freedom of movement includes the freedom to stay. Freedom of movement entitles one to control over one’s movements. One does not have control of one’s movements if one is forced to move. The point is not purely conceptual. Freedom of movement encompasses the freedom to move and to stay because the same set of interests are at stake in each case. People’s personal and political liberty depends as much on the freedom to stay as the freedom to move. We cannot make our own life decisions and engage in free political activity unless we are free to stay and to move as we wish. 

It is easy to picture the free movement debate in terms of stereotypes: the “young Euro jetsetters” vs. the “resentful go-nowhere locals”. It is also easy to assume that freedom of movement is all about the movers and offers nothing to the stayers. But we need to think again. From a normative perspective, there is no sharp contrast. When we move or when we stay we are engaged in the same core activity: deciding how we spend our lives and with whom. Whatever choices we make, and wherever our choices take us, we should all be able to see how important it is that our choices are our own.

Having come this far, we can now discern something misleading in De Witte and Bauböck’s terminology. The “immobile” category is much too broad. It lumps together people who, due to poverty and other restrictions, cannot move, with people who simply choose not to. In the case of the former, the correct response is to make free movement an effective rather than merely formal freedom by tackling poverty and other barriers to movement. In the case of the latter, the correct response is to remind these people that they are not, in fact, immobile. They have made a choice about where they live and, thereby, exercised their freedom of movement. They should now allow others to do likewise.

Of course, providing a philosophical argument for why everyone should value freedom of movement is not the same as actually convincing them. After Brexit, the task appears daunting. But the problem we face is, in at least one sense, easier than the problem Mill faced in his day. Mill had to convince people of the value of basic liberties. In our day, most people accept the value of basic liberties; they just fail to realise their full implications. 


Union Citizenship for UK Citizens

By Glyn Morgan (Maxwell School, Syracuse University)


In the wake of the Brexit vote, Floris de Witte’s defense of citizenship-based freedom of movement is as important as it is timely. In linking movement to citizenship, as de Witte notices, those who move have a secure status in their new country. In any member state, the new arrival is not a foreigner, not a guest, not someone who has to apologize for being there, but a citizen whose rights are guaranteed by the EU. No one can say: “you don’t belong here.” And if they did; the response would be: “I have the same rights as you to live and work anywhere in the EU.”

Now with Brexit, UK Citizens will lose freedom of movement, and Europeans resident in Britain will lose the protection afforded by Union Citizenship. More worrying still, Brexit threatens to unravel the postwar achievements of European integration. If the UK prospers in the immediate aftermath of Brexit, other countries might follow. A Europe of nation-states will be the outcome. The idea of a unified European polity powerful enough to defend itself and project its values abroad will be lost. 

The EU must act to ensure that Brexit is a failure. It can do this by crafty deployment of a carrot and stick strategy. The stick should come in the form of refusing the UK any privileged access to the Single Market without accepting freedom of movement. No “passporting” for the UK financial services industry—a key component of the British economy—should be allowed. US and other foreign banks should be forced to relocate their headquarters to an EU financial center. The EU should make crafty use of non-trade barriers to hinder the exports of British manufacturers. If the UK wants out of the Customs Union, then the EU should monitor in fine-grained detail, a slow and cumbersome process, the foreign component of UK exports. British visitors to the Continent should be required to attain expensive visas.

The carrot comes in the form of citizenship-based freedom of movement. One step in the right direction would be for the EU to move towards a form of Union citizenship unmediated by any prior national citizenship. At the moment, people in Europe are offered only the status of being hyphenated Europeans (French-European; German-European, Italian-European etc.) rather than Europeans as such. Brexit provides an opportunity here. Sixteen million UK electors voted to remain in the EU. These people will now lose even their meagre hyphenated status and become, for the most part, reluctant national citizens of a country in the grip of populist nativism. The EU can rescue pro-Europeans from their fallen state by offering them Union citizenship –European passports unmediated by national citizenship, which will provide them with the right to live and work anywhere in Europe. Many UK citizens will jump at the opportunity. 

One difficulty with this proposal is that it offers UK citizens an advantage not currently extended to other Europeans, including, most worryingly, those now living in Britain who are threatened with losing their right to live and work there. To address this problem, the offer of unmediated European citizenship for Brits could be made conditional on Britain offering current EU citizens full national citizenship in Britain. Doubtless, the current Conservative Government will reject this suggestion. Alternatively, the offer of EU citizenship for Brits could be made contingent on certain forms of equitable treatment for current EU citizens resident in Britain. Such conditional offers from the EU will further encourage the pro-European British citizens to fight for the rights of current EU citizens in Britain. Any future British government that might wish to play fast and loose with such people will face the ire of the pro-European British eagerly awaiting the opportunity to acquire EU citizenship.

More generally, it might be objected that this citizenship proposal rewards secessionists like Britain by offering UK citizens a desirable form of unmediated citizenship. Surely, this might simply encourage other European member states to follow Britain out of Europe. This objection can be met by charging UK citizens a fee, say €10,000, to acquire European Citizenship. This policy will not only provide the funds to finance the Citizenship Office, which will have to be created de novo, but will discourage countries from thinking that they can secede from Europe while enjoying the full benefits of membership. If €10,000 is too much for some people, they could be offered European citizenship for free in return for working on pro-EU projects, which could be arranged and overseen by the new Citizenship Office. Alternatively, UK citizens could acquire Union Citizenship only if they agree to pay a small tax indexed to their salary.  Needless to say, these are bold and radical proposals, which those familiar only with mediated member-state based citizenship will take time to accept.   

Admittedly, this proposal does nothing to address the concerns of Rainer Bauböck who worries about the divide between the mobile and the immobile citizens. Indeed, in some ways this proposal further exacerbates the division between these two groups.  Nor does it solve Sarah Fine’s concerns about “the growing divide between European citizens and the people they want to keep out.” The proposal does, however, connect with Kieran Oberman’s appeal to John Stuart Mill. Many of Mill’s political writings are the works of a partisan. They are written to and for progressives who find themselves in a society where they are a minority. Mill was forever coming up with clever institutional wheezes and innovative policies that would move the cause of progress along. Knowing how to overcome setbacks is a necessary part of this project. Citizenship for pro-European Brits does not solve all of the problems that now plague post-Brexit Europe. But it offers rewards for people who need encouragement and are the most likely to become the agents of change needed to address the more serious global problems raised by Fine, Oberman, and others.  



UK Citizens as Former EU Citizens: Predicament and Remedies 

By Reuven (Ruvi) Ziegler (University of Reading)


This contribution, like those immediately preceding it, is written in the aftermath of the 23rd June 2016 referendum on the UK continued membership of the EU. At the time of writing, there are precious few known knowns (‘Brexit means Brexit’), critical known unknowns (notably, the nature of future relations between the UK and the EU-27 and ensuing free movement arrangements), and doubtlessly many unknown unknowns. Nevertheless, the premise for this contribution will be that, following negotiations (pursuant to Article 50 of the Treaty on European Union) the UK will cease to be a member of the EU, and the EU treaties will cease to apply to it on exit day (E-day).

Before turning to the legal predicament of UK citizens, and its potential remedies, it would be helpful to consider the effect on the estimated 3.1 million citizens of the EU-27, resident in the UK (unofficial data: Migration Observatory).

EU-27 citizens resident in the UK

The status of citizens of other EU Member States qua EU citizens will not be affected by the UK’s departure. Their ability to continue to exercise their acquired rights in post-Brexit UK would largely depends on decisions which can be made by the UK Parliament irrespective of the outcome of negotiations with the EU-27. 

Hence, the UK could ‘take back control’ over (future) immigration and nevertheless maintain, mutatis mutandis, the arrangements in the Immigration (European Economic Area) Regulations 2006 which implement the Citizens Directive. Nevertheless, while the UK government (July 2016 statement) ‘fully expects’ that the legal status of EU-27 citizens ‘will be properly protected’, it refuses to give assurances before the commencement of the withdrawal negotiations. At the time of writing, parliamentary initiatives (Early Day motion 259, EU Citizens Resident in the UK (Right to Stay) Bill, and a Rights of EU Nationals motion) as well as public campaigning (see here and here) have not yet come to fruition (but one remains hopeful).

Similarly, there is nothing preventing the UK from continuing to enfranchise EU-27 citizens in local government elections (pursuant to section 2 of the Representation of the People Act 1983) even when it is no longer bound to do so in order to implement its treaty obligations. Notably, the UK has broadly interpreted the phrase ‘municipal elections’ in Article 20(2)(b) of the Treaty on the Functioning of the European Union so that EU-27 citizens can currently vote in elections for devolved administrations (Scottish Parliament, Welsh Assembly, Northern Ireland Assembly), for the London Assembly, and for mayors (where they are directly elected). Most notably, EU-27 citizens, resident in Scotland, were enfranchised in the 2014 Scottish independence referendum (see EUDO forum discussion).

In contradistinction, their right to ‘participate in the democratic life of the Union’ (Article 10(3) of the Treaty on European Union) is inevitably going to be affected, as the UK will no longer send MEPs to the European Parliament whom they could elect. Nevertheless, citizens of the EU-27 need not thereby fully lose their right to vote for MEPs. A 2015 European Parliament report notes that 22 Member States of the EU-27 allow their citizens to vote for the European Parliament when they reside in a non-EU state. There are sound reasons for the EU institutions to pressure the remaining five to change their policy, especially in light of the Court of Justice’s Zambrano ratio that Member States should not hinder [43] ‘the genuine enjoyment of the substance of rights conferred by virtue of their status as citizens of the Union’. Moreover, it is not implausible that the Court of Justice’s Delvigne ratio (concerning disenfranchisement of prisoners, discussed here) will prompt a legal challenge to disenfranchisement of Union citizens residing in non-EU Member States. In addition to the legal framework, it is submitted that the policy reasons for enfranchisement apply a fortiori when Member State citizens reside in a former EU Member State.

UK Citizens as former EU citizens

Under the current treaty arrangements, all UK citizens who do not hold the citizenship of another EU Member State will cease to be citizens of the Union, whether or not they have exercised their EU mobility rights: citizenship of an EU Member State is a necessary and sufficient condition for Union citizenship (Article 9 TEU). 

Bauböck lucidly describes a ‘cleavage’ between mobile and immobile EU citizens, characterising the Brexit vote as ‘a political revolt of immobile against mobile Europeans’. But, as Oberman notes, ‘the right to immigrate’ means that today’s immobile EU citizens can choose whether to become mobile in future: indeed, while for citizens of other EU Member States, the choice may come early in life (see Paskalev’s and Sardelic's contributions) many Britons (cue Harry Shindler, excluded from voting in the EU referendum pursuant to the 15 year of non-residence bar) made use of mobility rights in their later years. To borrow Joni Mitchell’s exhortation, for many Britons, the vote to leave may yet turn into a case-in-point of ‘you don’t know what you’ve got till it’s gone’.

The Court of Justice held in Rottmann that, when a Member State strips its citizen of her or his citizenship, the situation [42] ‘falls by reason of its nature and its consequences, within the ambit of EU law’. Consequently [55-56] ‘each individual decision…must be in line with the European principle of proportionality’ and ‘take into consideration…the loss of the rights enjoyed by every citizen of the Union’. Hence, it is perhaps ironic that the prospective en masse stripping of EU citizenship from UK citizens (save for those who are also citizens of another EU Member State) will likely occur without (Court of Justice) judicial scrutiny as and when the treaties cease to apply to the UK. It casts a realistic light on the judgment in Chen where the Court of Justice pronounced that [25] ‘Union citizenship is destined to be the fundamental status of nationals of the Member States.’

Nevertheless, as Advocate General Maduro noted in his opinion in Rottmann [23] ‘Union citizenship assumes nationality of a Member State but it is also a legal and political concept independent of that of nationality. Nationality of a Member State not only provides access to enjoyment of the rights conferred by Community law; it also makes us citizens of the Union. European citizenship is more than a body of rights which, in themselves, could be granted even to those who do not possess it.’ Coupled with the Zambrano ratio (above), the question is: how can the predicament arising from UK citizens’ loss of EU citizenship status and rights be addressed? 

Automatic/accelerated naturalisation of UK citizens (residing) in other Member States 

Politicians in Germany and Italy were reported to have suggested naturalisation of ‘young’ Britons residing in their respective states, and many Britons have (individually) started searching for a nationality link, most notably to Ireland. Now, it is within the gift of Member States to determine their naturalisation criteria, and requires no treaty change; the UK tolerates acquisition of other nationalities. 

However, notwithstanding their well-intentioned premises, such proposals pose substantive challenges: First, they will inevitably lead to divergent treatment of UK citizens across the Union, as some states will not relax their naturalisation requirements to accommodate UK citizens. Second, relaxation of naturalisation requirements (which may include citizenship tests) on an ad hoc basis for one national group may be deemed unjustified. In this context, it is noteworthy that the Union generally encourages states that do not permit dual nationality to relax their objections in relation to the acquisition of the nationality of another Member State (Germany, for instance, generally requires its nationals to obtain permission before acquiring another nationality, save in the case of another EU Member State or Switzerland). In contradistinction, the Maltese ‘citizenship for sale’ (see EUDO debate) caused a degree of discomfort; hence, doubts could be raised as to the propriety of e.g. en masse waver of residence requirements for naturalisation. Third, naturalisation is an inexact remedy: Britons have an effective nationality, albeit one whose instrumental value for free movement will have (potentially, depending on the UK-EU future relations) been adversely affected.

(Partial) decoupling of Union citizenship from Member State citizenship

Morgan’s proposition to create ‘a form of Union citizenship unmediated by any prior national citizenship’ appears to offer a more direct link between the predicament (loss of EU citizenship rights) and the remedy. However, by making the offer ‘conditional on Britain offering current EU citizens full national citizenship in Britain’ or ‘contingent on certain forms of equitable treatment for current EU citizens resident in Britain’, and by making the re-attainment (viz. retention) of EU citizenship financially contingent (€10,000) so as to ‘discourage countries from thinking that they can secede from Europe while enjoying the full benefits of membership’, he significantly weakens the normative basis of his proposition. If the Union ought to be concerned about the individual loss of EU citizenship status and rights, why should its retention be made contingent on policy choices of a former Member States? This seems like the UK government’s ‘bargaining chips’ or ‘cards’ strategy in reverse (it is also noteworthy, for the reasons noted above, that the predicament of EU-27 citizens residing in the UK does not arise from an ineffective nationality). 

Moreover, it is not only morally contestable, but also puzzling how making the re-attainment of Union citizenship costly for individuals will discourage states from ‘seceding’ (withdrawing) from the Union: it seems plausible to assume that (most if not all of) those UK citizens who would wish to retain their Union citizenship had preferred that the UK remain in the Union, but were outvoted. If the Union is concerned about preservation of their individual status and rights, it is due to the disjuncture between their own preferences and the aggregate preferences of their polity. Finally, it is rather unclear whether Morgan proposes to open the Union citizenship route to all UK citizens who do not hold the citizenship of another EU Member State, or just to those who have already exercised mobility rights. 

Dawson and Augenstein argued elsewhere that the decision to withdraw Union citizenship (viz. obtaining Union citizenship through citizenship of a Member State) should rest not with the withdrawing state but with the individual EU citizen, who may either retain or renounce his or her citizenship. This proposition appears more comprehensive and normatively consistent: it would apply to all Britons (whether or not they have exercised mobility rights), recognising their unique predicament as citizens of a former Member State, and thus distinguishing them from citizens of other states, for whom the route to Union citizenship will remain via acquisition of Member State citizenship. It also does not tie their fate to that of the EU-27 citizens. Indeed, there is arguably a qualitative difference (for individuals) between exclusion from club membership and benefits, on the one hand, and non-inclusion therein, on the other hand: many organisations (think universities) retain a special relationship with their alumni. 

However, the decoupling of Union citizenship from citizenship of a Member State would require a fundamental treaty change. What will the creation of two categories of Union citizens do to the self-perception of the EU as an ‘[ever closer] union among the peoples of Europe’ (Article 1 TEU), a ‘demoicracy’ a-la Nicolaïdis? To draw on the university alumni analogy, their privileged status (compared with members of the public) is manifested by retention of access to entitlements generally restricted to members – but they are nonetheless former members. 

UK citizens as Third Country Nationals

Absent treaty change that will address the predicament of UK citizens qua former Union citizens, UK citizens who do not hold the citizenship of another Member State on E-day will become Third Country Nationals (TCN). Mobile UK citizens may qualify as Long Term Residents (LTR). As such, they will benefit from the LTR Directive (as amended in 2011 to extend its scope to beneficiaries of international protection) and from the Right to Family Unification Directive. Both Directives apply in all EU-27 Member States except Ireland (where UK citizens have a free-standing right to reside that preceded Union membership) and Denmark. 

Pertinently for this debate, after five years of continuous residence (Article 4 LTRD) and subject to satisfying additional criteria, LTRs acquire the right to reside in the territory of Member States other than the one which granted them the long-term residence status (Article 14(1) LTRD); following the acquisition of LTR status, they enjoy substantive entitlements under EU law wherever the reside in the Union, including equality of treatment with Union citizens in a wide range of economic and social matters (Article 11 LTRD) and enhanced protection against expulsion (Article 12 LTRD). A fairly modest legislative change to the LTRD that would mitigate the predicament of UK citizens could be the granting of LTR status to mobile UK citizens, irrespective of whether they have met the continuous residence and/or other LTRD requirements.

One of the substantive differences between mobile EU citizens and TCNs concerns political participation. TCNs are not entitled to participate in the ‘democratic life of the Union’; nor are Member States required to enfranchise them in local elections. However, nothing prevents Member States from so doing: indeed, the (limited) number of signatories to the Council of Europe Convention on the Participation of Foreigners in Public Life at Local Level are committed to residence-based enfranchisement on the local level and among the EU-27, eleven states permit TCNs to vote in local elections. The Union could amend the LTRD by disaggregating certain citizenship rights, such as national treatment in respect of local voting rights, from Union citizenship. 

Ruptures in the legal terrain

The Brexit vote came about, in part, due to anxieties surrounding the (perceived) absence of suitable controls on the exercise of the right to free movement by Union citizens. To borrow an earthquake metaphor, the extent to which the aftershocks of 23rd June 2016 will rupture the Union’s legal terrain remains to be seen.  


“Migrants”, “Mobile Citizens” and the Borders of Exclusion in the European Union

By Martin Ruhs (Oxford University)


In his opening contribution to this debate about the future of free movement in the European Union, Floris de Witte concludes that “free movement must be celebrated and defended as the core of EU citizenship, as a right that is available for all 500 million EU citizens, and as an idea that benefits all those citizens – whether they make use of it or not.” [emphasis mine] One of the key reasons de Witte provides for his defence of free movement is that “it makes us sensitive to practices of exclusion”. He argues that “the right to free movement and non-discrimination attached to EU citizenship can be understood to correct instances of injustice and promote the inclusion of outsiders: it makes national distributive systems sensitive to the need to incorporate EU migrants who contribute to the host state in an economic and social way.” 

De Witte is right that free movement serves the important goal of promoting the inclusion of EU migrants (the “outsiders” in de Witte’s analysis) in the economies and societies of EU member states. This is clearly an important achievement of free movement. However, what about the inclusion and exclusion of the much larger group of “outsiders”, namely, people from outside the European Union? If part of our evaluation of free movement is based on its effects on the exclusion of outsiders –and I agree that this should be a fundamental concern – don’t we need to consider all outsiders, not just those from within the EU? 

My main critique of de Witte’s discussion is that it considers free movement in complete isolation of EU countries’ immigration policies and exclusionary practises toward non-EU nationals. This focus on free movement without consideration of wider immigration policies is striking, especially in the context of many EU member states’ highly restrictive policies towards the large number of refugees and other migrants seeking protection in Europe over the past few years. As Sarah Fine points out in her contribution, “how can we try to defend free movement as the core of EU citizenship without considering what is happening right now at (and indeed within) the EU’s own borders?” 

I argue that we need to connect debates about the free movement of EU citizens with discussions about EU member states’ “immigration policies” toward people from outside Europe. This is exactly the opposite approach to the one traditionally taken and advocated by the European Commission and many other European policy-makers who have insisted on a clear distinction between “mobility” of EU citizens on the one hand, and “immigration” of third-country nationals on the other. 

To develop my argument, I first outline some of the key differences between how “migrants” and “mobile EU citizens” are debated and regulated in the European Union. This is followed by a brief explanation of why I think the current distinctions may be considered problematic from both a moral and political perspective. 


There are very large differences between how EU member states currently treat “migrants” from outside Europe and “mobile EU citizens” from within Europe, in terms of both regulating their admission and rights after entry. In all countries, immigration is restricted through an often complex range of national admission policies that regulate the scale and selection of migrants. National immigration policies typically distinguish between high-skilled migrants (who face fewer restrictions on admission), lower-skilled migrants (relatively more restrictions) as well as different rules for admitting family migrants, students, asylum seekers and refugees. 

National immigration policies also place considerable restrictions on the rights of migrants after admission, including their access to the labour market, welfare state, family reunion, permanent residence and citizenship. As it is the case with admission policies, rights restrictions typically vary between high- and low-skilled migrant workers (with the rights of lower-skilled migrant workers significantly more restricted) and across family migrants, students, asylum seekers and refugees. As I have shown in my recent book that focuses on international labour migration; European and other high-income countries’ immigration policies are often characterised by trade-offs between “openness” and some “migrant rights”, that is, labour immigration programmes that are more open to admitting migrant workers are also more restrictive with regard to specific rights (especially social rights). 

Public debates and policy-making on immigration vary across countries but they are typically framed in highly consequentialist terms, i.e. based on the (perceived and/or real) costs and benefits of particular admission policies and restrictions of migrants’ rights for the host economy and society. This cost-benefit approach to policy-making has been a long-standing feature of labour immigration policies.  Arguably, it is also becoming an important factor, and in some European countries the most important consideration, when it comes to polices towards asylum seekers and refugees. Some European countries’ recent policies toward refugees and migrants fleeing conflicts and violence in Syria and other places are primarily shaped by the perceived impacts on the national interest of the host country rather than by humanitarian considerations, protection needs or respect for international refugee conventions.  

A central feature of national migration policy debates in European and other high-income countries is the idea of “control” i.e. the idea that immigration and the rights of migrants can be controlled and regulated, at least to a considerable degree, based on the perceived costs and benefits for the existing residents of the host country. Of course, states’ control over immigration is never complete and subject to a number of constraints but the idea of control is still at the heart of national immigration debates and policy-making.  The perceived “loss of control” over immigration has been a major driver of the rise of Donald Trump in the United States, Britain’s referendum vote to leave the European Union, and the growing support for right-wing parties across various European countries. 

Mobile citizens

The policy framework for regulating the movement of EU citizens across member states, and their rights when residing in a member state other than their own, is very different from the restrictions imposed on people from outside the EU (or the EEA, to be exact). The current rules for free movement give citizens of EU countries the right to move freely and take up employment in any other EU country and – as long as they are “workers” – the right to full and equal access to the host country’s welfare state. This combination of unrestricted intra-EU mobility and equal access to national welfare states for EU workers is an important exception to the trade-off between immigration and access to social rights that characterises the labour immigration policies of high-income countries. Critically, while the idea of “control” is a central feature of debates and policies on the immigration of people from outside the EU, EU member states have effectively no direct control over the scale and characteristics of the inflows of EU workers. From the perspective of the EU, the overall aim has been to encourage rather than limit and control the mobility of EU citizens between different member states.  

In terms of the European institutional framework, free movement is kept completely separate from the immigration of third-country nationals. While free movement is part of the remit of DG Employment, Social Affairs and Inclusion and DG Justice, policies for regulating immigration from outside Europe are dealt with by the DG Migration and Home Affairs. One of the consequences of this division has been that EU debates and policy aimed at the integration of migrants have been heavily focused on migrants from outside the EU. 

A third distinction relates to the terminology used to describe and discuss the cross-border movement of  EU citizens and non-EU citizens. European policy-makers typically insist that EU citizens moving from one member state to another are not “migrants” but “mobile EU citizens”.  (Although I am critical of this distinction, for the sake of clarity I have stuck with this terminology in this contribution.) This distinction is not just a reflection of differences in policy approaches but also serves the purpose of framing public debates in a way that suggests that mobile EU citizens are very different from the (non-EU) outsiders whose migration needs to be carefully regulated and controlled.   

Linking migration and mobility 

The distinctions made in the public debates and policies on immigration and “mobile EU citizens” raise a number of important ethical and political questions. First,  insisting on near-equality of rights for mobile EU citizens while at the same time tolerating what are sometimes severe restrictions of the rights of migrants from outside the EU is, in my view, morally problematic. On the one hand, current policy insists on equality of rights for EU workers including, for example, equal access to non-contributory welfare benefits, i.e. benefits that are paid regardless of whether the beneficiary has made prior contributions or not. On the other hand, many EU member states are unwilling to admit and protect large numbers of refugees who are fleeing violence and conflict and/or grant them full access to the national welfare state. While a preference for protecting the interests and rights of insiders can of course be defended on moral grounds, I suggest that the magnitude of the discrepancy between how EU member states treat each other’s ‘citizens compared to most migrants from outside the EU should give us pause for critical reflection.           

The disconnect between “mobile EU citizens” and “migrants” may also be politically problematic, in the sense that it potentially endangers (rather than protects, as is commonly argued) the future sustainability of the free movement of EU workers within the European Union as well as public support for immigration more generally.  The inflow of “mobile EU citizens” in a particular member state has very similar types of effects, and raises very similar economic issues and tensions, as the immigration of migrants from outside the EU. As it is the case with “migrants”, “mobile EU citizens” affect the labour markets and welfare states of host countries in one way or another, creating costs and benefits for different groups. Insisting that “mobile citizens” are not “migrants” runs the danger of obscuring these impacts that mobile EU citizens have on the economies and societies of their host countries.  This may, in turn, prevent important debates at European level about the consequences of free movement for EU citizens who do not move, and ultimately result in a decline in political support for the free movement of labour within the EU and perhaps also for immigration more generally.  

A third question concerns the potential inter-relationships between EU member states’ policies on immigration and mobility.  How are our policies for the inclusion/exclusion of EU citizens related to our policies for the  inclusion/exclusion of people from outside the EU? We know  that past EU enlargements have in many member states led to more restrictive labour immigration policies for non EU-nationals, especially lower-skilled workers. This may be a perfectly justifiable response within the sphere of labour immigration. The picture gets more complicated and problematic, however, if we consider the potential relationships between the free movement and equal treatment of EU workers and the highly regulated admission and restricted rights of asylum seekers and refugees from outside Europe. How, if at all, do the current policies for the inclusion of mobile EU citizens affect our policies for excluding/excluding asylum seekers, refugees and other migrants from outside Europe – and vice versa? These are open and important issues for empirical research.  Any defence of the current rules for free movement should, in my view, consider and engage with these wider questions and inter-relationships. 



EU Citizenship, Free Movement and Emancipation: a rejoinder

By Floris de Witte (London School of Economics and Political Science)

As was to be expected on a topic such as the relationship between free movement and Union citizenship, the discussion above has been both fruitful and wide-ranging, not in the least due to the decision of the British electorate to leave the EU that took place half-way through this EUDO forum debate (and that throws in doubt the rights of residence of Union citizens in the UK, as well as that of UK citizens in the EU). Rather than replying to the many interesting and insightful contributions individually, I will aim to address some of the themes that transcend the various points of view expressed. These are, in my view, three. 

First, many commentators have suggested that my defense of Union citizenship as being primarily about free movement is insufficiently sensitive to its exclusionary potential. This exclusion may take place at Europe’s borders (think of the refugee crisis), but also within the Member States, where free movement has been understood as being available primarily – and actually – for the young, urban, educated elite. For those left behind – be it at Europe’s borders or at home – free movement, on this account, is not a promise but a problem at the core of Union citizenship. The second theme that can be traced in the discussion is the effect that my understanding of free movement has on the state and its structures. On this view, construing Union citizenship as being centered on its capacity to discipline the nation state and its political processes through free movement creates a number of problems of its own – ranging from the reconstruction of political participation to the destabilization of internal processes of solidarity and will-formation. The third and final theme that many commentators have picked up on, in different ways, is that understanding Union citizenship as being primarily about free movement offers (at best) a partial, inaccurate and normatively unattractive vision of what the individual European subject is. Union citizenship, on this account, ought to be about more than allowing individuals to escape their nation state and its political or normative preferences.

The exclusionary potential of free movement and Union citizenship

In my initial contribution, I have defended the close link between free movement and Union citizenship on account that it liberates the individual from the shackles of majoritarian views ‘at home’, that it recalibrates ideas of justice in a more appropriate fashion, and that it is not premised on a vision of community that is exclusionary. Several commentators have emphasized that this vision is, however, also one that is selective. Sarah Fine highlights that while free movement might be a right that is available for EU citizens, it is also a reason for the creation of ‘hard’ external borders that attempt to keep out non-Europeans, who often find themselves stranded in terrible circumstances outside (or even inside) the EU. Kieran Oberman, likewise, points out that such closure on the EU-level simply recreates the problem that I am trying to overcome: it excludes outsiders, limits their emancipation and capacity to enjoy a range of rights. 

Others, such as Rainer Bauböck, have emphasized that free movement (and therefore Union citizenship) prioritises the needs and aspirations of certain Europeans (let’s say the well-educated, young, urban, and middle-classes) over those of other Europeans (in the traditional account, this group comprises of the elderly, the rural, working classes). This division, as is well documented, also appeared to lie at the core of the electoral split in the UK on Brexit. Julija Sardelić adds to this account that mobility requires certain social and cultural resources that are unavailable for whole swathes of the population. The differentiation that is implicit in free movement, on these accounts, jars with the basic premise of equality that is central to our understanding of citizenship. 

Let me take these arguments in turn, starting with the exclusionary potential of free movement and Union citizenship in the most dramatic – territorial – sense. Sarah Fine is certainly correct to highlight that the process of integration and its manifestation as Fortress Europe has dramatic consequences for those that cannot claim a right to free movement or Union citizenship. And certainly the institutions of the EU have placed a dodgy understanding of vulnerability at the core of its external border policy: one that understands the EU and its Member States to be vulnerable from intrusion by ‘the other’ as an object, rather than one that understands the refugees as the subject of vulnerability. This process can, possibly, indeed by reduced to the creation of a category of Union citizen that remains the main subject of the EU legal order, and main preoccupation of its institutional order, as Martin Ruhs claims. But the argument that reduces the drama unfolding at the Union’s borders (and within the Union’s borders) to a problem that is created by free movement and Union citizenship conflates two – admittedly intertwined – processes. 

Borders matter. Borders construct polities and engender certain relationships. And those relationships matter for the way in which we attribute rights and obligations. Many of us would not feel particularly inclined to share our resources with, say, a Russian oligarch. Most of us, conversely, would give up just about anything for the sake of our children or partner. Between these two extreme poles, our commitment to others depends on a range of factors – from the agapistic reflex that extreme suffering generates, to ideas of historical, ethnic, linguistic communities and from those revolving around sexual orientation, gender or political preferences to those created by shared institutional frameworks. On this relational account, the creation of the EU is, in its simplest form, the institutionalization of new relationships between citizens across borders. Something links the Polish national to the Belgian national that does not include their Ukrainian (or Australian, Ecuadorian, Senegalese) neighbour. The relationships generated by Union citizenship, in other words, must mean something – in my account primarily a shared commitment towards opening up national communities. That does not, of course, mean that non-EU citizens ought to be treated poorly, that they are somehow undeserving of protection, admission to the territory of the EU or help. What it does mean is that these are two conceptually separate discussions. The extent to which we defend or limit free movement of Union citizens, and the matter in which we construe internally the rights and obligations of those EU citizens based on their inter-personal relationship as institutionalized by EU citizenship, has little to do with how we treat those outside our borders of membership. Conditions, obligations, and rights of membership are bounded: they include members, and exclude non-members. This applies to book clubs, terrorist organisations, and transnational political communities. What we owe refugees fleeing war in atrocious and hazardous circumstances is a question that is distinct from the question what we owe fellow European citizens. The difference – which also explains why the former is so difficult to answer legitimately and authoritatively – is that one of these questions has been institutionalized, and the other has not: we have legal norms and institutional structures that translate the ill-defined bond between Europeans into Union citizenship. And that institutionalization, in turn, is only possible once we accept that borders matter. Not as instruments to keep people out, but as instruments to solidify the relationships between those inside the borders. This also means that, contrary to Glyn Morgan’s suggestion, if the UK were to leave the EU its citizens cannot remain Union citizens, and cannot derive rights and obligations under that heading. 

But the close link between free movement and Union citizenship has a second exclusionary effect – one that is internal to the EU. On this view, Union citizenship is an advantage for those willing and able to make use of it; but a disadvantage for those who cannot. On this narrative, the ‘immobile’ citizen faces increased competition for jobs and welfare resources from the ‘mobile’ citizen. Citizenship and free movement, then, create winners and losers – a process that became blatantly obvious in the Brexit-vote. I would contest this argument both normatively and institutionally. The fact that only a portion of citizens actually make use of their right to free movement does not make the right any less important or relevant. A small proportion of the population makes use of their rights to free association or freedom of expression. Increasingly fewer people use their right to vote. Does that make these rights increasingly less relevant or important? Of course not. The same applies to free movement. The mere possibility of movement, legally guaranteed by free movement and Union citizenship, moreover, also has a reflexive virtue, as picked up by Vesco Paskalev (who highlights that younger Brits – regardless of their exercise of free movement – understand it to be a public good) and Saara Koikkalainen (who shows that 78% of EU-wide respondents support free movement). The possibility of free movement liberates the self-understanding of the individual from the collective self-understanding of the polity they happen to be born in. 

This does not mean that Union citizenship and free movement offer an equal opportunity of exercise to all Union citizens. As I will discuss below, the EU does not dispose of the institutional framework that can articulate and sustain such an understanding of substantive justice. To be sure, free movement presupposes certain social and cultural resources (if not necessarily those associated with the ‘transnational elite’ – it is hardly against these groups that the Brexit-vitriol was directed). What matters for our argument in this section, however, is not that free movement has high conditions of entry, but that it creates negative effects for those that do not make use of it (for whatever reason). This can be explained in one of two ways. First, and in the most important narrative in the Brexit campaign, it was suggested the EU migrants not only take jobs away from UK citizens, but also welfare resources, and create increased pressure on schools and hospitals. At the same time, every single piece of research that has taken place suggests that the UK benefits fiscally from free movement. How can these two positions be squared? It’s very simple: by the decision of successive UK governments not to invest the fiscal windfall from free movement in additional welfare resources such as schools and hospitals. 

The other way of explaining the cleavage between pro-mobile and anti-mobile citizens is not to focus on the economics, but on identity politics. Rainer Bauböck, for example, refers to Theresa Kuhn’s book in highlighting that individual experiences of transnationalism (‘lived experience’) makes them more pro-European and pro-free movement. On this view, it is to be expected that, say, Gibraltar, would vote in favour of staying in the EU with 96%, while, say, Stoke-on-Trent would vote with 69.4% against it. But that argument understands the idea of ‘transnational experiences’ much too narrowly. The ‘Leave’ voters in Stoke eat pizza and drink Stella Artois. The local pride – Stoke City football club – combines English players with Dutch, Austrian, Spanish, Italian and Irish stars. These kind of less obvious transnational experiences matter as they locate elements of ‘the other’ in something we consider our ‘own’. The social capital built up through free movement extends much beyond instances of Erasmus or holidays abroad. It pervades our world. 

But if both the economic and the sociological argument explaining the cleavage between pro-mobile and anti-mobile are at best oversold, how can we explain its indisputable emergence? The starting point in this analysis was intimated above – and that is that many of the citizens that have rejected the EU have indeed been ‘left behind’. But the main culprit is their own government, not the EU. This is different, of course, in instances where the EU mandates welfare reform through its austerity drive. But blaming welfare scarcity in the UK on the EU seems a bit rich. Yet why do voters blame the EU and not the UK? This is where Brexit reveals a more structural problem for the EU, as I have discussed elsewhere. It is because the EU cannot institutionalize contestation appropriately. In a well-functioning democracy, discontent that is so widely spread as the Brexit-cleavage is internalized in the system, and mediated through the politics of contestation. In such a system, political conflict feeds into the process of decision-making and stabilizes the overall project. Democracy, on this view, is a safety valve for emergent discontent. In the EU, on the other hand, the nature, conditions, and consequences of free movement cannot be contested. The only possible way to contest the normative orientation of the European market is to leave the EU. And so we see ‘hard left’ parties claiming that if we want to resist the neo-liberal nature of the EU, the only thing we can do is leave it. And so we have parties on the extreme right claiming that if we want to resist immigration (for whatever reason), the only thing that we can do is leave the EU. If the EU doesn’t start to think about how it can internalize and institutionalize contestation of its values, Union citizenship and free movement will indeed be seen as something that divides, that creates winners and losers. Not necessarily because it does create winners and losers, but because its contours and effects are not mediated through a process that can legitimize and explain the outcome.

What Union citizenship and free movement do to the state

A second theme that has emerged in the discussion is that my account of Union citizenship as ‘anchorless’ and as getting round the ‘ethno-centric’ vision of the nation state, on the one hand, underestimates the virtues of national institutional structures in solidifying inter-personal commitments and general will-formation and, on the other hand, underestimates the power of free movement as an instrument for cosmopolitan justice. These two points – made by Richard Bellamy and Kieran Oberman, respectively – suggest that my argument takes seriously neither the nation state nor cosmopolitanism. Instead, it is precariously perched between these two poles: free movement and non-discriminatory access to welfare benefits for EU migrants, on this account, are parasitical on domestic political commitments and extend them across borders without succeeding in fully disentangling them from the nation state and its structures. In simple terms, it destabilizes the nation state without replacing it with the promise of egalitarian cosmopolitanism. More is lost than gained in the exercise.  

Richard Bellamy highlights that my argument is premised on the quest to create “a fully fledged political and legal cosmopolitanism that looks to the ultimate demise of nation states as a necessary condition for justice”. He suggests that in doing so I misrepresent the state. The modern-day nation state is less exclusionary and more pluralist than I have presented it to be; and it is, crucially, indispensible for the determination, enforcement and stability of sharing practices. On the first point Bellamy is partially right: it is empirically demonstrable that membership to national political communities has never been more inclusive and pluralist. But this has clearly not affected the capacity for exclusionary and ethno-centric political narratives to control the political process – across the EU (and the US). It seems that the more diverse and inclusive our societies have become in terms of their membership, the less sensitive their politics become to diversity and inclusion of those that are not members. More inclusive membership thus does not equate to a pluralist society. On the second point Bellamy is completely right: the nation state remains absolutely indispensible in the determination, enforcement and stability of sharing practices and the processes of collective will-formation. My argument is not based on the rejection of the state – and on the slow process towards a political cosmopolitanism. Instead, it is based on the realization that, given that the state and its institutional structures are indispensible for structuring authority in a legitimate fashion, we must be sensitive to its externalities. On this view, EU citizenship and free movement are not meant to obliterate the state; they are meant to limit the externalities of the institutional structure of the nation state. The first externality has been discussed at length in my initial post: that the nation state limits choices available for the citizen. The trade-off in liberal democracies is that in return for your chance to vote, you accept the majority position. Free movement cuts across this limit and offers Union citizens the choice of different visions of ‘the good’. 

The second and more structural externality, which Bellamy has picked up, is most easily explained if we pick up an element discussed above – that demands of justice are relational. As Païvi Johanna Neuvonen also reminds us, relationships between individuals that generate claims of justice or solidarity might take place within borders, but also across borders. The point that my initial contribution makes is essentially that while we have institutions that can make sense of the former type of relationships (namely, the domestic political process, that can mediate between competing claims of justice by insiders), it cannot possibly make sense of the relationships across borders. Imagine an Irish woman living in France and working in Belgium. What does the social relationship between her and French society mean in terms of justice? What does Belgium ‘owe’ her because of her economic participation in the Belgian market? Allowing the French or Belgian political system to answer these questions creates a democratic problem, as our Irish women (and therefore her relational position vis-à-vis nationals) are not included in its determination. This is where and how free movement and Union citizenship, and particularly through the principle of non-discrimination based on nationality serve to more appropriately settle questions of justice and democracy. Union citizenship and free movement respect the institutional structures of the nation state in the determination and enforcement of questions of justice. As far as EU law is concerned, the Austrian decision to have free tertiary education is as ‘just’ as the UK’s decision to charge £9000 per year. This respect for national choices is indeed, as Bellamy highlights, necessary for its stability. What free movement law does is simply extend that decision to include those Union citizens who have a sufficiently strong relationship with the host state – be it through economic or social interactions. As such, free movement and Union citizenship do not serve to substitute for the nation state and its structures, they serve, instead, to recalibrate questions of justice in a fashion that is more sensitive to the relationships across border that the EU has engendered, to which the nation state is structurally blind.

This idea of Union citizenship as supplementing national citizenship can, of course, be deduced from the text of the Treaty. It also means that Union citizenship and free movement are not codifications of a sort of cosmopolitanism as suggested by Kieran Oberman. Free movement, on my account, is not a good per se. It is a good because of the way in which it recalibrates domestic processes of will-formation and sharing – not because it seeks to replace or subvert them. It creates emancipatory potential for individuals exactly because they can navigate between existing institutional articulations of justice and ‘the good life’. Without those institutional structures of the nation state, free movement and equal treatment is pointless. Being equally entitled to nothing, after all, entitles you to nothing. This leads to me to the final point that I made in my initial contribution. The way in which Union citizenship and free movement attempt to internalize relationships across borders within domestic institutional structures is normatively appealing exactly because it piggy-backs on those domestic structures. There is no need for the articulation of a European form of ‘being’ that can integrate and structure its own idea of community and political form. EU citizenship is, in a sense, agnostic. 

A normative vision for Union citizenship

The final theme that has come through the discussion is that this link between free movement and citizenship that is central in my account makes for a normatively and institutionally impoverished vision of justice. This critique comes in many flavours. Daniel Thym highlights that the Court’s ruling in Dano, for example, demonstrates the absence of a robust or ‘thick’ principle of justice in the Court’s understanding of what free movement and Union citizenship mean. More broadly, he argues that even if free movement once constituted the core of a normatively ambitious idea of what it means to be a European citizen; the Union has now lost constitutional confidence, and has become more deferential to domestic ideas of belonging, sharing and justice. What is needed, then, is a thicker vision of social justice that engages all Europeans, whether they move or not. Criticism of this lack of a more coherent and nuanced idea of justice can also be traced in other contributions. Johanna Païvi Neuvonen suggests that the normative centrality of free movement understands the subject as atomistic and unencumbered – which makes for a narrow, individualistic, and, ultimately, not particularly emancipated, self. Emancipation, after all, requires the capacity to encounter the ‘other’ as part of the construction of the self. Vesco Paskalev argues that the ease of movement across borders destabilizes another element that is crucial to justice and citizenship: that of (equal) political participation and engagement. On these accounts, free movement does not suffice. Union citizenship should be about more than simply free movement if it is to be normatively appealing. I broadly agree on these points, in so far as they indicate that Union citizenship offers a partial vision of justice at best. It does not set out a vision of substantive justice for 500 million Europeans. It does not deal well with instances of discrimination that transcend borders, as Julija Sardelić reminds us.

The problem is that Union citizenship can never offer more than a partial vision of justice unless we recreate on the European level the institutional preconditions that we find on the national level (and that I have argued in favour of above). To use the example mentioned above: is it more ‘just’ to fund tertiary education through general taxation or make the student pay himself? If we have a fiscal windfall of €400 million, should we spend it on healthcare, pensions, or education? These questions can only legitimately be answered if they are discussed and mediated through a ‘thick’ democratic institutional structure – of which the EU is a very very distant cousin. The EU simply does not possess the institutional structure required to answer the question: ‘what is it to be European?’ or ‘what do we Europeans owe each other’. And this institutional incapacity leaves us in a double bind: national political processes are sufficiently ‘thick’, but structurally exclude relationships across borders from consideration. European political processes are too thin to articulate a substantive vision of justice for all 500 million Europeans. What we are left with is the legal norms of free movement and EU citizenship that seek (and not always succeed) to figure out what these relationships across borders mean in terms of justice. The idea of justice in the EU, in a sense, is tiered: it depends on both national institutional structures and transnational legal norms. Free movement and Union citizenship, then, as Païvi Johanna Neuvonen forcefully argues in her comment and her recent book, may not be sufficient to achieve justice in the EU – but they are necessary. Unless and until the EU develops its institutional structure in a way that is more sensitive to the views of its citizens, this is as good as it gets. 

The institutional implication of this argument is that the scope and limits of free movement and Union citizenship cannot be decided through political structures as they currently are. Martijn van den Brink has argued that the Union legislator offers a democratic – if not particularly ambitious – vision on what free movement means, and the Court in Dano was right in accepting this vision. Union citizenship, in his view, is not a normative commitment towards emancipation and the limitation of state power, but its opposite: an expression of state power. Member States, acting together in the Council, have the right to decide when and under which conditions free movement is possible, and to decide what the limits of EU citizenship ought to be. This argument underestimates the level of institutional sophistication that is required for a system to be able to ‘translate’ inter-personal relational claims of justice and solidarity into a legitimate and enforceable system of rights and obligations. As Richard Bellamy has highlighted as well, the institutional presuppositions for this task cannot be found beyond the nation state. The EU lacks thick representative, deliberative and participatory elements, it lacks the support cast of integrated political parties, civil society, grassroots movements, transnational media that allow for inter-personal communication about the question: ‘how do we want to live together in this social space?’ ‘What do we owe each other by virtue of our shared participation in the EU?’. The Union legislator cannot possibly get the answer to these questions ‘right’. So we are left in an institutional situation where these incipient, partial, and ill-defined bonds and relationships between Europeans, created by transnational economic, social, political and cultural links cannot be articulated by either national legislatures or their European counterparts. Ill-equipped as the Court may be to makes sense of these new relationships, it is the only institution that can make good on its premise: that it must mean ‘something’ to be a Union citizen beyond what it means to be a national of a Member State. 

Bloodlines and Belonging: Time to Abandon Ius Sanguinis?

Bloodlines and belonging: Time to abandon ius sanguinis?

By Costica Dumbrava (Maastricht University)


The transmission of citizenship status from parents to children is a widespread modern practice that offers certain practical and normative advantages. It is relatively easy to distribute legal status to children according to parents’ citizenship, especially in the context of high mobility where the links between persons and their birthplace are becoming increasingly strained. Granting citizenship status to children of citizens may also be desirable as a way of avoiding statelessness, acknowledging special family links and fostering political links between children and the political community of their parents. These apparent advantages of ius sanguinis citizenship are, however, outweighed by a series of problems. In what follows I argue that ius sanguinis citizenship is (1) historically tainted, (2) increasingly inadequate and (3) normatively unnecessary. Ius sanguinis citizenship is historically tainted because it is rooted in practices and conceptions that rely on ethno-nationalist ideas about political membership. It is inadequate because it becomes increasingly unfit to deal with contemporary issues such as advances in assisted reproduction technologies and changes in family practices and norms. Lastly, ius sanguinis citizenship is normatively unnecessary because its alleged advantages are illusory and can be delivered by other means.


As a key instrument of the modern state, the institution of citizenship has been closely linked to nationalism. Ius sanguinis citizenship was reintroduced in Europe by post-revolutionary France, which sought to modernise French citizenship by discarding feudal practices such as ius soli.[1] Whereas in modern France the adoption of ius sanguinis was premised on the idea of a homogenous French nation, in countries with contested borders, such as Germany, ius sanguinis played a key role in maintaining ties with co-ethnics living outside borders and thus in nurturing claims to territorial changes. Although ius sanguinis citizenship is not conceptually “ethnic” (in the same sense in which ius soli citizenship is not necessarily “civic”), there are a number of ways in which the application of the ius sanguinis principle has been used in order to promote ethno-nationalist conceptions of membership.

Firstly, the application of unconditional ius sanguinis in the context of a long history of emigration means that emigrants can pass citizenship automatically to their descendants regardless of the strength of their links with the political community. No less than twenty countries in Europe maintain such provisions.[2] Whereas one can find several non-nationalist arguments for justifying emigrants’ citizenship, these weaken considerably when applied to successive generations of non-residents.

Secondly, there are cases in which countries rely on the principle of descent in order to confirm or restore citizenship to certain categories of people whom they consider to be linked with through ethno-cultural ties. Apart from cases where ethnic descent is an explicit criterion of admission (e.g. in Bulgaria, Greece), there are countries where ethnicity is camouflaged in the language of legal restitution or special duties of justice (e.g. in Latvia, Romania). In this way, persons can have their citizenship status “restored” on the basis of descent from ancestors who had been citizens or residents in a territory that once belonged, even if briefly, to a predecessor state with different borders.

Thirdly, the combination of unconditional ius sanguinis citizenship with the reluctance to accept alternative ways of incorporating children of residents (such as ius soli) is also a strong indicator of an ethnic conception of citizenship, especially in the context of a long history of immigration. Convoluted attempts to adopt and expand ius soli provisions in Germany and Greece illustrate this point. In 2000 Germany adopted ius soli provisions[3] but maintained that, unlike persons who acquire German citizenship through ius sanguinis, those who acquire citizenship via ius soli could retain it only if they relinquish any other citizenship before their 23rd birthday.[4] In 2011 the Greek Council of State halted an attempt to introduce ius soli citizenship in Greece[5] by claiming that ius sanguinis is a superior constitutional principle whose transgression would lead to the “decay of the nation”.[6]


Consider the following two real cases.

Samuel was born in November 2008 in Kiev by a Ukrainian surrogate mother hired by Laurent and Peter, a married gay couple of Belgian and French citizenship respectively.[7] Samuel was conceived through in vitro fertilisation of an egg from an anonymous donor with Laurent’s sperm. Upon his birth and according to practice, the surrogate mother refused to assume parental responsibility and thus transferred full parentage rights to Samuel’s biological father. When Laurent requested a Belgian passport for Samuel, the Belgian consular authorities refused on grounds that Samuel was born through a commercial surrogacy arrangement, which was unlawful according to Belgian law. After more than two years of battles in court, during which Laurent and Peter also attempted and failed to smuggle Samuel out of Ukraine through the help of a friend pretending to be Samuel’s mother, a Brussels court recognised Laurent’s parentage rights and ordered authorities to deliver Samuel a Belgian passport. With it, Samuel was able to leave Ukraine and settle with Laurent and Peter in France.

In 2007 Ikufumi and Yuki, a married Japanese couple, travelled to India and hired Mehta as surrogate mother for their planned child.[8] Using Ikufumi’s sperm and an egg from an anonymous donor, the Indian doctors obtained an embryo, which they then implanted in Mehta’s womb. Only one month before the birth of Manji, the resulting child, Ikufumi and Yuki divorced. When Ikufumi attempted to procure a Japanese passport for Manji, the Japanese authorities refused on grounds that Manji was not Japanese. According to the Japanese Civil Code, the mother is always the woman who gives birth to the child. Despite having three “mothers” – a genetic mother, who contributed with the egg, an intended mother who later declined involvement, and a surrogate mother, who did not plan to take up parental responsibilities – Manji had no obvious legal mother. Indeed, Manji’s Indian birth certificate mentioned Ikufumi as the father but left the rubric concerning “the mother” blank. After much legal wrangling Manji was issued a certificate of identity stating that she was stateless, with which Ikufumi managed to take her to Japan.

These are just two of a growing number of cases that test the legal and normative linkage between human reproduction, legal parentage and citizenship. Not only do they question conventional assumptions about the biological and cultural basis of citizenship, but they also show the limits of the principle of ius sanguinis in ensuring the adequate determination of citizenship status.

The incongruity between reproduction, legal parentage and citizenship is not an issue triggered solely by advances in reproductive technologies. Traditionally, children born out of wedlock could not acquire the father’s citizenship through descent. Many countries still maintain special procedures for the acquisition of citizenship by children born out of wedlock to a foreign mother and a citizen father. In most cases this implies submitting a request for citizenship after parentage is legally established, although in Denmark these children can acquire citizenship only if the parents marry. In the Czech Republic and the Netherlands (for children older than 7), the determination of parentage for the purpose of citizenship attribution requires showing evidence of a genetic relationship between the father and the child. As argued by the European Court of Human Rights in its 2010 judgment on Genovese v Malta[9], the differential treatment of children born within and out of wedlock with respect to access to citizenship amounts to discrimination on arbitrary grounds. This practice is also at odds with contemporary trends that indicate an impressive surge in births out of wedlock; the share of such births in the EU27 rose from 17% of total births in 1990 to 40% in 2013.[10]

One of the biggest challenges to ius sanguinis citizenship comes from the spread of assisted reproduction technologies (ART). About 5 million babies worldwide have been born through ART since the birth of Louise Brown, the first “test-tube baby”, in 1978.[11] ART have developed rapidly generating a multi-billion dollar market in assisted reproduction. A significant share of this market involves the international movement of doctors, donors, parents, children and gametes. In order to avoid legal restrictions or to cut costs, a growing number of infertile men and women, usually from high-income countries, travel to destinations such as India, Thailand or Ukraine in order to have “their” babies conceived through in vitro fertilisation procedures using sperm or eggs (or both) donated by people from places such as Spain or Romania.

Many problems arise because the international market for assisted reproduction is not properly regulated, which means that national regulations often conflict with one another. Countries that oppose surrogacy consider the surrogate mother as the legal mother even if they are not genetically related to the child. According to this reasoning, the husband of the surrogate mother is the presumed father of the child. However, countries that encourage surrogacy usually recognise the intended mother and father as the legal parents, regardless of whether they are genetically related to the child. As the stories on Samuel and Manji show, when these two approaches collide the children risk becoming, as Justice Hedley put it, “marooned, stateless and parentless”.[12]

In some cases intended parents have the possibility to establish parentage and citizenship for their children born through surrogacy. However, such special arrangements often discriminate between (intended) mothers and fathers. For example, in the US children born to surrogate mothers outside the country are treated as children born out of wedlock, so fathers can be recognised as legal parents and therefore extend citizenship to children if they provide proof of a genetic relationship with the child (through a DNA test). Intended mothers, however, cannot be recognised as mothers even if the child was conceived using their eggs and even if they are married to the intended father.[13] It follows that, in cases where another woman’s womb is involved, paternity and citizenship can still follow the sperm but not the eggs.

The practice of gamete donation has become increasingly accepted and regulated, so donors are in principle discharged of parental responsibilities with regard to children they help to conceive. However, it is not always clear what counts as donation. In a recent US case, a man successfully claimed parentage with regard to a child who was born after an informal agreement in which he agreed to “donate” sperm to a friend. The Court decided in the man’s favor arguing that his act did not count as donation because the procedure used in the insemination did not involve “medical technology” (they used a turkey baster). The ultimate test of paternity in this case relied on a mere technicality, which can hardly be seen as a morally relevant fact for establishing fundamental ties of filiation and citizenship.[14]  

The development of ART is likely to further complicate questions about parentage and citizenship. The new techniques of embryo manipulation, for example, make now possible the transfer of a cell nucleus from one woman’s egg to the egg of another, which means that the resulting child will have three genetic parents. Advances in technologies for freezing gametes and embryos raise questions about the rights and responsibilities over future births and about the status of future children. There have already been a number of cases of posthumous conception in which the sperm or eggs of a deceased person were used by the spouse or another relative in order to conceive children. For example, it was recently reported that a 59 years old woman from the UK gave birth to “her” daughter’s child.[15] These practices raise obvious questions as to whom these children belong to and they may as well trigger issues of citizenship. Lastly, progress has been made on the creation or “artificial” gametes through the modification of other types of human cells. Apart from opening possibilities for bypassing the heterosexual model of procreation[16], these techniques raise concerns about abuse or reproductive “crime”. Imagine a world in which it would be possible to create a child from a tissue sample collected from somebody’s cup of coffee. Those famous actors and footballers would probably think twice before shaking their fans’ hands.


One could argue that the main problems do not lie with ius sanguinis citizenship but with the determination of legal parentage. Once we solve issues related to legal parentage, then the ius sanguinis principle will effectively address citizenship matters. However, this view ignores that dilemmas regarding the attribution of parentage are often triggered or complicated by citizenship (and migration) issues. It can also be argued that relying solely on legal parentage to settle citizenship issues disregards fundamental normative questions about who should be a citizen in a political community.

Despite much liberal-democratic talk about social contract, democratic inclusion and active citizenship, the overwhelming majority of people in the world acquire citizenship by virtue of contingent facts about birth (descent or place of birth). While ius soli citizenship has received considerable political and academic attention recently due to pressing concerns about the inclusion of children of immigrants, ius sanguinis continues to be taken for granted. In the remainder of this essay, I briefly challenge two main theoretical defences of ius sanguinis: (a) that ius sanguinis citizenship recognises and cements the special relationship between the parent and child; (b) that ius sanguinis citizenship ensures the intergenerational stability of the political community.

The main problem of ius sanguinis citizenship is that it is parasitic on external factors concerning the legal determination of parentage. As one of the examples presented above shows, it may only take a choice between a petri dish and a turkey baster to make somebody a parent and hence a supplier of citizenship status. The relevance of horizontal family ties between spouses in citizenship matters has largely diminished, as a flipside of the spread of gender equality norms, since in liberal states wives no longer automatically acquire their husbands' citizenship. By contrast, parental ties continue to remain paramount for the regulation of citizenship. Even if there are good reasons for seeking to ensure the swift transfer of citizenship from parents to children (e.g. to prevent statelessness), this approach is questionable because it renders children vulnerable. Ius sanguinis citizenship makes access to citizenship for children dependent on parents’ legal status, actions or reproductive choices.

As in the case of spouses, joint citizenship adds little to the legal and normative character of the parent-child relationship.  There is little doubt that the law should treat children and the parent-child relationship with special attention. However, this could and should be achieved regardless of the citizenship status of children and parents. One could, for example, extend the legal rights associated with parentage and filiation (e.g. conferring full migration rights to children of citizens) or seek to establish a universal status of (legal) childhood that confers fundamental right and protection to children regardless of their or their parents’ citizenship or migration status.

The second argument for ius sanguinis citizenship is that the automatic transition of membership status from parents to children ensures the smooth reproduction of the political community. As children of citizens grow, they become socialised in the political community of their parents and develop political skills necessary for furthering their parents’ project of democratic self-government, skills that they will eventually pass on to their own children. An easy objection to this view is that it is empirically naïve, especially in the context of increased migration and diversification of family practices. Citizenship is thus based on a contested expectation. Instead of granting citizenship ex-ante to persons who are likely to develop desirable citizenship attitudes and skills, we could delay the attribution of citizenship until such attitudes and skills are confirmed. Alternatively, there may be other normative considerations for turning children into citizens. For example, being born in the country and/or living there at a young age makes children not only subject to the law of the country but also highly dependent on the state, which, for example, is required to provide regular and reliable access to medical care such as vaccinations. These considerations could justify granting children at least provisional citizenship.

The intergenerational dimension of democratic membership can hardly be achieved by relying on legal fictions or on biological contingencies. Our efforts should rather be channelled towards consolidating democratic institutions and promoting citizenship attitudes and skills among all those who find themselves, by whatever ways and for whatever reasons, in our political community. As for the children who happen to be born here, we should treat them as political foundlings and give them all the care and support they need to become full political members.



[1] Weil, P. (2002). Qu' est-ce qu'un Français? Paris: Grasset.

[2] Dumbrava, C. (2015). Super-Foreigners and Sub-Citizens. Mapping Ethno-National Hierarchies of Foreignness and Citizenship in Europe. Ethnopolitics 14(3), 296-310. http://dx.doi.org/10.1080/17449057.2014.994883.

[3] Hailbronner, K. and A. Farahat (2015). Country Report: Germany. EUDO Citizenship Observatory. http://cadmus.eui.eu/bitstream/handle/1814/34478/EUDO_CIT_2015_02-Germany.pdf?sequence=1.

[4] Bock, L. (2015). Germany: As ‘Option Duty; reform comes into force, first figures on individuals having lost their citizenship emerge. Citizenship News, EUDO Citizenship Observatory. http://eudo-citizenship.eu/news/citizenship-news/1342-germany-as-option-duty-reform-comes-into-force-first-figures-on-individuals-having-lost-their-citizenship-emerge.

[5] Christopoulos, D. (2011). Greek State Council strikes down ius soli and local voting rights for third country nationals. An Alarming Postscript to the Greek Citizenship Reform. Citizenship News, EUDO Citizenship Observatory. http://eudo-citizenship.eu/news/citizenship-news/444-greek-state-council-strikes-down-ius-soli-and-local-voting-rights-for-third-country-nationals-an-alarming-postscript-to-the-greek-citizenship-reform

[6] The Greek parliament has recently pushed forward another proposal regarding ius soli in an attempt to overcome the deadlock. See (2015). Greece: New citizenship bill now opened for public consultation. Citizenship News, EUDO Citizenship Observatory. http://eudo-citizenship.eu/news/citizenship-news/1385-greece-new-citizenship-bill-now-opened-for-public-consultation.

[7] The European Parliament (2013). A comparative study on the regime of surrogacy in EU Member States. Study for the Directorate-General of Internal Affairs, Policy Department: Citizen’s Rights and Constitutional Affairs, pp. 90-1. http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474403/IPOL-JURI_ET(2013)474403_EN.pdf.

[8] Points, K. (2009). Commercial surrogacy and fertility tourism in India: The case of Baby Manji. Case Study, Kenan Institute for Ethics, Duke University. https://web.duke.edu/kenanethics/CaseStudies/BabyManji.pdf.

[9] Genovese v. Malta, Application no. 53124/09, European Court of Human Rights, 11 October 2011. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-106785#

[10] BBC News (2013). Two in five EU babies born out of wedlockhttp://www.bbc.com/news/world-europe-21940895.

[11] The European Society of Human Reproduction and Embryology (2014). ARTs fact sheethttp://www.eshre.eu/Guidelines-and-Legal/ART-fact-sheet.aspx.

[12] Re: X & Y (Foreign Surrogacy), [2008] EWHC (Fam) 3030 (U.K.). http://www.familylawweek.co.uk/site.aspx?i=ed28706.

[13] Deomampo, D. (2014). Defining Parents, Making Citizens: Nationality and Citizenship in Transnational Surrogacy. Review of. Medical anthropology. Published online: 25 September 2014. http://dx.doi.org/10.1080/01459740.2014.890195.

[14] Brandt, R. (2015). Medical intervention should not define legal parenthood. Bionews. http://www.bionews.org.uk/page.asp?obj_id=523229&PPID=523190&sid=282.

[15] Smajdor, A. (2015). Can I be my grandchild's mother? BioNews. http://www.bionews.org.uk/page_504476.asp.

[16] Shanks, P. (2015). Babies from Two Bio-Dads. Biopolitical Times, Center for Genetics and Society. http://www.biopoliticaltimes.org/article.php?id=8418.



Ius filiationis: a defence of citizenship by descent

By Rainer Bauböck (EUDO CITIZENSHIP co-director, EUI)

Aristoteles famously defined a citizen as someone “giving judgment and holding office” in the polity.[1] Yet, this does not settle the issue since we first need to know who qualifies for holding office. And so he continues: “For practical purposes a citizen is defined as one of citizen birth on both his father’s and his mother’s side”.[2] Times have changed. From the French Revolution, which revived ius sanguinis, until the second half of the 20th century, citizenship was mostly transmitted only from the father to the child. Today, largely as a result of international conventions against the discrimination of women, all democratic states define a citizen as one of citizen birth on either the father’s or the mother’s side. Yet ius sanguinis remains the dominant rule for acquisition of citizenship worldwide. True, in the Americas the stronger principle is ius soli, the acquisition of citizenship through birth in the territory. But even there those born abroad to citizen parents who were themselves born in the country are recognized as nationals by birth.

Given this overwhelming presence of ius sanguinis in nationality law, Costica Dumbrava’s call for abandoning it is bold. Some might even say, it is quixotic, but I disagree. It is indeed time to reflect on the future of ius sanguinis and to abandon it as a doctrine linking citizenship to biological descent. Yet there are good practical and normative reasons why the principle of citizenship transmission from parents to children will remain alive and ought to be retained.

Dumbrava runs three main attacks against ius sanguinis: It is tainted by its association with ethno-nationalism; it is inadequate because, in an age of artificial reproduction technologies, same sex marriage and patchwork families, biological descent no longer traces social parenthood; and it is unnecessary since its protective effects can be achieved by other means. I will accept the first and second argument with some modifications but reject the third.

Not the only one tainted

As Dumbrava points out, modern ius sanguinis was seen as a democratic and revolutionary principle in contrast with ius soli that had its origins in the feudal idea that any person (or animal) born on the territory was subject to the ruler of the land. Deriving citizenship from citizen descent rather than territorial birth made it possible to imagine a self-governing people reproducing itself. Dumbrava is of course right that seeing the nation as a community of shared descent across generations made it also easier to justify the exclusion of foreigners as well as the inclusion of co-nationals across the border. Yet this is not a sufficient reason for abandoning ius sanguinis.

First, an ethnonationalist disposition can be overcome while maintaining ius sanguinis if this principle is supplemented with ius soli and residence-based naturalisation. The latter has created an ethnically highly diverse citizenry in continental European immigration countries even in the absence of the additional inclusionary effects of ius soli. The reason for this ethnically inclusive effect of ius sanguinis is simple: If first generation immigrants have access to citizenship and take it up, then ius soli and ius sanguinis does not make much difference: the children of immigrants will be citizens under either rule.

Secondly, a pure ius soli regime is also tainted and not only because of the feudal origins of the principle. Territorial nationalism can be just as nasty as ethnonationalism and may be fanned by thinking of ius soli as the right of the “sons of the soil.” Even the case of Romania that Dumbrava lists among the problematic ones is ambiguous in this regard. If Romania awards citizenship to the descendants of those born in its lost territories, is this an instance of ius soli or ius sanguinis and an illustration of ethnic or of territorial nationalism? The answer is probably: both. Ius soli and ius sanguinis are therefore not alternatives, but can be combined in benign ways that neutralise the potentially illiberal effects of either principle, as well as malign ways that enhance their nationalist potential for ethnic exclusion and territorial expansion.

Thirdly, pure ius soli also has vicious exclusionary effects for migrants. In most American states, the immigrant generation 1.5 – those who have entered the country as minor children – cannot acquire citizenship before the age of majority. President Obama’s Dream Act is an attempt to mitigate some of the worst consequences for the children of irregular immigrants. Even more problematic is the common distinction between nationals and citizens in many Latin American states (see the new American country profiles on EUDO CITIZENSHIP). Only those born in the territory are considered nationals (they are sometimes also called “naturals”). They turn into citizens with full voting rights at the age of majority. Immigrants who naturalise become citizens, but not nationals. They remain excluded from many public offices (also the US president still has to be a “natural born citizens”) and they can be deprived of their citizenship status, whereas nationality can often never be lost. In Uruguay even the concept of “naturalisation” does not exist because those who are not born in the territory can never become “naturals”.  Similar exclusionary effects of ius soli traditions apply to those born abroad to citizen parents. They often do not acquire citizenship unless they are registered in time by their parents and they may lose it unless they “return” before the age of majority.

If both ius sanguinis and ius soli are tainted in these ways, should we consider an even more radical alternative of abandoning citizenship by birth altogether? Why not replace it with ius domicilii so that citizenship is acquired automatically with taking up residence and lost with outmigration? Or should we maybe replace it with ius pecuniae,[3] i.e. a global market for citizenships in which individuals can bid for membership status anywhere and states can set the admission price?  Neither of these alternatives is morally attractive and something important is lost when we give up birthright citizenship.

Why not ius filiationis?

Dumbrava’s second argument is that developments in reproduction technologies and in the social and legal recognition of new family patterns make ius sanguinis increasingly unworkable and obsolete.

This problem is not entirely new and a solution is already available. International law has long abandoned the idea that children should acquire only one citizenship at birth. Since they can inherit two different citizenships from the mother’s and the father’s side (maybe in addition to a third one acquired iure soli), why should they not receive the citizenship of both an intended and a surrogate mother or an intended father and a sperm donor? Asking the question makes it already clear that the problem is not the multiplicity of citizenships per se, but the mismatch between biologically determined citizenship and parental care arrangements that would also open the door to abusive claims. The traditional solution that is already available in most nationality laws for cases where the biological parent is not the social parent is transmission of citizenship through adoption.[4] Why should it not be possible to generalise this model from the marginal case of adoption so that a modified ius sanguinis refers to social rather than biological parenthood (as it already does in several jurisdictions)?

The main issue with such a new ius filiationis might be that determination of citizenship is less automatic than it used to be for children born in wedlock to their biological mother and father. Yet states that are committed to the welfare of children have to figure out anyhow how to determine legal parenthood in the more complex family arrangements of contemporary societies. In order to avoid statelessness it is important that every child obtains at least one citizenship immediately at birth. And in order to make sure that children are not caught between conflicting legal norms and can develop stable relations to their countries of citizenship, it is important that their citizenship status does not change automatically when they become part of a new family. If these concerns are taken into account through a combination of ius soli with legally determined initial parenthood, what objections can be raised against recognizing primary caregivers as well as persons with additional custodial rights as legal parents who can transmit their citizenship to the child?

Don’t abandon the children!

Dumbrava’s third argument is that ius sanguinis is not necessary because children’s rights can be protected through other means. He claims that ius sanguinis renders children vulnerable by making their “access to citizenship … dependent on parents’ legal status, actions or reproductive choices.” This is indeed a reason why the children of immigrants need ius soli as an independent right to citizenship in their country of birth. Unfortunately, in the US, their birthright citizenship does not prevent them from being deported together with their undocumented parents, whereas immigrant minors who are EU citizens have a right to stay that protects also their primary caregivers from deportation.[5]

Yet small children are in any case dependent on their parents’ migration decisions. This is a an equally strong reason why they also have a claim to share their parents’ citizenship, since they risk otherwise to remain stranded in their country of birth or be treated as foreigners in their parents’ country of nationality. Dumbrava suggests preventing this by “conferring full migration rights to children of citizens”. But would migration rights become more secure if they are disconnected from the legal status of citizenship that is the only one obliging states to unconditionally admit them? Alternatively, he suggests to “establish a universal status of (legal) childhood that confers fundamental rights regardless of their or their parents’ citizenship or migration status.” This is what the Children’s Rights Convention, which is one of the mostly widely signed and ratified human rights documents, aims to do. The question is not only whether states are willing to respect these rights, but whether they can be held responsible for protecting them. For this, children need not only human rights, they also need their parents’ citizenship.

Delayed citizenship for all?

Dumbrava has, however, a much more fundamental objection that targets both ius sanguinis and ius soli: Citizenship as membership in a political community should not depend on “contingent facts of birth (descent or place of birth)”. This is a common critique that always leaves me puzzled.[6] My very existence depends on these contingent facts. Humans cannot will themselves into being but are thrown into the world without choosing where to be born and to which parents. What is morally arbitrary is not that states use these fundamental features of personal identity to determine membership in political communities, but that in our world citizenship provides individuals with hugely unequal sets of opportunities. This is not an inherent feature of birthright citizenship but of the global economic and political (dis)order. If we want to overcome it, we have to address the causes of global inequality directly instead of attributing them to those rules that make individuals equal in status and rights as citizens of a particular state.

Dumbrava’s critique focuses, however, on another birthright puzzle that has bothered republican theorists. Shouldn’t membership in a self-governing political community be based on consent? And does it not presuppose certain attitudes and skills that first need to be developed?[7] We may expect that children who are born and grow up in the state territory or who are raised by citizen parents will eventually want to join the political community and will also acquire the skills required for political participation. Yet these are expectations rather than certainties. Dumbrava suggests therefore that “we could delay the attribution of citizenship until such attitudes and skills are confirmed.” However, since children also depend on the state for their health and education, he adds that they could at least be granted provisional citizenship. The Latin American distinction between nationality acquired at birth and citizenship acquired at majority seems to approximate this idea.

One reading of Dumbrava’s proposal is that this is just a terminological distinction harking back to Aristotle’s two definitions of citizenship. If we consider as citizens those who “give judgments and can hold office”, i.e. the members of the demos, then children are indeed only provisional citizens but will automatically become full citizens at the age of majority. The other interpretation draws, however, a line between the two statuses that can only be crossed by demonstrating the right attitude and skills. Instead of naturalising immigrants into a birthright community, this community itself would be denaturalised and reconstituted through a citizenship test imposed on all provisional native citizens. It may seem a form of poetic justice to treat natives like immigrants. Yet there is a big difference between expecting and promoting citizenship attitudes and skills and making them a requirement for access to citizenship rights. The only reason why immigrants can be expected to spend a few years as residents before becoming citizens, which gives them time to develop citizenship skills, and to apply for naturalisation, which demonstrates a civic attitude, is that they are birthright citizens of another state who have grown up there.

Citizenship across generations

Dumbrava concludes by suggesting that the intergenerational continuity of democratic membership should be achieved through consolidating institutions and educating citizens rather than the legal fictions and biological contingencies of birthright citizenship. One might ask why democracies need intergenerational continuity. The answer leads us back to the original justification for ius sanguinis after the French Revolution. It should not be the rulers who determine who the citizens are, nor the citizens themselves through some democratic procedure in which they decide whom to admit or reject, nor the mere fact of subjection to the laws due to temporary presence in the territory. All of these rules lead to too much contingency and discontinuity with regard to the composition of the citizenry. Promoting civic attitudes and skills among those who are citizens is important, but it cannot resolve the puzzle who has a claim to be a citizen in the first place. Automatic acquisition of membership at birth and for life sets this question aside. It makes citizenship a part of citizens’ personal identities that they are like to accept. And it allows democracies to tap into resources of solidarity and to promote a sense of responsibility towards the common good and future generations.

In a nutshell, these are my two arguments why a modified version of ius sanguinis should be accepted as necessary for democratic states:

In a world of territorial states that control immigration, ius sanguinis (or ius filiationis) is as indispensible as ius soli for protecting the children of migrants. It provides them with the right to stay and to be admitted in their country of birth as well as their parents’ country of origin. No other legal status can secure these rights as well as a birthright to dual nationality.

Deriving citizenship from unchosen and permanent features of personal identity – where and to whom one is born – sets aside the politically divisive membership question for the vast majority of citizens, creates a quasi-natural equality of status among them and signals that membership is linked to responsibilities for the common good and for future generations. No citizenship education programme can fully substitute for these signalling effects of birthright citizenship.  

[1] Aristotle. 1962. The Politics. Transl: T.A.Sinclair, revised and commentary: J. Saunders ed. London Penguin, III.i: 169.

[2] ibid, III.ii: 171-2, original emphasis.

[3] Joachim Stern, Ius Pecuniae – Staatsbürgerschaft zwischen ausreichendem Lebensunterhalt, Mindestsicherung und Menschenwürde, in: Dahlvik/Fassmann/Sievers (eds.), Migration und Integration – wissenschaftliche Perspektiven aus Österreich, Jahrbuch 1/2011. See also the EUDO CITIZENSHIP forum „Should citizenship be for sale?“ and Jelena Dzankic (2015) Investment-based citizenship and residence programmes in the EU, EUI Working Papers RSCAS 2015/08, Florence.

[4] See the EUDO CITIZENSHIP modes of acquisition database.

[5] Case C-200/02 Zhu and Chen v Secretary of State for the Home Department, 2004; Case C-34/09 Ruiz Zambrano v Office National de L'emploi, 2011.

[6] For nuanced critiques of birthright citizenship based on this idea see Carens, Joseph H. 2013. The Ethics of Immigration. Oxford: Oxford University Press; Shachar, Ayelet. 2009. The Birthright Lottery. Citizenship and Global Inequality. Cambridge, MA: Harvard University Press.

[7] See Dumbrava, C. (2014). Nationality, Citizenship and Ethno-Cultural Belonging, Preferential Membership Policies in Europe. Houndmills Basingstoke, Palgrave Macmillan, chapter 8, 9.



Tainted law? Why history cannot provide the justification for abandoning ius sanguinis

By Jannis Panagiotidis (IMIS Osnabrück)


In his thought provoking piece, Costica Dumbrava rejects ius sanguinis as 1) historically tainted, 2) increasingly inadequate and 3) normatively unnecessary. In my response, I will mainly focus on the first, historical dimension. Drawing on examples from the case of Germany, often used as the prime example to show what is wrong with ius sanguinis, I will contest the idea that ius sanguinis as such has been discredited by history. 

Regarding the second and third points, I will restrict myself to the following brief observations, which are broadly in line with Rainer Bauböck’s comments: while the issue of ART and citizenship raised by Dumbrava is indeed intriguing, I would go along with his own observation that this is more about the determination of legal parentage than about ius sanguinis, and with Bauböck’s emphasis on social rather than biological parenthood. Discarding the ius sanguinis principle due to certain specific cases it might not adequately cover would mean throwing the baby out with the bathwater. 

I am also simultaneously intrigued and skeptical regarding the suggestion to introduce a sort of “a-national,” universal status for children. Against the backdrop of recent historical research into children as the object of nationalist contestation and agitation during the first half of the twentieth century, a scenario in which “children belonged more rightfully to national communities than to their own parents,” this idea appears intuitively attractive.(1) Having said that, one can turn the argument around and see the suggested disconnection of parent and child citizenship as another attempt to claim children from their parents, this time on behalf on an imaginary inter- or supranational community. Yet in a world still (and for the foreseeable future) structured by nation states, where most so-called human rights are in fact citizens’ rights, one may indeed wonder about the benefits of such a status “above” or perhaps “beyond” the nation if the parents cannot enjoy similar rights. 

Tainted by history?

As to the argument of ius sanguinis being historically tainted, Dumbrava first of all needs to be commended for recognising that “ius sanguinis citizenship is not conceptually ‘ethnic’” (my emphasis, J.P.). Nevertheless, he argues that “there are a number of ways in which the application of the ius sanguinis principle has been used in order to promote ethno-nationalist conceptions of membership.” These include 1) the maintaining of emigrant citizenship beyond the first generation of emigrants; 2) the use of “the principle of descent in order to confirm or restore citizenship to certain categories of people whom [states] consider to be linked with through ethnocultural ties;” and 3) the exclusion of immigrant children from citizenship by an exclusive use of ius sanguinis with no ius soli elements. 

Regarding the third point, I fully agree with Bauböck that it can be remedied quite easily by combining these two principles of citizenship allocation and simultaneously allow for residence-based naturalisation. The first issue is similarly unproblematic: extra-territorial transmission can simply be interrupted at a certain generational stopping point, much like the rule Germany introduced in section 4, paragraph 4 of its reformed 1999 citizenship law regarding the non-acquisition of German citizenship by the offspring of German citizens who themselves were born abroad after 31 December 1999.(2)  There is no rule that says that the transmission of citizenship to descendants has to be possible ad infinitum.

Not all types of “descent” are the same

I would like to discuss the second point in more detail, which touches upon the topics of preferential membership policies and co-ethnic citizenship and migration.(3) Here we are dealing with a terminological confusion quite typical for much of the literature in this field. The “ethnic descent” that Dumbrava mentions as a criterion of admission to citizenship in some cases and the descent implied in the ius sanguinis principle are not the same and should not be conflated. In fact, they are mutually exclusive: “descent” in ius sanguinis is about descent from a citizen, whatever his or her “ethnicity.” The “ethnic descent” used as a criterion in some cases of co-ethnic inclusion is precisely about people who are not citizens. 

The supposed historical taintedness of the ius sanguinis principle results from the conflation of these different types of “descent,” and of the related unhappy connotations of the term “blood,” which invokes associations of “race.” A lot of this confusion was created in the Brubaker-inspired debates of the 1990s about German citizenship. In a telling example, political scientist Patricia Hogwood claimed that “the concept and law of citizenship in Germany were originally formulated in the context of nation-state development based on cultural or ‘völkisch’ nationalism. … The fact that the German legal framework for citizenship and naturalisation remains firmly rooted in the jus sanguinis principle has meant that citizenship policy in Germany is inextricably entangled in concepts of ethnicity and race. … The principle of legal privilege [for ethnic Germans] on the basis of racial origins smacks of the racial policies of the Nazi period …” (my emphasis, J.P.).(4)

Yet ius sanguinis per se has nothing to do with “ethnicity” and “race.” As Dieter Gosewinkel pointed out in his important book on German citizenship, the “blood” here is a “formal and instrumental” notion, not to be confused with “substantial” blood conceptions of racial biology.(5) Those only entered German citizenship law through the Nazi Nuremberg laws. Before, a German Jew, whom the Nazis would later construe to be of a different “race” for having the wrong “blood,” would transmit his German citizenship to his children iure sanguinis, just like other Germans whom the Nazis would construe as “Aryans.” Ius sanguinis is ethnicity-blind. In fact, when young Israelis nowadays claim German citizenship with reference to an ancestor who fled from Germany, they also do so iure sanguinis. I would find it hard to interpret this as an objectionable völkisch practice. This example shows that the problem is not with ius sanguinis itself, but with the respective contexts in which it is embedded. 

Co-Ethnic citizenship is a different story

Nor is ius sanguinis particularly useful (or even necessary) for the conveying of citizenship upon “co-ethnics” in other countries. This is a whole different discussion in my opinion which cannot be used to make a case against the ius sanguinis principle. Taking again the example of Germany, the main European supplier of co-ethnic citizenship in past decades, it needs to be stressed that “ethnic Germans” from Eastern Europe did not receive German citizenship by means of the ius sanguinis of the 1913 citizenship law. This was not possible, as in most cases they had no ancestor with German citizenship to refer to. Their claim to citizenship rested on special provisions in the constitution and expellee law, which equalised the status of German Volkszugehörige with that of German citizens. 

At this point we leave the solid ground of formal citizenship and enter into the murky territory of “ethnicity.” But even here, it is not all about “descent.” While the peculiar notion of Volkszugehörigkeit is often identified with “ethnic descent,” it was much more complex than that: it was actually very much a political-plebiscitary notion predicated on self-avowal (Bekenntnis) as German to be confirmed by an “objective” criterion, which could be language, descent, upbringing, or culture (section 6 of the 1953 Federal Expellee Law).(6)  “Descent” (Abstammung) – notoriously hard to define in administrative practice – was thus neither a necessary nor a sufficient condition for recognition as a German.(7)


In sum, I would argue that the supposed “taintedness” of ius sanguinis has to do with issues not intrinsic to this principle of transmitting citizenship, namely restrictive admission practices and racially based exclusion. The issue of co-ethnic citizenship should be kept apart from this discussion altogether. History cannot provide the justification for abandoning ius sanguinis, as its use in certain problematic ways and contexts in the past does not mean it necessarily has to be used like that in the future. If complemented by other, inclusionary mechanisms of allocating citizenship in conjunction with increased tolerance for multiple citizenship it certainly remains a useful – and necessary – method of transmitting citizenship in the day and age of multiple transnational migrations.




1) The quote is from Tara Zahra, Kidnapped Souls: National Indifference and the Battle for Children in the Bohemian Lands, 1900-1948, Ithaca: Cornell UP, 2008, 3. See also Idem, The Lost Children: Reconstructing Europe's Families after World War II, Cambridge, MA: Harvard UP, 2011, 20.

2) Christian Joppke, Citizenship Between De- and Re-Ethnicization, Russell Sage Foundation, Working Paper No. 204, March 2003, 12-13. The full text of the law can be found under: http://www.gesetze-im-internet.de/rustag/BJNR005830913.html. 

3) Costica Dumbrava, Nationality, Citizenship and Ethno-National Belonging: Preferential Membership Policies in Europe, Basingstoke: Palgrave MacMillan, 2014; Jannis Panagiotidis, Laws of Return? Co-Ethnic Immigration to West Germany and Israel (1948-1992), PhD Diss., European University Institute, 2012.

4)Patricia Hogwood, Citizenship Controversies in Germany: the twin legacy of Völkisch nationalism and the Alleinvertretungsanspruch, in: German Politics 9, 3 (2000), 125-144, here 127, 132-133.

5) Dieter Gosewinkel, Einbürgern und Ausschließen: Die Nationalisierung der Staatsangehörigkeit vom Deutschen Bund bis zur Bundesrepublik Deutschland, Göttingen: Vandenhoeck & Rupprecht, 2001, 327.

6) http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl153022.pdf

7) I elaborate on the plebiscitary, quasi-“Renanian” nature of the German conception of Volkszugehörigkeit in: Jannis Panagiotidis, “The Oberkreisdirektor Decides Who Is a German”: Jewish Immigration, German Bureaucracy, and the Negotiation of National Belonging, 1953–1990, in: Geschichte und Gesellschaft 38 (2012), 503-533, esp. 511.



Family matters: Modernise, don’t abandon, jus sanguinis

By Scott Titshaw (Mercer University)


I appreciate the ideas that Costica Dumbrava and others have introduced into this debate. States’ concerns about the quality and political consequences of their citizenship are important. But citizenship is a two-way street. Our discussion of ius sanguinis laws should extend beyond the concerns of states to also consider the serious practical consequences of citizenship laws on citizens, including the long-term unity and security of their families. Families facing instability or separation because children are denied their parents’ citizenship are unlikely to be satisfied with the explanation that ius sanguinis is inadequate or historically tainted; the resulting individual sense of injustice might even discourage the loyalty and identification states seek in citizens. 

This debate about citizenship transmission is necessary because of two modern changes in the facts of life: (1) increased international mobility based on cheap and easy transportation and communication; and (2) the advent and diffusion of assisted reproductive technology (ART) and new legal family forms (e.g., same-sex marriage and different-sex registered partnership). I will address each in turn. First, I’ll explain why Dumbrava’s proposal to abandon the ius sanguinis principle is an undesirable response to increased international mobility. Second, I’ll build on Dumbrava’s and Bauböck’s recognition of the inadequacy of unlimited and exclusive ius sanguinis rules for today’s families by suggesting that ius sanguinis be modernised rather than abandoned altogether. I’ll also illustrate how citizenship in federal states can add an additional layer of complexity to any universal proposal regarding citizenship. 


Dumbrava’s proposal to eliminate the ius sanguinis principle would increase, rather than decrease, problems based on greater international mobility. It would eliminate one tool parents currently use for transmitting citizenship to children conceived through ART.  While current versions of ius sanguinis are inadequate to deal with other ART issues, that problem can be corrected. And, as Jannis Panagiotidis points out, abandoning ius sanguinis because of this inadequacy would be like “throwing the baby out with the bathwater.” Most children are still conceived through sexual reproduction rather than ART, and many of their families would be worse off without ius sanguinis. 

An example is easy to imagine. Let’s say an Indian couple moves every seven years for employment reasons. They obtain residence permits, but not citizenship, in South Africa, the United Kingdom, and the United States, in turn. They also have a child in each country. Under ius soli regimes with no ius sanguinis rules, the children of these Indian parents would each have different passports (from South Africa, the UK, and the US). This might pose no problem in the short term. But what happens if a parent dies or loses his job? 

Under a ius sanguinis regime, the surviving family members would be able to enter India and remain there together permanently as citizens.(1)

Dumbrava argues that such common citizenship is unnecessary to recognise and cement parent-child relationships if children of citizens have “full migration rights.” But “migration rights” or benefits are substantially less stable than citizenship rights. What if a non-citizen family member becomes deportable because he or she commits a crime?(2) What if both Indian parents die while the children are minors? Without ius sanguinis, the children with their different nationalities might not be allowed to remain together anywhere, let alone in India where their extended family members (grandparents, aunts and uncles) most likely live. 

Dumbrava’s proposal of a universal legal status for all children would ameliorate some of these problems, but only until each child reaches the age of majority.  At that time they might be separated from their parents and siblings. 


I agree with Dumbrava’s and Bauböck’s rejection of exclusive, unconditional ius sanguinis rules as inadequate in dealing with the consequences of ART and modern family law. 

I disagree, however, with the conclusion Dumbrava draws from his argument that “joint citizenship adds little to the legal and normative character of the parent-child relationship.” In fact, the permanence and stability stemming from common citizenship among close family members can have profound consequences for the unity required to develop and maintain family relationships.  

I also disagree with Dumbrava’s argument that “the main problem” is that ius sanguinis “is parasitic on external factors concerning the legal determination of parentage.” In fact, some federal States already delink federal citizenship determination and state or provincial family law,3) creating greater problems than do citizenship laws that reflect legal parentage. In the United States, for example, legal parentage is generally a matter of state law. Yet, the US Constitution defines citizenship as an exclusively federal matter,4) and Congress has established and revised a complex, autonomous algorithm for determining when a citizen parent transmits US citizenship to a child born abroad.(5) The problematic example Dumbrava points out regarding parents’ inability to transmit US citizenship to children conceived through ART was created by a misguided autonomous federal policy, not parentage determinations under family law.(6) It could, and should, be corrected by federal reinterpretation of its rules to rely on family law parentage determinations.(7)

Rather than misplaced reliance on family law, the problems Dumbrava and Bauböck describe regarding the application of ius sanguinis following ART are consequences of outdated family law or of international conflict-of-law issues where relevant jurisdictions define parentage differently. 

To the extent that the problems stem from conflict-of-law issues, it is worth noting that the Hague Conference on Private International Law is currently exploring whether to draft a multilateral instrument on international parentage and surrogacy, which might resolve some issues.(8)

To the extent that the problems stem from outdated family law, the best solution is to fix the family law. Family law generally reflects a more individualized, in-depth understanding of parent-child relationships than do citizenship or migration laws. Based on long experience and empirical data, family law tends to favor the stability of permanent family relationships with commensurate duties and benefits in the best interests of children. By tending to ensure the same citizenship for children and their parent(s), ius sanguinis rules also generally promote stable solutions in the best interests of children in a way that less permanent migration rules do not.   

I agree with Bauböck that multiplicity of citizenships for children is generally not a problem, and I support his call for a more generous understanding of parenthood for purposes of citizenship transmission. But I would not opt for a ius filiationis proposal if it requires an entirely independent determination of social parenthood for citizenship transmission purposes.  Officials dealing with citizenship issues are not as well suited to determine these issues as those administering family law. Also, too much generosity in this area might instigate cross-border mischief in familial disputes by “social parents.” 

Instead, I would suggest replacing all outmoded rules that fail to consider parental intent and the best interests of the child in the context of children conceived through ART, whether these are family laws determining parentage or autonomous federal citizenship laws reading ius sanguinis as a literal “right of blood.” 



(1) India would have automatically recognised these children as Indian citizens through 2004; it still recognises a greatly eased path to apply for citizenship in this context.  http://www.loc.gov/law/help/citizenship-pathways/india.php 

(2) While hardship of citizen relatives is sometimes considered, US immigration law generally requires removal of non-citizens who commit any of a long list of criminal infractions. 8 USC §1227(a)(2). https://www.law.cornell.edu/uscode/text/8/1227 

(3) A Study of Legal Parentage and the Issues Arising from International Surrogacy Arrangements, Prel. Doc. No 3C, Hague Conference on Private International Law [March 2014] 66-68 (listing Australia, Canada and the United States as examples). http://www.hcch.net/upload/wop/gap2015pd03c_en.pdf 

(4) The Fourteenth Amendment guarantees that “[a]ll persons born or naturalized in the United State and subject to the jurisdiction thereof are citizens of the United States and the state in which they reside.” Not only does this Amendment adopt a nearly absolute ius soli rule, but it clarifies that citizenship is a purely federal matter, with no meaningful state role beyond establishment of its own standards for recognising state residence.  

(5) 8 USC §§1401 - 1409. http://www.uscis.gov/sites/default/files/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9696.html   

(6) Under current US law, a genetic and legal father and/or one or more legal and “biological” mothers (i.e., genetic and gestational mother(s)) transmit birthright citizenship to children conceived through ART, but non-biological parents do not.  Scott Titshaw, A Transatlantic Rainbow Comparison: “Federalism” and Family-Based Immigration for Rainbow Families in the U.S. and the E.U., in Rights on the Move: Rainbow Families in Europe 189, 194-95 (Carlo Casonato & Alexander Schuster, eds. 2014). http://eprints.biblio.unitn.it/4448/

(7) Scott Titshaw, Revisiting the Meaning of Marriage: Immigration for Same-Sex Spouses in a Post-Windsor World, 66 Vand. L. Rev. en banc 167, 174-75 (2013).  http://www.vanderbiltlawreview.org/2013/10/revisiting-the-meaning-of-marriage-immigration-for-same-sex-spouses-in-a-post-windsor-world/ 

(8) http://www.hcch.net/upload/wop/gap2015pd03a_en.pdf 



Abolishing ius sanguinis citizenship: A proposal too restrained and too radical

By Kristin Collins (Boston University School of Law)


Costica Dumbrava maintains that ius sanguinis citizenship is a historically tainted, outmoded, and unnecessary means of designating political membership.  He argues that it is time to abandon it.  His proposal is bold, and it has significant implications for an array of policies and practices. The parent-child relationship not only serves as a basis for citizenship transmission; it also entitles individuals to immigration preferences, and – in some countries – it facilitates automatic or “derivative” naturalisation of the children of naturalised parents. In many countries that recognize ius soli citizenship, the parent-child relationship serves as an added requirement: one must be born in the sovereign territory and be the child of a citizen or a long-term legal resident. Dumbrava limits his challenge to ius sanguinis citizenship per se, and even suggests that family-based migration rights could be used to minimise the disruptive effect of abolishing citizenship-by-descent.  But his core complaints about ius sanguinis citizenship – the mismatch of biological parentage and political affinity, the difficulties of determining legal parentage – can be, and have been, levied against these various family-based preferences and statuses, which are likely found in every nation’s nationality laws. It is therefore important to consider his proposal in light of the role that the parent-child relationship plays in the regulation of migration, naturalisation, and citizenship more generally. With this broader context in mind, I concur with Rainer Bauböck and Jannis Panagiotidis that Dumbrava’s proposal rests on an under-informed assessment of the historical record. I also argue that that, as a remedy for the problems that he has identified, Dumbrava’s proposal is at once too restrained and too radical. 

The Complex History of Ius Sanguinis Citizenship

Dumbrava first argues that ius sanguinis citizenship should be abolished because, historically, it has been associated with ethno-nationalist conceptions of citizenship. I appreciate Panagiotidis’ insistence that “the problem is not with ius sanguinis itself, but with the respective contexts in which it is embedded” (1). Panagiotidis also reminds us that ius sanguinis citizenship has sometimes functioned to create political communities that draw from different ethnic and religious groups, as in the case of German Jews whose membership in the German polity was secured by the country’s ius sanguinis laws prior to the Nazi era.  I want to elaborate and underscore the importance of this point with an additional example from United States history: During seventy years of Chinese exclusionary laws, ius sanguinis citizenship provided one of the very few routes to entry, and to American citizenship, for ethnic Chinese individuals born outside the U.S.  For precisely that reason, exclusionists sought to limit or repeal the ius sanguinis statute, which recognised the foreign-born children of American fathers as citizens (2). If one expands the historical frame to include parent-child immigration preferences and derivative naturalisation, the story becomes even more complex. By 1965, the race-based exclusions and national-origins quotas had been abolished, and previously excluded Asian families began immigrating to the U.S. in unprecedented numbers (3). They were able to do so by relying on the generous family-based preferences in American nationality law, which facilitated entry, settlement, and – especially significant to this discussion – derivative naturalisation for children (4).

Even a cursory review of the historical record thus counsels a cautionary assessment of the contention that ius sanguinis citizenship’s tainted past justifies its abolition. First, calls to end ius sanguinis citizenship have their own ugly history. Second, although one cannot gainsay that, in certain circumstances, ius sanguinis citizenship has been used to maintain ethnic homogeneity, the notion that parents and children do and should share the same political affiliation has also facilitated racial, ethnic, and religious diversification of some political communities. Rather than abolish ius sanguinis citizenship wholesale, we should be alert to the ways that it can operate as a tool of ethnic exclusion and degradation in particular socio-legal contexts, and work to minimise those effects (5).

A Proposal Too Restrained and Too Radical

To be fair, Dumbrava does not extend his proposal to migration and naturalisation policies that enlist the parent-child relationship; indeed, he would preserve such migration policies. He speaks only of traditional ius sanguinis citizenship, and argues that it often fails to map on to the reality of modern family formation, making it inadequate to “deal with contemporary issues such as advances in assisted reproduction technologies” (ART), same-sex coupling and marriage, and the steady rise of nonmarital procreation. The problems Dumbrava identifies in this regard are important and difficult. But as a remedy for these problems, abolishing parent-child citizenship transmission is simultaneously too restrained and too radical. It is too restrained because, after abandoning ius sanguinis citizenship we would still be confronted with the difficulty of determining which parent-child relationships should count for purposes of regulating migration, derivative naturalisation, and (in many ius soli countries) birthright citizenship. Moreover, in all of these contexts, the “fundamental normative questions about who should be a citizen in a political community” – and about the role that the parent-child relationship should play in that determination – would persist.

At the same time, Dumbrava’s proposal is too radical. He argues that ius sanguinis citizenship is not necessary to protect children from statelessness and “adds little to the legal and normative character of the parent-child relationship.” On this point I agree entirely with Bauböck and Scott Titshaw that Dumbrava underestimates the disruptive potential of his proposal. If all countries recognised unrestricted ius soli citizenship, Dumbrava’s assertion that ius sanguinis citizenship is unnecessary to prevent statelessness would be basically correct. But, in fact, very few ius soli countries go that far. Instead, as noted, they use ius sanguinis concepts to restrict the operation of ius soli birthright citizenship, thus leaving some children at a risk of statelessness if traditional ius sanguinis citizenship were abolished. And it is not just formal statelessness that would increase in a world without ius sanguinis citizenship. Children whose citizenship does not align with that of their parents can find themselves divided by nationality from the individuals who are charged, ethically and legally, with their care. As Bauböck and Titshaw observe, in an era of voluntary and compelled migration, ius sanguinis is the most effective method of protecting against such destabilising and precarious circumstances. 

How to Modernise?

I agree with Titshaw and Bauböck that the modernisation of ius sanguinis citizenship, rather than its complete repudiation, offers a better way to address the problems Dumbrava identifies. The difficult question is how? I am hesitant to embrace Titshaw’s proposed method of modernisation, and I offer a friendly but important amendment to Bauböck’s proposal.  

Titshaw argues that the officials who administer citizenship law should adhere to the parentage determinations made by officials who generally administer family law. In the U.S., these are state-level family law judges applying state law. But domestic family law, in the U.S. and elsewhere, does not necessarily generate ideal or even tolerable outcomes on questions of citizenship. Titshaw holds up a particularly poorly drawn U.S. federal policy that regulates ius sanguinis citizenship as it applies to foreign-born children conceived using ART, but there are many examples of how the use of state family law to regulate citizenship transmission has generated equally objectionable outcomes (6).

Alternatively, Bauböck would have us adopt a “ius filiationis” standard that recognises the “social parent” or the “primary caregiver” as the parent for purposes of ius sanguinis citizenship.  He urges that this would help remedy the “mismatch between biologically determined citizenship and parental care arrangements that would also open the door to abusive claims” (7). He is correct. My concern, however, is that his emphasis on “social parenting” and “primary caregiving” is insufficient and has its own perils. First, it could increase the likelihood of abusive denials of citizenship by officials who, at least in the U.S., are often all too eager to find reasons to reject claims to citizenship (8). In the case of nonmarital children – who make up a far greater portion of the global population than children conceived through ART  – the restriction of parent-child citizenship transmission to “primary caregivers” could lead to circumspect treatment, or outright rejection, of the father-child relationship as a basis for citizenship transmission. Indeed, the primary caregiver standard could stymie the caregiving efforts of unwed fathers who are divided by nationality from their children, and hence may never be able to establish themselves as the “primary caregiver.” The emphasis on caregiving as a prerequisite could also aid unwed fathers who prefer to avoid parental responsibility by distancing themselves geographically from their children. The result: a ius sanguinis citizenship regime that would buttress gender inequality by undermining men’s parental rights and helping them to avoid their parental responsibilities (9). Moreover, and regardless of one’s view of the equities as between parents, it is ultimately the nonmarital child’s citizenship and migration rights that could be destabilised, depending on how officials understood the concept of “social parent.” Dumbrava recognises the inequities associated with “the differential treatment of children born within and out of wedlock with respect to access to citizenship,” but his solution – to abolish parent-child citizenship transmission altogether – would give cold comfort to nonmarital children and marital children alike. 

This is not an endorsement for a purely genetic model of citizenship transmission. Despite the references to “blood,” ius sanguinis citizenship has never rested on purely biological conceptions of citizenship. Traditionally, marriage was fundamental to the ability of fathers to secure citizenship for their children, and – at least in the development of U.S. law – the presumption that the mother is the sole caregiver of the nonmarital child led to the recognition of the mother-child relationship as a source of citizenship for foreign-born nonmarital children (10). Rather, I suggest that – unless and until we move beyond citizenship as the enforcement mechanism for basic human rights, and beyond the family as a foundational source of material and psychological support for children, we cannot overstate the importance of the generous recognition of the parent-child relationship for citizenship transmission. The modernisation of ius sanguinis citizenship should thus include the recognition of “social parents” and parents with “custodial rights”– as Bauböck rightly asserts – and also recognition of all who can be held legally responsible for a child’s care or support. Dumbrava may be unhappy that the whims of parents, people’s reproductive choices, and factors beyond the control of the individual would continue to determine membership in a political community. But it is precisely because citizenship designations rest on factors such as these that I wholly agree with his admonition that we channel our efforts “towards consolidating democratic institution and promoting citizenship attitudes and skills among all those who find themselves, by whatever ways and for whatever reason, in our political community.”



1) See Jannis Panagiotidis, ‘Tainted law? Why History Cannot Provide the Justification for Abandoning Ius Sanguinis’, in EUDO Citizenship Forum.  

2) For a discussion of these laws and efforts to restrict the recognition of ethnic Chinese individuals under the ius sanguinis citizenship statute, see Kristin A Collins, ‘Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation’ (2014) 123 Yale Law Journal 2134, 2170-2182.  Starting in 1934, the ius sanguinis statute also allowed American mothers to transmit citizenship to their foreign-born children.  See id. at 2157. 

3) See David Reimers, ‘An Unintended Reform: The 1965 Immigration Act and Third World Immigration to the United States’ (1983) 3 Journal of American Ethnic History 9, 23-24; Bill Ong Hing, Making and Remaking Asian America Through Immigration Policy, 1850-1900 (Stanford UP,1999), 81-120.  

4) See, for example, Immigration and Nationality Act of 1952, 66 Stat. 163, 245, § 323. 

5) A particularly notable example of how ius sanguinis principles can operate as tools of ethno-racial exclusion is the 2013 ruling of the Constitutional Tribunal of the Dominican Republic, TC/0168/13, which effectively expatriated ethnic-Haitian individuals born and residing in the D.R., leaving hundreds of thousands of people stateless.  

6) For example, in 1940 the federal ius sanguinis citizenship statute was amended to include the nonmarital children of U.S. citizen fathers under certain circumstances, such as when the father had “legitimated” the child. Federal officials turned to the law of the father’s domiciliary state to determine whether legitimation had, in fact, occurred.  In the 1940s and 50s, marriage to the child’s mother was a very common mode of legitimation, but federal officials making citizenship determinations would not recognise an interracial marriage as the basis of a child’s citizenship claim if the father’s home state banned such marriages – and many did. See Collins, ‘Illegitimate Borders’, above n 2, at 2210. 

7) Rainer Bauböck, ‘Ius Filiationis: A Defence of Citizenship by Descent’, EUDO Citizenship Forum.  

8) See, for example, Saldana Iracheta v. Holder, 730 F.3d 419 (5th Cir. 2013). 

9) I develop this argument in ‘When Fathers’ Rights Were Mothers’ Duties: The Failure of Equal Protection in Miller v. Albright’ (2000) 109 Yale Law Journal 1669, 1699-1705, and in ‘Illegitimate Borders’, above n 2, at 2230-34. 

10) See Collins, ‘Illegitimate Borders’, above n 2, at 2199-2205. 



Citizenship without magic

By Lois HarderUniversity of Alberta


I share Costica Dumbrava’s critique of ius sanguinis citizenship, and ultimately what is, I think, his rejection of birth as the basis for political membership generally. Of course, there are issues of practicality - of the world as we find it - that might limit whether and how one would advance the abolishment of birthright citizenship in light of specific political dynamics. But it is precisely those practicalities, and the near unthinkability of alternatives to birth-based citizenship that demand our interrogation of birthright in the first instance. As Joseph Carens has argued with respect to his advocacy of open borders, “even if we must take deeply rooted social arrangements as givens for purposes of immediate action in a particular context, we should never forget about our assessment of their fundamental character. Otherwise we wind up legitimating what should only be endured.”(1)

In his contribution to this forum, Rainer Bauböck defends birthright citizenship and argues that in both of its iterations (ius sanguinis and ius soli) it avoids political division and “creates a quasi-natural equality of status” among citizens who are entitled to claim it. But what about the inequality that divides the entitled from the unentitled? Political communities may be unavoidably bounded, but if a normative commitment to human rights is our guiding frame, it seems incumbent upon us to advance methods or prospects for membership that reduce the barriers to belonging as much as possible. Moreover, as Jacqueline Stevens trenchantly observes, in defining the bounds of equal citizenship, borders also form the boundaries of our non-emergency expressions of compassion.(2) To the extent that birthright entitlement advances a seemingly unassailable claim to exclusionary membership, its advocacy runs counter to a broader commitment to humanitarianism. 

Bauböck’s description of birthright citizenship evades the fact that establishing citizenship through birth, as with any other basis for membership, is an inherently political decision. One of the central appeals of birthright is that it involves innocent, vulnerable babies, infants who are not (yet) marked by misdeeds, criminality, inadequate knowledge or commitment, or the wrong ideological proclivities. It is this innocence that helps to obscure the profoundly political basis of birthright; that makes it possible to describe birthright citizenship as avoiding political division and establishing a quasi-natural equality. However, the use of criteria of birth to determine political membership – whether it is birth to a citizen parent (variously defined) or birth in the territory (variously defined) – is not innocent. Prevailing views about

•   wedlock and patriarchal forms of social organisation (e.g. unwed mothers having responsibility for their children and conferring citizenship, but unwed fathers having no such responsibility or capacity);

•   the relative significance of biological and social parenting as well as gender and sexuality (can a lesbian co-mother confer citizenship on her genetic progeny to whom she did not give birth – just as fathers do?);

•   national attachment (is this child born abroad as second or subsequent generation?); and 

•   how generous territorial definitions should be (is a child born to a Ugandan mother on an American airline flying in Canadian airspace from Amsterdam to Boston a Canadian? Answer = yes)(3)

all play out in the rules that determine birthright entitlement. The magical power of birthright citizenship is that it makes it possible for us to know and rehearse these rules while simultaneously making birthright seem straightforward, static and apolitical.  In contrast to citizenship debates that engage migration, legal and illegal status and naturalisation, birthright citizenship makes these political choices disappear with a wave of a wand. 

I am currently researching a book on the lost Canadians. These are people who thought they had a birthright claim to Canadian citizenship, but subsequently learned that they were mistaken. Their difficulties arose for various reasons, and have now largely been resolved through statutory amendment (a rule change). In making their case to Parliament, the courts and the media, their primary, and highly successful, strategy, was to denigrate the rule-boundedness of “mean-minded bureaucrats” and advance the merits of their claims through appeals to lineage and blood-based belonging.(4) Despite being born in the UK, residing in Canada for five years as a small child, and having subsequently lived in the UK for six decades, one such lost Canadian insisted, “I, sir, am a Canadian. To the roots of me, to the spirit of me, to the soul of me, I'm Canadian.”(5) This impassioned claim to Canada – not exactly your ‘go to’ example of an ethnic nation – nonetheless succeeds as a rhetorical strategy because it re-enchants the nation,(6) underscoring the country’s desirability to the Canadian public, and insisting that this connection is an essential feature of her identity. This is a logic that only works in a world of birthright citizenship. And it is a strategy that eventually succeeded in securing legislative amendments, because the birth-based claims of the lost Canadians (and not necessarily residency or connection) carried an overwhelming political potency. 

To the extent that birthright citizenship enables progressive people to cordon off a substantial portion of membership determination from a potentially nasty political debate, one can certainly understand its attractions. But the occlusion of politics with an unsupportable appeal to nature is ethically dubious. If we are committed to democratic equality, we need principles to manage how we live together that refuse the privilege of birth over naturalisation, and that require us to come to terms with our mortality.(7) Political membership should be a lively, on-going process of negotiation in which everyone has a stake. Some critics might argue that abandoning birthright citizenship and its intergenerational character will create the conditions for decision making in which we are no longer future-oriented, or indeed, that we will neglect the lessons and obligations of our past. If our children do not have a stake in the polity to come, why should we commit ourselves to making it better? This kind of argument is morally bereft. We can continue to care about the future and attend to the damages we, and our ancestors, have wrought, even if, or precisely because, our political membership is limited by our mortality. It was, of course, ever thus.



1. Joseph Carens, The Ethics of Immigration (New York: Oxford University Press, 2013), 229.

2. Jacqueline Stevens, States without Nations: Citizenship for Mortals (New York: Columbia University Press, 2010), 9.

3. Michael Levenson, “Birth and joy midflight” Boston Globe 1 January 2009. Online: http://www.boston.com/news/local/massachusetts/articles/2009/01/01/birth_and_joy_midflight/?page=full

4. Canada, 26 February 2007, House of Commons Standing Committee on Citizenship and Immigration 39th Parliament 1st Session no. 38. (at 11:50)

5. Canada, 26 February 2007, House of Commons Standing Committee on Citizenship and Immigration 39th Parliament 1st Session no. 38. (at 11:45)

6. Bonnie Honig, Democracy and the Foreigner. Princeton: Princeton University Press, 2001, 74.

7. For a full elaboration on the dangers of intergenerational citizenship, see Stevens, 2010.




The Janus-face of ius sanguinis: protecting migrant children and expanding ethnic nations

By Francesca Decimo (University of Trento)


 Costica Dumbrava’s proposal for abandoning ius sanguinis is timely and bold. My intuition is to reject his suggestion that children’s citizenship might be disconnected from that of their parents, but to join his advocacy for a radical rethinking of the ius sanguinis principle with a view towards eliminating it once and for all. These are rather contrasting stances in relation to the same principle. Let us see if the apparent contradiction can be resolved.

To begin, let us consider the element of Costica Dumbrava’s proposal that has elicited most attention and controversy among the respondents, but was picked up and expanded by Lois Harder, namely the assertion that granting citizenship at birth is unnecessary and, above all, that making children dependent on the legal status of their parents exposes them to a form of vulnerability. The idea of postponing the acquisition of citizenship until adulthood, taking into account birthplace and residence or possession of the appropriate attitudes and skills, derives from the classic opposition between ius sanguinis and ius soli according to which the former is considered ethnic and exclusive while the latter is considered civic and inclusive. Yet Rainer Bauböck’s comments on this point explain how, in the absence of parental transmission of citizenship to children, ius soli and ius domicilii can generate individual and familial conditions that are both legally paradoxical and morally unfair.

I share the doubts and critiques raised by Rainer Bauböck, Scott Titshaw and Kristin Collins regarding the alleged emancipatory value of a citizenship system that disconnects children from their parents. Particularly, I consider any legal system that fails to specifically protect the relationship between parents and children to be highly risky. Indeed, who should children depend on if not their parents? Dumbrava’s proposal that children might instead be subject to, and protected by, a kind of international law faces the problem of subordinating the individual and familial reproductive spheres to institutional logics. 

As Luc Boltanski (1) has noted, the event of birth is inextricably linked to the definition of belonging and social descent – and therefore legal, political, cultural, national, etc. descent as well. Historically, devices for legitimating the procreative event were provided by religion, ancestry, the nation-state and, in more recent times, a long-term relationship among a couple. In a scenario in which parentage and citizenship are not tightly connected from the beginning, the risk is not only that of generating stateless children but also an excess of state power. Even after World War Two, the Catholic Church in Ireland took children considered illegitimate away from their unmarried mothers. It was nationalist demographic policies, both in Europe and overseas, that shaped the reproductive choices of individuals and families during the 20th century with a view to producing children for the fatherland. We might recall these policies when interpreting some recent nationally-oriented arguments encouraging the children of immigrants to rid themselves of the burden of their cultures of origin in which their inadequately assimilated mothers and fathers remain stuck(2). With this in mind, do we really want to define children’s citizenship irrespective of their parents’? Do we really want to shift the task of determining the legitimate membership of our offspring from relationships to institutions?

The considerations made thus far therefore lead me to agree with those who have argued that, as long as the system of nation-states regulates our rule of law, children’s citizenship must be linked from birth to that of their parents.

At the same time, it seems to me that ius sanguinis is a legal instrument which, especially in a global context of increased geographical mobility, opens the way to policies of attributing nationality that go far beyond protecting the parent-child relationship. This point relates to Dumbrava’s observation that ius sanguinis is historically tainted that was critically addressed by Jannis Panagiotidis but has not yet been decisively refuted. 

As scholars have noted, ius sanguinis makes it possible to recognise a community of descendants as legitimate members of the nation regardless of its territorial limits, but that is not all. This principle has been used to grant the status of co-national to individuals dispersed not only across space but also across time, leading to the construction of virtually inexhaustible intergenerational chains(3). This principle is based on blood, identified as the essential and primordial element of descent, belonging and identification. It is true that this potential for unlimited intergenerational transmissibility is effectively defused by the fact that many countries interpret ius sanguinis narrowly, applying it generally only up to the second generation born abroad. And yet, is this limit enough to bind and delimit the potential of ius sanguinis? In national rhetoric the image of a community of descendants continues to exert a powerful appeal that goes beyond the attribution of birthright citizenship. In historical emigration countries - but also others(4) -, ius sanguinis as a legal practice is used to grant preferential conditions and benefits to descendants as part of the direct transmission or ‘recovery’ of ancestral citizenship well beyond the second generation(5). Generational limits in the granting of citizenship to descendants can thus be bypassed because, in principle, ius sanguinis itself poses no particular restrictions in this regard.

The most controversial aspects of ius sanguinis emerge when this principle ends up competing with ius soli or ius domicilii, that is, when individuals born and raised elsewhere enjoy a right to citizenship in the name of lineage and an assertion of national affiliation while immigrants who participate fully in the economic, social and cultural development of the country are denied this same right or face serious obstacles in accessing it. In such context  — Germany in the past and Italy today – the right to citizenship effectively becomes a resource which, like economic, human and social capital, is distributed in a highly unequal way, benefitting certain categories of people – ‘descendants’ – at the expense of others – ‘foreigners’.

In view of its unlimited intergenerational potential, I conclude that, if its purpose is merely to bind children’s citizenship to that of their parents, ius sanguinis as a legal instrument suffers from ambiguity and disproportionality. All of these critical points seem to be implicitly overcome in Bauböck’s proposal of a ius filiationis principle, which would focus entirely on linking children’s citizenship to that of their parents, especially for migrants and non-biological offspring. Under a different name and with distinct content, does this move not suggest that, rather than modifying or modernising ius sanguinis as advocated by Rainer Bauböck and Scott Titshaw, it is time to abandon it once and for all, adopting in its place a principle that explicitly protects parentage and citizenship in contexts of geographical mobility instead of linking it to genealogical lineage and nationhood?



(1) See Boltanski L. 2004 La condition foetale. Paris: Gallimard.

(2) See Hungtinton S. 2004 Who are we? New York: Simon and Schuster

(3) See Brubaker R. 1992 Citizenship and Nationhood in France and Germany, Cambridge, Harvard University Press

(4) Joppke’s comparison of three highly divergent countries, France, Italy and Hungary, is quite effective in shedding light on this issue in Joppke C. 2005 Selecting by Origin, Cambridge, Harvard University Press, pp. 240-250

(5) For an in-depth analysis of the Italian case, see Tintori G. 2013 Naturalisation Procedures for Immigrants – Italy, Fabruary, EUI, EUDO Citizenship Observatory



The prior question: What do we need state citizenship for?

By David Owen (University of Southampton)

In his kick-off contribution, Costica Dumbrava offers a threefold critique of ius sanguinis as a norm of citizenship acquisition. In reflecting on this critique, I share the scepticism expressed by Rainer BauböckJannis PanagioditisScott Titshaw and Kristin Collins. In particular I would note, along the lines of Titshaw’s Indian family example, that the abolition of ius sanguinis would have led in my own family context to four siblings, of whom I am one, being split among three different nationalities: Nigerian, British and Malaysian). However rather than address Dumbrava’s critique head on, I want to suggest that the kind of critique of ius sanguinis that he offers – and the same point would apply to the critique or defense of any of the classic membership rules taken singly as free-standing norms – gets things moving askew from the start. To see this, one needs to take a step back and situate this debate within a slightly different context. When asking what citizenship rules we ought to endorse or reject, we ought to begin with a prior question: ‘what do we need state citizenship rules for?’ 

In a world of plural autonomous states, there are two basic functions that such rules are to play: 

(1) to ensure that each and every human being is a citizen of a state and hence that everyone has, at least formally, equal standing in a global society organised as a system of states;

(2) to allocate persons to states in ways that best serve the common interest, that is, where this allocation supports protection of the fundamental interests of individuals, the realization of the common good within states and the conditions of cooperation between states.

A plausible response to these requirements is a general principle that Ayelet Shachar (2009) calls ‘ius nexi’ which highlights the importance of a genuine connection between persons and the state of which they are citizens. The notion of ‘genuine connection’ can be glossed in terms of Bauböck’s “stakeholder” view which proposes that those and only those individuals have a claim to membership of a polity whose individual autonomy and wellbeing is linked to the collective self-government and flourishing of that polity (Baubock 2015). It seems to me that we should see ius soli, ius sanguinis and ius domicilii under the general principle of ius nexi as denoting different routes through which a genuine connection is presumptively established: through parental citizenship, through place of birth and through residence. 

Seeing each of these rules under this more general principle, rather than seeing each as a single free-standing norm, makes clear two points that are salient to this discussion. First, that in adopting any of these rules we are not reifying ‘blood’ or ‘territory’ or ‘residence’. We regard them instead simply as acknowledgments of the diverse ways in which ius nexi may be given expression – and we need each of them if we are to do justice to the relations of persons to states. Second, that each of the ius soli, ius sanguinis and ius domicilii rules should be qualified by the general principle of ius nexi that they serve. So, for example, an unlimited ius sanguinis rule or a ius soli rule that included a child born to visiting tourists or a ius domicilii rule that granted citizenship after three months residence would be incompatible with the overarching ius nexi principle.

Still it would be in line with Dumbrava’s argument for him to object that the ‘birthright’ rules of ius soli and ius sanguinis can only operate on the basis of the general presumption that parental citizenship and place of birth establish a genuine connection, so why not wait until the children reach their majority? Here I concur with the view advanced by Bauböck that the adequate protection of children’s rights implies that ‘children need not only human rights, they also need their parent’s citizenship’ (p.9) Titshaw’s example of the serially mobile Indian family and my own peripatetic family history suffice to make this point. Contra Harder, I don’t think that ‘birthright’ rules disguise the political character of membership norms, rather they acknowledge important interests of children, parents and states. Harder’s stress on the relationship of those entitled to citizenship of a given state and those not so entitled doesn’t provide reasons to drop either ius soli or ius sanguinis, what it does is provide reasons for relatively generous ius domicilii rules, of rights to dual/plural nationality and of a more equitable distribution of transnational mobility rights. 

And perhaps there may be a clue here to an unstated background commitment of Dumbrava’s critique. If we ask under what, if any, circumstances in a world of plural states, it could make sense to abolish ius sanguinis rules, then I think that the only answer that has any plausibility is a world of open borders characterised by rapid access to citizenship through ius domicilii rules.  It may even be plausible that the abolition of ius sanguinis rules would generate political support for more open borders given the problems liable to be posed for sustaining the human right to a family life after the removal of such rules. Whether this is a prudent way of seeking to realise such a world and whether such a world is desirable are, of course, further questions. 



Bauböck, R. (2015) ‘Morphing the Demos into the Right Shape. Normative Principles for Enfranchising Resident Aliens and Expatriate Citizens’ Democratization, Volume 22, Issue 5, 2015: 820-839, DOI:http://dx.doi.org/10.1080/13510347.2014.988146.

Shachar, A. (2009) The Birthright Lottery, Cambridge, Mass., Harvard University Press.


No more blood

By Kerry Abrams (University of Virginia School of Law)


Problems have plagued the ius sanguinis principle—the transmission of citizenship from parent to child— for as long as it has existed. Costica Dumbrava is surely correct that the time has come to ask whether ius sanguinis is still necessary. But the core problem with ius sanguinis, I would argue, is not that it uses the parent-child relationship to determine membership but that it overemphasizes the importance of the genetic tie to this relationship. 

The very term ius sanguinis —“right of blood”—makes the genetic tie the sine qua non of belonging. It is this obsession with genetic purity that has linked ius sanguinis to tribalism, xenophobia, and even genocide. This problem, I believe, is distinct from the very real need to ensure children’s access to the same geographic territory and legal system as that of their parents. Rainer Bauböck’s proposal for a “ius filiationis” based on family association rather than genetic ties would excise many of the problems caused by a focus on blood while protecting the parent-child relationship and the stability for children that flows from it.

Let me explain in more detail why I think that retaining recognition of parent-child relationships while abandoning the other features of ius sanguinis is sensible. At first glance, protecting the tying of children’s citizenship to that of their parents may appear problematic because of that relationship’s historical ties to property ownership. But a closer look shows that children really do deserve different legal treatment than adults, and ius filiationis is one critical way the law can recognise that difference. 

Ius sanguinis feels retrograde today because it developed during a time in which relationships between parents and children, as well as relationships between husbands and wives and masters and servants, were much more akin to property-chattel relationships than we understand them to be today. Today’s family law was yesterday’s law of the household, which set forth entitlements and obligations based on reciprocal legal statuses – parent and child, husband and wife, master and servant, master and apprentice (and sometimes master and slave).  Each of these relationships was hierarchical, involving responsibilities on the part of the superior party in the hierarchy (father, husband, or master) and obligations of service on the part of the inferior party (child, wife, servant, apprentice, or slave).(1) The inferior party derived identity from the superior: a wife or a child’s nominal citizenship often followed that of the husband or father, but this identity did not confer the same rights enjoyed by the superior party. In early America, for example, male citizens were often entitled to the right to vote, right to contract, and right to own property (in fact, ownership of property was often a prerequisite for voting) but their wives – also technically citizens – were not entitled to any of these rights. Their political participation took the form of providing moral guidance to their husbands and raising virtuous sons who could themselves exercise political power.(2) 

Today, we no longer think of citizenship in this way. The rights conferred by citizenship are understood in Western democracies as universal. If, for example, I become a naturalised U.S. citizen, the same neutral voting laws apply to me that apply to any other citizen, regardless of my gender, marital status, race, or national origin. Likewise, laws that imposed derivative citizenship on wives, and even laws that expatriated women upon marriage – both of which used to be widespread – are no longer the norm. In many parts of the world, women are no longer understood as intellectually and financially dependent on their husbands but instead as autonomous adults, capable of making their own economic, moral, and legal decisions, including the decision to consent to citizenship or renounce it. And even more dramatically, we no longer think of servants as deriving legal identity from their masters; instead, workers are free to participate in free, if regulated, labour markets and their citizenship status is independent of their employee status.(3)

The one legal distinction, however, that all countries still maintain in determining the capacity to exercise the rights associated with citizenship is age. Children are generally considered to be incapable of giving legal consent and in need of legal protection. The particular age at which they become capable of reasoning is contested, but it is uncontestable that a newborn cannot care for himself nor meaningfully choose a nationality. In many circumstances, the law provides the protection children need by requiring children’s parents to provide for them, care of them, and make decisions for them; in some instances, the state takes on this responsibility (foster care and universal public education are both examples). Children occupy a very different legal space than women or workers, one that makes them vulnerable when their ties to their parents are weakened. Providing children with a citizenship that they can exercise simultaneously with that of at least one of their parents is a critical protection for their wellbeing. We can believe this to be so while simultaneously rejecting the traditional hierarchies of parent-child, husband-wife, and master-slave. The United Kingdom’s move away from conceptualizing parent-child relationships as “custodial,” property-like relationships and instead describing them as involving “parental responsibility” is a good example of this shift. The emphasis has changed from ownership and control to care and protection.

If, then, we still need a form of parent-to-child citizenship transmission, is ius sanguinis as traditionally understood what we need? Scholars, courts, and government agencies often take ius sanguinis literally, as the “rule of blood.” But I think that rigidity is misplaced. Even centuries ago the notion of ius sanguinis meant something distinct from a pure genetic tie. For men, who could never be certain of their child’s paternity, transmission “through blood” often really meant transmission through choice. A man chose to acknowledge his children by marrying, or already being married to, their mother. Children born to unmarried mothers generally took on the citizenship of their mothers, not their fathers, regardless of whether the father was known. The notion of “blood,” then, was complicated by the requirement of marriage for citizenship transmission through the father and the man’s unique ability to embrace or repudiate his offspring based on his marital relationship to their mother. Presumably, many children, prior to blood and DNA testing, acquired citizenship iure sanguinis when there was actually no blood tie, sometimes in circumstances where the father was ignorant of this fact and sometimes where he knew full well no blood relationship existed.(4) Ius sanguinis has always been about more and less than simply blood.

Thus, Bauböck’s notion of ius filiationis seems to me both the most appropriate form today for citizenship transmission from parent to child to take, and a more accurate description of what really occurred historically. As I see it, the most challenging obstacle to implementing a ius filiationis system is that birthright citizenship is fixed in time. Courts are not in a position to predict on the date of a child’s birth the adult who will ultimately assume parental responsibility for a child, but they can determine who the genetic or marital parent is. Shifting to a ius filiationis system, then, requires a multifaceted response. First, statutes outlining the requirements for citizenship transmission at birth should be amended to identify the intended parents. In most circumstances, the intended parents will be the genetic parents, but in some instances they might be someone else – for example, a non-genetic parent who contracts with a gestational surrogate or the spouse or partner of a genetic parent. Various pieces of evidence, from birth certificates to contracts to court judgments, would be necessary to determine parentage. In cases involving ART, this solution would solve many of the current problems. A genetic tie would be but one piece of evidence in determining citizenship at birth.

In addition to reforming ius sanguinis statutes, however, I believe we must also broaden the other available pathways to citizenship outside of birthright citizenship and traditional forms of naturalisation. There could be a deadline – perhaps by a specified birthday – by when a functional parent could request a declaration of citizenship for the child he or she has parented since birth. This alternative means of citizenship transmission should not substitute for birthright citizenship; as Kristin Collins points out, making citizenship determinations using only functional tests would put children at the mercy of officials seeking to deny citizenship and could disadvantage genetic or intentional fathers who may be unable to demonstrate that their care has been substantial enough to be “functional.” But combined with a robust recognition of genetic and intentional parentage at birth, recognition of functional parentage later on could serve a supplemental purpose, ensuring that children will ultimately have access to citizenship rights in the country in which their functional parents reside. Full recognition of parent-child relationships requires going beyond the moment of birth so that we can recognise the individuals who actually take on parental responsibility.

It is premature to forsake the recognition of parent-child relationships in citizenship law, not when citizenship is still the mechanism for ensuring that every human being has membership in at least one state and providing access to basic human rights. But it is time that we abandoned the idea that “blood” is the sole basis of these relationships. 



(1) Janet Halley, What is Family Law?: A Genealogy, Part I, 23 Yale Journal of Law & Humanities 1, 2 (2011).

(2) Linda Kerber, Women of the Republic: Intellect & Ideology in Revolutionary America (1980).

(3) In contrast to the independent citizenship status of workers, employer-sponsored immigration provisions may represent the vestiges of the ancient master-servant status relationship. See Raja Raghunath, A Founding Failure of Enforcement: Freedmen, Day Laborers, and the Perils of an Ineffectual State, 18 C.U.N.Y. L. Rev. 47 (2014).

(4) Kerry Abrams & Kent Piacenti, Immigration’s Family Values, 100 Va. L. Rev. 629, 660, 663, 692 (2014). 



Law by blood or blood by law?

By David de Groot (NCCR on the move, Universität Bern)


I agree to certain extent with Costica Dumbrava that ius sanguinis encompasses certain problematic issues, especially where it concerns newer forms of procreation, like IVF for lesbian couples and surrogacy. However, the origin of the problem cannot be attributed to ius sanguinis, but to non-solidarity of states that overuse the ordre public exemption for the denial of the recognition of parentage. But before delving into family relations and private international law conflicts, I would like to first argue that ius sanguinis is still the most suitable option for the main purposes of nationality law where it concerns children.


The main purposes of nationality

The commonly accepted main purposes of nationality are, first of all, that there is a territory to which an individual can always return and from which he cannot be deported, as was already pointed out by Bauböck and Titshaw; secondly, diplomatic and consular protection while being abroad; thirdly, national political participation in the state of nationality; and lastly, for EU citizens, free movement rights within the EU. 

An abandonment of ius sanguinis in favour of ius soli might lead to the situation described by Titshaw, where within the same family the children might have different nationalities, which could, for example, lead to the situation that they would have to move to different countries in case of their parents’ death while they are minor or that they might need to seek diplomatic protection from different foreign representations. Such a break-up of the family unit due to differing nationalities would certainly conflict with the right to family life. Therefore, for the purpose of preserving the unity and protection of the family, ius sanguinis is the most suitable option. If, when having attained majority the children feel that they have a closer bond with another nationality, they could still apply for naturalisation in that state. 

This bond of attachment brings me to the national political participation purpose of nationality which is connected to Dumbrava’s argument concerning the reproduction of the political community. Having the nationality of a certain state does not automatically mean integration into its society. This problem, depending on the mobility of the persons involved, does, however, not only occur with ius sanguinis and ius soli, but also with every other form of nationality transmission that one could think of. It should therefore be decided whom national political participation concerns most. If the definition of a ‘state’ refers primarily to a permanent population within its borders, long-term (non-national) residents should have national political participation rights and long-term absent nationals should not (except if they are working abroad in service of the state). National political participation rights should then be detached from nationality and therefore actually not be seen as a purpose of nationality (but that is a different discussion).  

It should however be noted that for purpose of inclusion of long-term resident families, who for some reason have not acquired the nationality by naturalisation, into the national population, a third generation ius soli or even a second generation ius soli, in cases where the first generation migrant has entered the country at a young age, would be appropriate. However, this should not come with an option requirement for dual nationals at reaching majority, as in Germany, in order to avoid a conflict of identity if one is forced to make a choice between the nationality acquired iure soli and another nationality acquired iure sanguinis. 


Non-Solidarity of States

The problems that arise when a state does not grant its nationality to a child due to non-recognition of parentage can only occur in cases where parentage has been established by another state in accordance with its national family law. In surrogacy cases this means a non-recognition of a foreign judgement or birth certificate and in cases of dual motherhood of married or registered lesbian couples a non-recognition of the extended pater est quem nuptiae demonstrant principle. The pater est principle means that the husband of the woman that gives birth to the child is automatically considered to be the father and therefore directly at birth has a parentage link to the child. Increasingly, states have extended this principle to stable non-marital relationships and to same-sex marriages.

If the child is born in the state of the discussed nationality the national family law (mostly) applies to the establishment of parentage. It would therefore not make any sense that parentage ties to a national could be established at birth by the state in question, without also granting the nationality (if ius sanguinis is applied). The problems that arise are thus nearly always recognition issues between states.

There is a general principle of recognition of a civil status which was legally established abroad. Recognition can only be refused in cases of overriding reasons of ordre public. This ordre public principle should be limited by the best interest of the child and the right to family life. It can never be considered to be in the best interest of the child to have no parents at all instead of having parents with whom (s)he has no blood ties who want to care for her or him. This has also been stated by the European Court of Human Rights in the Paradiso and Campanelli v. Italy case. In that case an Italian couple had gotten a child through a surrogacy arrangement in Russia. When they brought the child to Italy the state refused to recognise the parentage ties, took the child away and placed him under guardianship. The Court stated that Italy had failed to take the best interest of the child sufficiently into consideration when weighting it against ordre public. It had especially failed to recognise the de facto family ties and imposed a measure reserved only for circumstances where the child is in danger. Another example where the best interest of the child should prevail is when the child from a second (polygamist) marriage is put in a worse position than a child born out of wedlock. 

The problem is thus a lack of solidarity between states who do not recognise family ties legally established in another state. The parentage for the purpose of acquisition of nationality should thus be based on family law, including a more lenient approach in the private international law rules to recognition of a civil status acquired abroad.   

I therefore like Bauböck’s proposal of a ius filiationis. I see it, however, more as a change from ‘law by blood’, meaning parentage ties based on blood relationship, to a ‘blood by law’ relationship, meaning that parentage ties are seen to be established by the law. This thus means only an extension of the ‘blood’ definition. Bauböck’s fear that this could create a situation where the child could not acquire a nationality at birth, due to the complex determination of parenthood, could technically be avoided by a pre-birth determination of parentage.  


Limiting the transmission of family advantage: ius sanguinis with an expiration date

By Iseult Honohan (University College Dublin)


Costica Dumbrava has done a great service in stimulating us to reconsider the justification of ius sanguinis and to disaggregate its different forms.

I am sympathetic to critiques of ius sanguinis as a dominant mode of citizenship acquisition. Yet I acknowledge that the significance of family life for parents and children seems to offer some grounds for ius sanguinis citizenship – at least in a world of migration controls where citizenship is the only firm guarantee of right of entry to a country. I will argue here that to limit the extension of inherited privilege in this domain, however, this form of citizenship should be awarded provisionally.  

Others here have shown convincingly that there is nothing inherently ethnically exclusive about ius sanguinis. Furthermore, it does not have to be understood in terms of bare genetic descent; so sorting out the deficiencies of current ius sanguinis provision does not depend on resolving all the issues of biological parenthood raised by the new reproductive technologies.  If ius sanguinis can be detached from the strict genetic interpretation, it no longer provides a warrant for indefinite transmission across successive generations on the basis of biological descent.  Thus two of the sharpest criticisms of ius sanguinis seem to have been defused. 

It remains to consider in what way ius sanguins might be necessary. On the one hand, various forms of ius soli can be seen as giving continuity of membership for the state and security for children born in the country. For those born in the country of their parents’ citizenship there is little material difference between ius soli and ius sanguinis. But ius sanguinis citizenship may be seen as necessary when a child is born to parents living outside the state of their citizenship. Even if the child gains ius soli citizenship in the country in which she is born, this does not guarantee the security of the family. Focusing on what have been termed ‘social parenthood’, or functional parenting relationships of care, rather than simply biological descent, others here (Bauböck, Owen and Collins) have pointed to the way in which common citizenship best secures family life in allowing parents and children to stay together or move back to the country of their parent’s citizenship.  

What I want to address here is the further question: what forms or extent of ius sanguinis citizenship are warranted on the basis of this account?   

Protecting families but not privilege

We may start from the consideration that those in the position of parents have an interest in and a particular responsibility to care for their children when young, implying a clear and fundamental interest in living together and being able to move together. These can be seen as necessary conditions for realising many of the intrinsic and non-substitutable goods of family life, or what have been called ‘familial relationship goods’,  which include child-rearing and asymmetric intimacy (Brighouse and Swift, 2014). These involve agent-specific obligations that can be realised only within family relationships of care and throughout childhood (Honohan, 2009).  Thus this fundamental interest should be protected. Brighouse and Swift emphasise however, that we should not, in protecting these intrinsic goods, fail to distinguish them from other advantages external to familial relationship goods that parents can confer on their children, such as private education or concentrated wealth, which do not warrant protection (Brighouse and Swift, 2014).

Can ius sanguinis citizenship, even if not based solely on genetic descent, support such unwarranted transmission of privilege?  Citizenship grants more than the opportunity to live with and be cared for by your parents when you are a child. It provides membership of a political community and the benefits at least of entry and residence in that state, the right to participate in national elections and sometimes access to other rights. Under a regime of ius sanguinis, even understood as grounded in the rights of parents and children to share citizenship, the transmission of citizenship to children born to citizens abroad can mean that people with no connection to the country retain the benefits of citizenship, and, at the very least, can lead to a mismatch between the citizen body and the community of those who live in, and are particularly subject to, the state. Thus, life-long citizenship in the absence of real connections could well be seen as falling into the category of advantages that parents should not necessarily be able to convey to their children. 

This is not to suggest that ius sanguinis citizenship is just a form of property or unearned privilege. (cf. Shachar, 2010). But there are still concerns about how to secure the legitimate interests of parents to care for their children, and of children to be protected, without justifying the transmission of privilege.  My focus here is on considering how to guarantee the security of children to live and move with their parents through shared citizenship without supporting the unwarranted extension of privilege in the domain of citizenship. 

This suggests the following limited justification for birthright ius sanguinis citizenship - rather than the universal child status and deferred, or provisional, ius soli citizenship that Dumbrava recommends. 

Provisional ius sanguinis 

First, birthright citizenship per se is justified because people need the protection of citizenship from birth (1). Note that this is not mainly because they are children and thus innocent or particularly vulnerable (pace Harder), nor despite the fact that they are children and thus (arguably) not capable of consenting or participating politically, but while they are children, and like others, are both subject to the power of a state and in need of protection by a state. Dumbrava’s proposal that children might gain a universal status of childhood and that citizenship should depend on their being able to choose, have established a connection, and developed capacities and virtues of citizenship overlooks the centrality of the legal status of citizenship to security, and the fact that this security should not be conditional on the qualities or practices of citizens.

The specific justification of ius sanguinis citizenship then derives from the way in which common citizenship between parents and children is the most secure way of guaranteeing their ability to live and move together. This can be in addition to the citizenship the child may acquire by ius soli; dual citizenship of the state of birth and that of parents’ is not in itself problematic if a person has connections in both countries.

Because children need citizenship from birth, there is an argument for birthright citizenship; because young children need to be able to live with (and be cared for by) their parents, there is an argument for ius sanguinis citizenship at the time where this is most needed.  Both of these concerns support an award of citizenship that is not deferred, but that is also not always retained indefinitely.

It may be objected that the withdrawal of citizenship should not be lightly recommended.  Indeed this is true. But the strongest ground for withdrawal is the absence of any genuine link between a person and the state of citizenship. Thus, writing on birthright citizenship, Vink and De Groot (2010) offer a similar suggestion: ‘an alternative to limiting the transmission of citizenship at birth is the provision for the loss of citizenship if a citizen habitually resides abroad and no longer has a sufficient genuine link with the state involved’(2). Indeed they go on to say that ‘[f]rom our perspective, a provision on the loss of citizenship due to the lack of a sufficient link is to be preferred to limiting the transmission of citizenship in case of birth abroad’, on the grounds that this gives the child herself the opportunity to decide whether to establish that link, which thus should remain available until after majority, at the point when the child is better placed to make an independent decision (Vink and De Groot 2010: 12).  

Thus, the parsimonious account of ius sanguinis defended here suggests that it should be awarded only provisionally – held through childhood, but requiring the establishment of connections of certain kinds, most clearly by a period of residence in the country of that citizenship by, or soon after, majority (3). Confirmation would not depend on abjuring any other citizenship, as the aim would not be to avoid or reduce dual citizenship, but rather to reduce the numbers of citizens whose connections to a country are minimal or non-existent.  

Such a conditional citizenship could take seriously the justifiable claims of families without leading to the unwarranted extension of family advantage.



Brighouse, H., and Swift, A. (2014) Family Values: The Ethics of Parent-Child Relationships, Princeton University Press 2014.

Honohan, I. (2009) ‘Rethinking the claim to family re-unification’ Political Studies 57 4: 765-87

Shachar, A. (2010) The  Birthright Lottery,Cambridge MA: Harvard University Press.

Vink, M. P, and De Groot, G.R. (2010) Birthright citizenship: trends and regulations in Europe, EUDO Citizenship Observatory, Robert Schuman Centre for Advanced Studies, RSCAS/EUDO-CIT-Comp. 2010/8, Badia Fiesolana, San Domenico di Fiesole (FI), Italy



 (1)  Of course, not all birthright provisions apply from birth, rather than on the basis of birth,  but they generally apply from the establishment of the fact of birth, whether in the country or to a citizen.

 (2) Such provisions already exist in Belgium, Denmark, Finland, France, Iceland, the Netherlands, Norway, Sweden and Switzerland (see Vink and de Groot (2010)). In many of these cases, however, loss of citizenship can be pre-empted by submitting a request to retain it.

 (3) This would not necessarily be the only basis for retaining citizenship. If, for example, the parent(s) had returned to the country of their citizenship, this also could create a connection of their potential care in old age by adult children, which might justify their retaining citizenship.


Retain ius sanguinis, but don’t take it literally! 

By Eva Ersbøll (EUDO citizenship expert, Danish Institute for Human Rights)


There is no doubt that Costica Dumbrava has raised an important question about whether to abandon ius sanguinis citizenship. His arguments are that ius sanguinis is historically tainted and unfit to deal with contemporary issues such as developments in reproductive technologies and changes in family practices and norms; he also claims that ius sanguinis is normatively unnecessary, as it is possible to deliver its advantages by other means.

In my opinion, it is not time to abandon ius sanguinis, mainly because it is impossible to secure its advantages by other means. Admittedly, ius sanguinis, if taken literally, is unfit to deal with contemporary issues such as complex family arrangements involving, among other things, assisted reproduction technologies (ART). However, it seems possible to solve many problems by applying a modified principle of ius sanguinis translated into ius filiationis, as suggested by Rainer Bauböck and supported by most of the participants in this debate. 

What matters is, as also expressed by many authors, that children from a human rights perspective need their parents’ citizenship - or rather, the citizenship of their primary caretakers, be they biological parents or not. 

A solution to many of the problems related to reproductive technologies has been advanced by the Council of Europe, the Committee of Ministers, in Recommendation CM/Rec(2009)13 on the nationality of children: 

Member states should apply to children their provisions on acquisition of nationality by right of blood if, as a result of a birth conceived through medically assisted reproductive techniques, a child-parent family relationship is established or recognised by law (1). 

Still, it is of course necessary to examine more closely the arguments against ius sanguinis and the practical solutions to its shortcomings.

History is not an argument 

As Jannis Panagiotidis writes, history cannot justify abandoning ius sanguinis. The use of the principle may have been problematic in the past, and still, it may be all right today. Besides, as argued by Rainer Bauböck and others, it is possible to overcome ethno-nationalist dispositions by modifying a ius sanguinis principle, supplemented with ius soli and residence-based modes of acquisition. 

As things stand, ius sanguinis citizenship is in my opinion irreplaceable. It provides, in accordance with the Convention on the Rights of the Child (article 7) for automatic acquisition of citizenship by birth. In addition, it seems to be one of the most simple and secure acquisition modes when it comes to protection against statelessness, as it has the ability to protect children against statelessness from the very beginning of their life. 

What is more, it is a central international law principle. For instance, state parties to the European Convention on Nationality are obliged to grant citizenship automatically at birth to children of (one of) their citizens (if born on their territory, cf. article 6(1)).

To me, it seems risky to jettison such an effective principle anchored in binding human rights standards.

Unity of the family

Ius sanguinis is not the only relevant principle. Others, like the unity of the family, safeguard the same interests and may be applied in a broader perspective. To mention a few situations, take acquisition by adoption and acquisition by filial transfer based on the fact that the target person is a natural, adopted or foster child of a citizen. 

In addition, new automatic modes of acquisition by birth are developing. Denmark, for instance, has amended its law in 2014 to provide for automatic acquisition of citizenship by birth by children with ‘a Danish father, mother or co-mother’(2). This is an example of citizenship acquisition based on ius filiationis as advanced by Rainer Bauböck.

As Costica Dumbrava rightly anticipated, a reasonable reservation in this debate has been that the main problems connected with the development of ART do not lie with ius sanguinis citizenship but with the determination of legal parentage. Such determination may take long time and involve a number of legal uncertainties and ethical dilemmas. Still, as argued by among others Rainer Bauböck and Scott Titshaw, states have in any case to fix their family law and figure out how to determine legal parenthood. Subsequently, children’s right to their legal parents’ citizenship may not raise major problems.

Ius filiationis benefits

Developing a a ius filiationis principle may entail even more advantages. Among others, it may solve some of the problems originating from loss or so-called quasi-loss of citizenship following the disappearance of a family relationship (3). Disappearance or annulment of a family relationship may have consequences for a person’s citizenship based on that family relationship. Many states assume that if a person has acquired his or her citizenship through a child-parent family relationship that citizenship will be lost or even nullified if the family relationship disappears (4). If, however, states recognise citizenship based on social rather than biological parenthood, the threat of loss or quasi-loss may not arise in the case of disappearance of a biological family relationship. 

Human rights protection at this stage

According to the Council of Europe recommendations on the nationality of the child, quoted in the introduction, member states should apply the ius sanguinis principle in ART-cases where the child-parent family relationship is established or recognised by law. The crucial question is of course under which conditions the intended parents’ country must recognise such a family relationship if it has been legally established abroad.

David de Groot points out that states can only refuse recognition in case of overriding reasons of ordre public, and he criticises states’ overuse of the ordre public exemption for the denial of parentage. As he rightly argues, it cannot be in the best interest of the child to have no parents at all, instead of caring parents without blood ties. David de Groot refers to the 2015 judgment of European Court of Human Rights (ECtHR) in Paradiso and Campanelli v. Italy (5). Here, the Court ruled that the removal of a child born to a surrogate mother and his placement in care amounted to a violation of the European Convention on Human Rights article 8 on respect for private and family life.

In 2014, the ECtHR dealt with another case concerning the effects of non-recognition of a legal parent-child relationship between children conceived through assisted reproduction, Mennesson v. France (6). A French married couple had decided to undergo in vitro fertilisation using the gametes of the husband and an egg from a donor with the intention to enter into a gestational surrogacy agreement with a Californian woman. The surrogacy mother gave birth to twins, and the Californian Supreme Court ruled that the French father was their genetic father and the French mother their legal mother. France, however, refused on grounds of ordre public to recognise the legal parent-child relationship that was lawfully established in California as a result of the surrogacy agreement.

The ECtHR ruled that the children’s right to respect for their private life – which implies that they must be able to establish the substance of their identity – was substantially affected by the non-recognition of the legal parent-child relationship between the children and the intended parents. Having regard to the consequence of the serious restriction on their identity and right to respect for their family life, the Court found that France had overstepped the permissible limits of its margin of appreciation by preventing both recognition and establishment under domestic law of the children’s relationship  with their biological father. Considering the importance of having regard to the child’s best interest, the Court concluded that the children’s right to respect for their private life had been infringed.

The Court also dealt with the children’s access to citizenship as an element of their identity (see also Genovese v Malta) (7). Although the children’s biological father was French, they faced a worrying uncertainty as to their possibilities to be recognised as French citizens. According to the Court, that uncertainty was liable to have negative repercussions on their definition of their personal identity.

In Mennesson, the ECtHR’s analysis took on the special dimension where one of the parents was the children’s biological parent; it is, however, in my opinion difficult to imagine that the Court should reach a different conclusion in a similar case where both gametes and egg were from a donor. Paradiso and Campanelli may underpin this position that also appears to be supported by the fact that the Court has explicitly recognised that respect for the child’s best interest must guide any decision in cases involving children’s right to respect for their private life. In this context the Court has made it clear that respect for children’s private life implies that they must be able to establish the substance of their identity, including the legal parent-child relationship.  

Other ways to protect parent-child relationship

Costica Dumbrava argues that there are other and better ways to protect the parent-child relationship than through the same citizenship status, for instance by conferring full migration rights to children of citizens or establishing a universal status of legal childhood that protects children regardless of their or their parents’ status.

I find it hard to believe that any of these means can afford children a similarly effective protection of their right to a family life with their parents in their country.

Children need their parents’ citizenship¸ as pointed out by Rainer Bauböck and many others, because citizenship is a part of a person’s identity. Where and to whom one is born are facts that feed into developing a sense of belonging.  Moreover, the unity of the family in relation to citizenship secures that children can stay with their parents in their country. 

The course of events that followed the independence of women in citizenship matters seems illustrative. In Denmark for instance, when married women gained independence in citizenship matters in 1950, it was a major concern that in mixed marriages, where the spouses had different citizenship, the woman might lose her unconditional right to stay in her husband’s country. The legislator assumed that the aliens law would be administered in such a way that a wife would not be separated from her husband unless a pressing social need necessitated the separation (8). Things have, however, developed differently. Nowadays, foreigners married to Danish citizens are subject to the same requirements for family reunification as foreign couples. Thus, a foreign spouse may be expelled if for instance her Danish husband has received cash benefits within the last three years before a residence permit could be granted; notably, this may apply regardless of whether the couple has a child with Danish citizenship.

 A need for international guidelines on legal recognition of parenthood

As already mentioned, there is no doubt that Costica Dumbrava has raised an important discussion about continuous application of ius sanguinis citizenship. While there seems to be little support for abandoning the ius sanguinis principle, there seems to be almost unanimous support for modifying and modernising it. As recommended by the Council of Europe, states should apply to children conceived through medically assisted reproductive techniques their provisions on ius sanguinis acquisition of citizenship. 

The problem remains that states must establish or recognise the child-parent family relationship by law, and often, two states with different approaches are involved in the recognition procedure. Therefore, ordre public considerations may arise as demonstrated in many of the concrete cases mentioned in this Citizenship Forum. In order to achieve consensus about the recognition of a parent-child family relationship in the best interest of the child, states should engage in international cooperation with a view to adopting common guidelines – as they have done in adoption matters.



(1) See the recommendation at https://wcd.coe.int/ViewDoc.jsp?id=1563529 

(2) Costica Dumbrava gives an inadequate Danish example regarding the acquisition possibilities for children born out of wedlock. For long, such children have been entitled to naturalise regardless of residence in Denmark, although until 2013, it was a requirement that the father had (shared) custody over the child. This requirement is now repealed.

(3) See more about quasi-loss of citizenship at http://www.ceps.eu/publications/reflections-quasi-loss-nationality-comparative-international-and-european-perspective 

(4) See more about quasi-loss etc. at http://www.ceps.eu/publications/how-deal-quasi-loss-nationality-situations-learning-promising-practices 

(5) Case of Paradiso and Campanelli v. Italy, judgment of 27 January 2015 http://hudoc.echr.coe.int/eng#{"itemid":["001-150770"]} 

(6) Case of Mennesson v. France, judgment of 26 September 2014 (Final) http://hudoc.echr.coe.int/eng#{"fulltext":["mennesson"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-145389"]} 

 (7) Case of Genovese v. Malta, judgment of 11 October 2011 http://hudoc.echr.coe.int/eng#{"fulltext":["genovese"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-106785"]} 

(8) See the Danish citizenship report at http://cadmus.eui.eu/bitstream/handle/1814/36504/EUDO_CIT_CR_2015_14_Denmark.pdf?sequence=1 


Distributing Some, but Not All, Rights of Citizenship According to Ius Sanguinis

By Ana Tanasoca (University of Canberra)


In an article published in 1987 Joseph Carens famously remarked that “[c]itizenship in Western liberal democracies is the modern equivalent of feudal privilege – an inherited status that greatly enhances one’s life chances. Like feudal birthright privileges, restrictive citizenship is hard to justify when one thinks about it closely.” (1) Some 30 years after, he himself offers a justification of birthright citizenship, a change of heart and mind that he partly explains by the following: “I thought that my open borders arguments was getting at an important truth. At the same time, I recognized that it was not a practical proposal and that it did not provide much guidance for actual policy issues…”; “In thinking about what to do in a particular situation, we have to consider questions of priority and questions of political feasibility, among other factors. One cannot move always from principles to a plan of action.” (2) Yet succumbing too much to such feasibility constraints, to use a popular term in the field, is dangerous. Moral (political) theorizing should not be too tightly hemmed in by empirical facts. Rather it should be the other way around, insofar as our moral and political theory aims to tell us what existing empirical facts we should strive to change or overcome.

That is why Costica Dumbrava’s critique of the ius sanguinis principle of citizenship ascription is, in a way, a much-needed intervention.(3) While I overall agree with Dumbrava’s argument that ius sanguinis is unable to cope with the diversification of family structures and not that morally appealing to begin with, I disagree with him on the details. I disagree especially with his background assumption that family ties (although not exclusively genetic, as it is presently the case) must play a salient role in the distribution of citizenship – although in the second part of this contribution I do offer a potential defence of his view against what is probably the strongest objection to his argument, which is that the abolishment of ius sanguinis would split families apart.

The main question is: Why should we insist on ius sanguinis except because it would ensure that nobody is stateless, that is, that everyone’s human right to citizenship is satisfied? And insofar as statelessness can be equally avoided via ius soli, why should blood ties create an entitlement to citizenship?

The problem of making citizenship dependent on family ties

Dumbrava notices that ius sanguinis is unable to cope with the increased diversification of family structures made possible by the assisted reproduction technologies (ART). Yet there are solutions to that problem. 

One would be, as Scott Titshaw notices, to reform family laws as to recognise diverse forms of parentage. Another one would be to replace ius sanguinis with ius filiationis, as Rainer Bauböck proposes. If the purpose of upholding ius sanguinis citizenship is to recognise and protect the family, we should replace it with more reliable indicator(s) of parenthood in the case where parenthood is no longer uniquely a matter of biology. As Kerry Abrams argues, the recognition of parenthood now requires “going beyond the moment of birth.”

Notice, however, were multiple indicators of parenthood to be accepted, those individuals born via ART might be entitled to multiple citizenships. They might, for example, be entitled to the citizenship of the egg donor or the sperm donor or the surrogate mother, as well as to the citizenship of those who intend to raise the child. Such a situation may be deemed problematic in various respects: first because it would create great inequalities; second, because it would end up trivializing citizenship if all types of parenthood (e.g., the relationships the surrogate mother, the egg donor or the sperm donor, and the intended parents have with the child) would be treated as equally morally relevant and therefore worthy of state recognition. 

Dumbrava also bemoans ius sanguinis as failing to capture the political function of citizenship. If we grant citizenship to the children of citizens because we expect such children to develop the attitudes and skills required for political participation in their parents’ state, why not wait to confer citizenship until these attitudes and skill are actually confirmed? And what would happen if they never develop these skills and attitudes? Should people be deprived of their birthright citizenship altogether, or perhaps only of their political rights? Besides, while we might have a clear idea of what skills (e.g., reading and writing to enable voting) citizenship requires, what can we say of the attitudes citizens should display? Should apathetic voters be stripped of their political rights for failing to display the right attitude towards their right to vote? According to Dumbrava’s reasoning, perhaps we should.

But the main problem both with Dumbrava’s critique and the other contributors’ accounts is that they conceive of citizenship as primarily reflecting a bond (genetic or affective or intentional) between two individuals—the parent and the child – and not as a bond between an individual and a state, or an individual and a community. As such, it overlooks the political nature and function of citizenship.  It is also likely to leave us with a very limited, rigid, and exclusionary conception of the demos, one that is at the same time unjust and inefficient. As Rainer Bauböck put it elsewhere, “[n]ormative principles for membership must instead lead to boundaries that avoid both under- und over- inclusiveness,” (4) particularly in the context of increased global mobility.

In his contribution to this forum, however, Bauböck argues that birthright citizenship creates a “quasi-natural equality of status” among those entitled to it. He represents it as avoiding divisions, by making citizenship part of people’s unchosen and permanent personal features, namely, where and to whom one is born.(5) Yet as such it creates exclusion and inequality between those entitled and those unentitled that can be hard to justify or overcome, as Lois Harder rightly notices. Why should the son of a citizen of state A be entitled to citizenship in that state, but not a regular immigrant residing for years in state A, paying taxes there and having virtually all of his interests deeply affected by the institutions of state A? While the first has unconditional and automatic access to citizenship – a right to citizenship in virtue of his blood ties to another citizen – the second has to apply for naturalisation, which is subject to the state’s discretionary powers. That is, his residence in that state, contributions to the community or his interests being affected by that state’s institutions, do not automatically ground any right to citizenship for him in the same way blood ties do for the citizens’ progeny.

Why should the boundaries of the demos be defined by family ties, rather than social or political kinship? By ascribing citizenship on the basis of blood ties we conceive of political communities as big extended families rather than communities gathered around common interests, values, and goals. Such a conception of the demos is disrespectful of individual consent (no one consents to being born, to having these parents rather than others or to the colour of their passport).  It attaches too much value to contingencies and too little value to individual choices. A political community based on ancestry is, after all, just an overinflated dynasty. 

Limiting the scope of ius sanguinis

While abolishing ius sanguinis might be a good idea, we could nonetheless be worried that the transition costs would outweigh potential benefits. After all, most families today are still founded on blood ties. Abolishing ius sanguinis altogether could create situations where parents and children are not citizens of the same state. Such policy, it is argued by several contributors, would have the disruptive effect of potentially separating families, preventing parents from discharging their parental duties and leaving children deprived of the care they are entitled to. (Of course, nothing prevents parents from applying for a visa or for citizenship if they wish to reside or share a citizenship with their progeny; but let us assume that the parents do not have the means to do that, or that even doing that would not guarantee that they can be reunited with their child immediately as we would wish.) This is, I think, the strongest argument against Dumbrava’s proposal. 

One solution would be, of course, to replace ius sanguinis with another principle for citizenship allocation, perhaps affected interests or perhaps ius domicilii. As children’s and parents’ interests are interdependent, the affected interests principle would ensure that children and parents are members of the same state. So would ius domicilii, at least in cases where parents and children are currently domiciled in the same state (although it would provide no citizenship-based grounds for family reunion, in cases where they are not).

My proposal, however, takes a different tack.  Notice that in a world with genuinely open borders we need not be worried that parents and children would be separated if they are citizens of different states.  The solution I propose would therefore be to limit the scope of ius sanguinis – that is distribute some, but not all rights traditionally associated with citizenship, on the basis of ius sanguinis. This would be an appealing compromise, insofar as some of us may think citizenship should not be distributed on the basis of blood ties, while nonetheless accepting that blood ties are one (albeit not the only) relevant ground for the distribution of some categories of rights. 

As Bauböck notices in his contribution, immigrant minors who are EU citizens have a “right to stay” that protects their primary caregivers from deportation. Yet, most likely, this policy is a recognition of an entitlement to care that the child has – not a recognition of a right the parents have to stay strictly in virtue of their blood ties to the child.  Blood ties may simply serve as the operational indicator of the primary caregivers. 

My preferred solution, however, would entitle a person to the limited enjoyment of some rights in a state, on the basis of having blood ties to someone who is already a citizen of that state. I primarily have in view, among that limited subset of rights, the right to enter and leave the state and the right of residence. By “limited” I also mean that the enjoyment of these rights, purely on the basis of ius sanguinis, should be time-constrained. (6) 

Take the case of minors having a different citizenship from their parents. My proposal would be:  either the parents should be granted extensive residence rights, until the minor reaches adulthood as in the case above; or else the minor should be granted these rights, provided the parents wish to remain in their country of citizenship. Consider the case of a couple, both citizens of state A, who move to state B and give birth there to a child, who becomes via ius soli citizen of B. Under my proposal, the parents would be automatically entitled to residence in state B until the child is 18, provided the family decides to reside in state B; equally, the child would be automatically entitled to reside in state A until 18 if the family decides to reside there. 

Things would be different in the case of adults. Say my mother and I are citizens of different countries, she of state A and I of state B. Under my proposal, I as an adult would not be entitled to all the current rights of citizenship in state A on the basis of ius sanguinis. Still, I may nonetheless be automatically entitled on the same ground to a right to freely enter state A and reside there for a limited period of time (for example, 1 month). That would allow me to visit and spend time with my mother, preserving my family ties intact and allowing me to discharge whatever ordinary duties I have towards family members. But what if my mother becomes frail or ill, and I become her caregiver and need to spend more than one month in state A? If the circumstances require it, I should be able to petition for my right to remain to be extended, and that petition should be automatically granted so long as authorities are satisfied that the requisite circumstances really do prevail. The period for which one can enjoy such rights, and the categories of rights one enjoys, might be extendable in this way. Alternatively, of course, I could bring my mother to reside with me in state B on a (elderly) dependent visa. 

Under my proposal, there would thus be a limit to what one is entitled to under ius sanguinis alone. We should not think of the distribution of citizenship rights as an all-or-nothing affair. Among the many component rights currently associated with citizenship, different rights can and should be distributed separately according to different criteria. By the same token, many different criteria can serve as a legitimate ground for the distribution of any one of those constituent rights. 


1. Joseph Carens, “Aliens and citizens: the case for open borders,” Review of Politics, 49 (1987), 251–73.

2. Joseph Carens, The Ethics of Immigration (Oxford: Oxford University Press, 2013), pp. x, 3.

3. I say “in a way” because he also relies heavily on empirical facts when arguing against ius sanguinis.

4. Rainer Bauböck, “Morphing the demos into its right shape. Normative principles for enfranchising resident aliens and expatriate citizens,” Democratization, 22 (2015), 820–39. 

5. This last bit is problematic in itself. Tying citizenship – that has an immense influence on individuals’ life opportunities and welfare – to underserved and permanent personal features like ancestry is after all morally problematic even if practically convenient for states.

6. In the same vein, Iseult Honohan proposes in her contribution to this debate that minors born in another states other than that of their parents should be also entitled to their parents’ citizenship but only until they reach adulthood; from then on, they can lose this citizenship if they do not continue residing in the country of parental citizenship. This would be another way of limiting ius sanguinis entitlements.


Learning from naturalisation debates: the right to an appropriate citizenship at birth

By Katja Swider (University of Amsterdam) and Caia Vlieks (Tilburg University)


Citizenship has a political and a legal dimension. In his opening contribution, Costica Dumbrava only marginally addresses the legal dimension of citizenship, acknowledging its importance, but suggesting that it is replaceable with alternative arrangements, such as a universal status for children. Maybe he is right in his priorities; maybe citizenship status should primarily be reserved for the purpose of fostering a political community. But in reality much legal baggage is attached to citizenship, and one cannot simply shake it off, even if this appears normatively attractive. In a way, the whole human rights movement can be seen as an effort to separate access to legal rights from possessing a status of political membership, and this attempt has not reached its goal (yet). As Jannis Panagiotidis points out, “most so-called human rights are in fact citizens’ rights”. Citizenship is still the ‘right to have rights’. Avoidance of statelessness is therefore not just a legal whim; it is a human rights failsafe mechanism. 

In our contribution we start from the assumption that leaving anyone, including (and especially) children, without a citizenship for any significant period of time is not an option due to the essential legal rights that are attached to the status of national citizenship. The question therefore is not whether children should acquire a citizenship at birth, but which citizenship they should acquire at birth. Should it be the citizenship of their parents? And if not, what alternatives to birthright citizenship arrangements are adequate? 

While we consider attribution of citizenship at birth to be necessary, we also maintain that it is inherently unfair, regardless of what mechanisms of attribution are relied upon. There is nothing fair about attaching the fate of a child to one state, when states differ so tremendously in their ability (and willingness) to provide access to basic rights, such as education, healthcare, physical safety and pursuit of happiness for their minor citizens. Rainer Bauböck shifts attention from this unfairness by suggesting that “we have to address the causes of global inequality directly” instead of criticising the contingencies of birthright citizenship. However, we should not forget that this discussion takes place largely among the privileged ‘winners’ of the ‘birthright lottery’ (1). There is no doubt that global inequalities need to be addressed, but is it morally justifiable to suggest to the ‘losers’ of the birthright lottery to wait for global equality? 

If fairness in birthright citizenship cannot be achieved and leaving children without any citizenship is unacceptable, what is the normative ideal that we could strive towards in attributing citizenship at birth? As Lois Harder correctly argues here, rules about birthright attribution of citizenship are as politically charged as rules about acquiring and losing a nationality during adulthood, even though the former are not as much part of the public debate. According to Harder, “[t]he magical power of birthright citizenship is that it makes it possible for us to know and rehearse [politically charged] rules while simultaneously making birthright seem straightforward, static and apolitical”. Can we reverse this logic, and perhaps also learn from the extensively politicised discourse on migrants’ rights to naturalisation in order to improve birthright citizenship rules? 

In particular, we suggest applying the concept of appropriate citizenship to strengthen the normative foundation of birthright citizenship attribution. This notion is based on the ideas of Ernst Hirsch Ballin, who advocates “a citizenship that is appropriate to everyone’s life situation, where he or she is at home – which can change during the course of a person’s life: a natural right to be recognized as a citizen, born free”(2). He believes that this type of citizenship and citizens' rights can overcome the existing gap between “the universality of human rights” and “the changing political and social settings of people’s lives”(3). Drawing on that, we feel that appropriate citizenship, even when acquired at birth, could do the same. Appropriate citizenship is of course a highly subjective concept, the interpretation of which would be dependent on numerous cultural and specific national legal factors. Ensuring that birthright citizenship is appropriate would imply a case-by-case evaluation of the individual situation of each newborn, a process which in most cases would be as simple as the registration of birth, but in some cases would require a complex investigation to be conducted in a very brief period of time.  

While perhaps logistically counter-intuitive, introducing the normative standard of appropriateness into the attribution of citizenship at birth is not more complex than trying to solve ad hoc ‘hard cases’ of citizenship within the traditional logic of ius sanguinis versus ius soli. This complexity of some birthright citizenship cases has been extensively discussed in the contributions by Dumbrava and Scott Titshaw. Requiring that birthright citizenship is appropriate emphasises the importance of (meaningful) ties (4) of a person (including a child) to a country, and thus incorporates the idea of ius nexi discussed by David Owen. With the criterion of appropriateness we accept that birthright citizenship is a political issue, not a contingent biological fact of life, and therefore should be based in a reasoned decision-making process and subjected to normative criticism. 

The requirement that citizenship acquired at birth needs to be appropriate is far from being precise. However, we believe that a certain amount of flexibility is necessary in order to ensure that attribution of citizenship at birth has a normative foundation in each individual case. The exact modes of implementation of the criterion of appropriateness would need to be developed within the individual legal systems, but important factors to be considered include the ones that have been discussed elaborately in this forum discussion:  

-the nationalities of the persons that are expected to care for the child (biological, social or functional parents or otherwise, thus including and reinforcing the ius filiationis proposal put forward by Bauböck);

-the country where the child is born;

-the country where the child is expected to build his or her future, receive education and effectuate his or her rights as a citizen;

-the necessity of ensuring that at least one nationality is acquired and that the best interests of the child are safeguarded (in line with the almost universally ratified Convention on the Rights of the Child) (5).

It is not always easy to determine all the relevant criteria for establishing appropriateness of citizenship with a high degree of certainty. Kerry Abrams, for example, identifies some possible obstacles when discussing Bauböck’s ius filiationis proposal, namely that courts sometimes cannot determine who will ultimately be the parent that is truly (legally) responsible for the child. However, since the proposal of appropriate nationality is based on multiple relevant factors rather than a single one, the risks associated with the inability to assess some of the factors are ameliorated by the availability of other factors that can compensate for uncertainties.

Finally, we would like to emphasize that Hirsch Ballin’s ideas and the concept of appropriate nationality that we have introduced are compatible with having multiple nationalities, as well as changing one’s nationality over the course of one’s life. It is appropriate to enable children, as well as adults, to acquire a new nationality to reflect the changes in their personal circumstances. When attributing an appropriate nationality at birth to a child, states therefore do not need to embark on the impossible task of predicting the future.



(1) Ayelet Shachar, The Birthright Lottery. Citizenship and Global Inequality (Harvard University Press 2009). 

(2)  Ernst Hirsch Ballin, Citizens’ Rights and the Right to Be a Citizen (Developments in International Law, Vol. 66, Brill Nijhoff 2014) 145.

(3)  ibid. 144.

(4) Or ‘genuine connection(s)’, see also Nottebohm (Liechtenstein v Guatemala) ICJ Reports 1955, p 4; General List, No 18.

(5) See Articles 3(1) and 7 of the Convention on the Rights of the Child.


Don’t put the baby in the dirty bathwater! A Rejoinder

By Costica Dumbrava (Maastricht University)


This has been a fascinating debate that succeeded in unravelling some of the major issues about the past, present and future of ius sanguinis citizenship. I was delighted to see that many of the contributors shared my concerns about the failings of the current system of transmission of citizenship from parent to child. I learned a great deal from reading the various reactions to my deliberately provocative propositions. With these concluding remarks, I use the privilege of the last word to engage with several key points emerging from the debate and to clarify and, as much as possible, elaborate my position. However, I am hopeful that this debate does not finish here and I look forward to continuing through other ventures.

How ethnic is ius sanguinis and why does it matter?

I think we are in agreement that ius sanguinis is not inherently ethnic and that it can take on ethnic connotations depending on particular historical and policy contexts. The apple of discord is whether the gravity of such occurrences recommends the abolishment of ius sanguinis. I concede that empirical evidence is not conclusive for dismissing the principle of ius sanguinis. However, I caution that we should not underestimate the dangers of ethnonationalist instrumental uses of ius sanguinis. 

Panagiotidis explains clearly the difference between legal descent (descent from a citizen) and ethnic descent (descent from a non-citizen of a particular ethnicity) and shows that the objection about the ethnic character of ius sanguinis is founded on a big conceptual confusion. While I agree that ius sanguinis is conceptually distinct from ethnic or racial descent, I would hesitate to say that the two have “nothing to do” with one another. Unfortunately, it is not only distracted scholars that make this confusion. The ambiguity between legal and ethnic descent is often present in legal practices and political discourses about birthright citizenship. In my initial contribution I mentioned co-ethnic citizenship because these policies frequently rely on the ambivalence between legal and ethnic descent. For example, legal criteria of descent from citizens (or from former citizens or from former citizens of a former part of a country, etc.) are often used as a smoke screen for selecting future citizens according to (perceived) ethnic descent. It matters less that these policies rarely achieve the goal of ethnic selectivity as long as the very statement of the commitment to include co-ethnics is likely to bring significant political and ideological gains. As Decimo and Harder argue, despite being a technical and legalistic principle, ius sanguinis carries significant ideological connotations, among which the myth of commonality of blood or ethnic descent is often prevalent. 

I also doubt that the ethnonationalist uses of ius sanguinis are only a matter of the past and I am not convinced that they are unlikely to be “used like that in the future” (Panagiotidis). What else if not the fear of ethno-national extinction drove Latvia and Estonia in 1990 to reinstate their pre-war citizenship laws and to apply ius sanguinis retrospectively back to pre-1940 citizens? It is besides the point that not all newly recognised citizens were ethnic Latvians or Estonians (as not all of the pre-war citizens were). The political-nationalist gains obtained from the perception that the overwhelming majority of them were co-ethnics and from the symbolic reinstatement of the original national citizenry were significant. The same can be said about the Romanian policy to restore citizenship to all those who lost Romanian citizenship independently of their will. In this case, ius sanguinis has been used to trace descendants of citizens several generations back in view of recovering the “national stock” lost with the territorial changes during WWII.

It is true, as Bauböck and Collins rightly point out, that both ius sanguinis and ius soli (and combinations thereof) can have either emancipatory or exclusionary implications, depending on the context. Since empirical facts do not translate well into normative arguments (Tanasoca), I think that wrestling over empirical evidence about the positive or negative effects of ius sanguinis is not going to help us settle the normative questions about the justification of the principle of ius sanguinis. If we have strong moral reasons for maintaining ius sanguinis, we should endorse it regardless of how wrong it is applied in practice and how often this happens. Of course, we should adjust the ways in which to implement a morally justified principle to match changing empirical circumstances. Yet, the prior question is whether ius sanguinis can be morally justified as a principle of admission to citizenship. 

Why bother fixing ius sanguinis?

Many contributors to this debate grant that ius sanguinis is a morally justified principle and propose ways to reform the ways in which we implement it. Bauböck, Ersbøll and Abrams argue that the ethno-nationalist disposition of ius sanguinis can be counterbalanced through adopting supplementary ius soli and residence-based naturalisation. Bauböck, Titshaw, Abrams and De Groot discuss possibilities of rethinking legal parentage in order to accommodate complex cases of citizenship determination in the context of ART birth. 

There is a broad consensus that ius sanguinis should be reformed, albeit disagreements prevail as to how and by whom. Bauböck’s proposals of ius filiationis, which reinterprets legal parenthood as a combination of genetic and social parenthood, is cheered by some but welcomed with scepticism by others. Titshaw and Collins, for example, worry that ius filiationis will not eliminate the uncertainty related to the determination of legal parentage and that it may also encourage abuse. Another contention is about the administrative level at which decisions about ius sanguinis should be taken. Writing in the context of the US federal system, Titshaw argues that fixing the family law will solve many problems related to legal parentage and therefore to ius sanguinis citizenship. Yet, Collins fears that leaving citizenship determination to those applying the family law will unwarrantedly expose citizenship to parochial concerns (e.g. immigration control). I think this is an important point, which we should consider beyond the level of administrative decision-making. I argue that the recognition of legal parentage and the determination of citizenship should not only be implemented through two separate procedures, but also regarded as two normative processes driven by distinct principles. While I appreciate the practical importance of the proposals for reforming ius sanguinis, I am not convinced that the strategy of fixing legal parentage addresses the prior and more fundamental question about the moral justification of ius sanguinis as a principle of admission to citizenship.

It is surprising to me that in a debate about ius sanguinis citizenship so little is being said about citizenship. Most contributors seem to take for granted the normative link between parentage and citizenship and to give priority to instrumental arguments over normative ones. Let me explain this point by discussing three key arguments in support of ius sanguinis: (1) ius sanguinis protects children against statelessness; (2) ius sanguinis enables and protects family life; and (3) ius sanguinis expresses the social identity of the child.

Preventing statelessness

There is a wide consensus in the debate that children need (at least one) citizenship from birth and that ius sanguinis provides the “most simple and secure” means (Ersbøll) to prevent statelessness. This view is accepted even by those who argue that birthright citizenship is ultimately an unfair arrangement (Swider and Vlieks). It is true that in today’ world the possession of the legal status of citizenship (aka nationality) predetermines access to a set of important rights and privileges, in the absence of which a person’s life is significantly constrained. It is also true that, despite a number of complications caused by changing family patterns and the spread of assisted reproductive technologies, ius sanguinis still provides a relatively simple solution to tackle statelessness at birth. However, one can think of other ways to prevent statelessness that are equally convenient, as well as better justified normatively.

The problem of statelessness could be arguably solved by a system of generalised unconditional ius soli or by a citizenship lottery in which new-borns are assigned randomly the citizenship of a state. These alternatives remove the uncertainties associated with the determination of legal parenthood for the purpose of ius sanguinis. However, convenience alone does not count for normative justification. Against the citizenship lottery suggestion, defenders of ius sanguinis would probably insist that new-borns should receive the citizenship of “their” parents. Notice that this is not an argument about convenience anymore but one about the importance of a shared citizenship between parents and children. But nothing in the argument about avoiding statelessness requires shared citizenship between parents and their children.  To avoid statelessness at birth (in the absence of ius soli), it is sufficient that a child receives one citizenship from either of the parents. This means that in international families only one parent needs to transmit citizenship to the child and, if a parent has multiple citizenships, he or she needs to transfer only one these citizenships to the child. The argument about avoiding statelessness does not offer any guidance as to which citizenship should be shared between parents and children and why.

Alternative solutions based on ius soli elements may offer better normative justifications. I argued elsewhere that states have a collective duty to grant access to a fundamental status of legal protection (nationality) to those born and living in their jurisdiction due to states’ joint participation in an international system that leaves individuals no real possibility of opting out, i.e. to establish a new citizenship or to remain stateless. My point here is not that the parent-child relationship has no normative implications for citizenship; it is merely that the argument about avoiding statelessness is unable to bring such normative concerns to the surface. 

Protecting family life

The second major argument in defence of ius sanguinis is that the (automatic and immediate) transmission of citizenship from parent to child enables and protects family life. In the absence of a shared citizenship between parents and children, it is feared, family life would be severely disrupted as family members risk being separated from one another by borders and immigration restrictions. I do not contest that family life deserves special protection and that the legal recognition of parent-child relationship provides “critical protection for their [children’s] wellbeing” (Abrams). However, I am not convinced that the automatic and immediate transfer of citizenship from parent to child is a major normative prerequisite of family life. 

It appears to me that the overwhelming majority of contributors subscribe to an indirect and instrumental defence of ius sanguinis. The biggest concern is about securing joint migration rights for family members, which are instrumental for family life. De Groot mentions two other important citizenship privileges, i.e. diplomatic and consular protection and political participation, but surrenders quickly to the concern about migration rights. The prevailing argument in these interventions is not so much a defence of ius sanguinis citizenship but a defence of ius migrationis sanguine – the right to migrate in virtue of a blood relationship. The downside of linking too tightly ius sanguinis to family migration rights is that the argument only holds as long as migration rights are strictly determined by citizenship status and as long as there are no other ways to secure migration rights for family members apart from ius sanguinis. Hence in a world of (more) open borders, where children would not be separated from their parents or siblings by migration restrictions, ius sanguinis citizenship loses its importance. However, a system of generalised family migration policies, such as the one suggested by Tanasoca, could provide the “permanence and stability” (Titshaw) required for achieving meaningful family life in the absence of ius sanguinis citizenship.

Expressing social identity

Another intriguing argument in defence of ius sanguinis rests on the idea that (birthright) citizenship is an important part of a child’s social identity. According to the judgement of the European Court of Human Right in the case Genovese v Malta, the failure to acquire a particular citizenship at birth is likely to affect negatively the identity of the child. I distinguish two versions of this argument: a softer/instrumental version, according to which the ius sanguinis principle “makes citizenship a part of citizens’ personal identities that they are like to accept” (Bauböck); and a harder/essentialist version, for which the ius sanguinis principle recognises and confirms the (inherited) identity of the child. 

The essentialist version of the argument about a child’s social identity can be easily dismissed by pointing at the fact that citizenship is a contingent social and legal convention rather than a mechanism that confirms prior genetic, ethnic or cultural identities. Recall that in the Genovese case the Court used this argument in connection with the principle of non-discrimination. The failure to acquire citizenship via ius sanguinis by a child born out of wedlock will affect negatively his or her social identity because children born in wedlock do not face similar restrictions of ius sanguinis as children born out of wedlock. The situation can be remedied not only by removing the discriminatory treatment in the application of ius sanguinis but also by abolishing ius sanguinis altogether. The instrumental version of the identity argument is more interesting, not least because it supports our intuition that (birthright) citizens are likely to feel attached to their country of birth. However, this is valid for both ius sanguinis and ius soli, so the instrumental argument cannot show why we should preserve ius sanguinis or why we should chose one form of birthright citizenship over another. 

Long-lasting institutions usually shape people’s attitudes and generate attachments and identities. They acquire the kind of “quasi-naturalness” that Bauböck ascribes to birthright citizenship. However, the test of time and familiarity is not a valid moral test because bad institutions can also acquire that kind of “magical power” (Harder). We ought to question the moral foundations of deeply rooted institutions such as birthright citizenship especially because they are so popular and because they shape our identity. 

Opportunities for intergenerational membership

There are several arguments in the debate that deal more seriously with normative aspects of ius sanguinis citizenship. I agree with Owen that the principle of ius nexi or genuine connection is the best we have for determining access to citizenship and that this general principle can be served by different policy arrangements, including some form of qualified ius sanguinis. I assume that the principle of “appropriate citizenship” defended by Swider and Vlieks goes along the same path. My concern with their proposal is that allowing for “a case-by-case evaluation of the individual situation of each newborn” (Swider and Vlieks) might not serve well the commitment to avoid statelessness, which seems essential to the principle of appropriate citizenship. 

Honohan endorses the principle of genuine connection and defends a limited version of ius sanguinis by arguing for imposing restrictions to the intergenerational transmission of citizenship. She endorses ius sanguinis but proposes that citizenship be withdrawn from (adult) citizens who fail to develop a genuine link with the country. I am sympathetic to this proposal but I am not fully convinced about its underpinning justification. Honohan’s main objection to ius sanguinis, which is shared by Decimo and Harder, is that the unconditional acquisition of citizenship by children from their parents can amount to an unfair privilege. Although I acknowledge the implications of citizenship policies in today’s world characterised by sharp economic inequalities, I think that the concern with economic privilege should be disconnected from the concern about admission to citizenship. I agree with Bauböck that there are more appropriate means to fight global inequality and injustice than redistributing citizenship (e.g. economic redistribution, fairer migration policies).

Honohan rightly argues that citizenship “provides membership of a political community” but she does not explain why children should be admitted in the political community of their parents rather than in another (e.g. the best political community). My answer is that both parents and children have an interest in the continued participation to a particular intergenerational political project. This interest can be served through providing opportunities for intergenerational membership in the form of provisional ius sanguinis. The citizenship acquired provisionally at birth should be withdrawn upon majority from those (provisional) citizens who do not have a genuine link with the country. However, if a person fails to prove a genuine link with at least one country, his or her provisional citizenship should still be extended but only in the form of formal legal membership, i.e. without political rights.

Notice that the argument for intergenerational provisional citizenship stands even after we solve the problems related to the recognition of parenthood and to migration restriction for family members. Bauböck points at this when talking about the “signalling effects of birthright citizenship” but his argument slides into an instrumental and collectivist defence of birthright citizenship. My argument for intergenerational citizenship puts emphasis on the individual interests in continued political membership. Incidentally, this solution is also likely to have positive implications for the political community as a whole, e.g. by fostering “a sense of responsibility towards the common good and future generations” (Bauböck). I am sympathetic to Harder’s idea of political membership as a “lively on-going process of negotiation in which everyone has a stake”. However, I disagree that admission to political membership should be entirely up to negotiation, as I maintain that there are certain concerns that demand inclusion regardless of people’s preferences and abilities. I also no not think that political membership should be “limited by our mortality” (Harder). While I reject continuation based on genetic, ethnic and racial traits or simply convenience, I argue that there should be opportunities for intergenerational political continuity, which can be provided through provisional ius sanguinis.

It is beyond dispute that any attempt to dislodge a deeply rooted and widespread institution such as ius sanguinis is bound to pose serious practical challenges. However, if one has compelling moral reasons for dismantling such an institution, one ought to work towards this end. Babies are born into a physical world and from actual bodies but they are not naturally born into families and citizenship. The latter are social conventions that demand our acceptance when they are justified and our courage to change and replace them when they are not. To my critics worried that abolishing ius sanguinis amounts to throwing out the baby with the dirty bathwater I reply that we should not put the baby in the dirty bathwater in the first place.

The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship?


Kick-Off contribution


By Audrey Macklin (University of Toronto)


After decades in exile, banishment is back. Britain resuscitated the practice as part of its counter-terrorism strategy in the wake of the terrorist attacks 9/11 and 7/7 in New York, Washington and London, and Canada followed suit with the 2014 Strengthening Canadian Citizenship Act. As of late 2014, assorted legislators in Austria, Australia, Netherlands, and the United States expressed interest in enacting (or reviving) citizenship stripping laws.*

From antiquity to the late 20th century, denationalisation was a tool used by states to rid themselves of political dissidents, convicted criminals and ethnic, religious or racial minorities. The latest target of denationalisation is the convicted terrorist, or the suspected terrorist, or the potential terrorist, or maybe the associate of a terrorist. He is virtually always Muslim and male.

Citizenship-stripping is sometimes defended in the name of strengthening citizenship, but it does precisely the opposite. The defining feature of contemporary legal citizenship is that it is secure. Making legal citizenship contingent on performance demotes citizenship to another category of permanent residence. Citizenship revocation thus weakens citizenship itself. It is an illegitimate form of punishment and it serves no practical purpose.

Denationalisation refers to involuntary loss of citizenship. [1] Denaturalisation is a subset of denationalisation, and applies selectively to those not born into citizenship via ius soli or ius sanguinis. The most common basis for denaturalisation is fraud or misrepresentation in the acquisition of citizenship. The operative premise is that had the material facts been known at the relevant time, the state would not have conferred citizenship in the first place. Denaturalisation for fraud simply annuls the erroneously conferred citizenship and restores the status quo ante. [2]

My remarks focus exclusively on denationalisation for allegedly disloyal conduct by a citizen, while a citizen. In its present incarnation, citizenship revocation is best understood as a technique for extending the functionality of immigration law in counter-terrorism. Since 2001, states have turned to deportation to resolve threats to national security by displacing the embodied threat to the country of nationality. But deporting one’s own citizens is exile, and exile extinguishes a singular right of citizenship, namely the right to enter and to remain. Citizenship revocation circumvents that problem by introducing the two-step exile: first, strip citizenship; second, deport the newly minted alien.

The British Nationality Act authorises the Secretary of State for Home Affairs (Home Secretary) to deprive a person of British citizenship where she “is satisfied that deprivation is conducive to the public good.” That happens to be the same low and vague standard for depriving a person of permanent resident status (indefinite leave to remain), which provides one illustration of the downgrading of citizenship to permanent residence. In Canada, the executive power to revoke citizenship depends on a criminal conviction for a listed offence and a minimum sentence of either five years or life imprisonment. The offences include treason, spying, any terrorism offence defined under the Criminal Code and a variety of offences applicable to members of the military. In the case of terrorism offences, the conviction may be by a foreign court for an offence committed outside Canada, if it would also constitute a terrorism offence under Canadian law. [3] The UK law authorises citizenship stripping of naturalised citizens (but not birthright citizens) even if it renders them stateless, while the Canadian law prohibits the creation of statelessness but puts the onus on the individual to satisfy the Minister that statelessness would ensue from revocation. The UK declines to publicly disclose the exact number, identities or circumstances of those deprived of UK citizenship, but investigatory journalists estimate that at least 53 Britons have lost citizenship since 2002, over half on national security grounds. In 2013, the Home Secretary deprived 20 UK nationals of citizenship, more than all other years since 2002 combined. [4] The Canadian legislation has yet to be declared in force.

Citizenship revocation raises an array of practical, legal and normative questions: Does it advance a valid objective? Does it comply with domestic, constitutional and/or transnational law? Is it normatively defensible? The answers to these questions turn, in part, on one’s underlying conception of citizenship as legal status. Defenders of citizenship revocation liturgically intone that “citizenship is a privilege, not a right”. The rhetoric of citizenship-as-privilege trades on a popular and laudable sentiment that is sometimes expressed as follows: ‘I feel privileged to be a citizen of Canada, or the UK, or Italy, etc, and I consider it my duty to demonstrate my commitment through actively participating in civic life, or joining the armed forces, and standing up for my country as a good and loyal citizen should do.’ But a privilege in law is something different: A privilege emanates from the patron (here a government minister) and can be rescinded from an undeserving beneficiary (here the citizen) at the former’s discretion.

In two US Supreme Court cases in the 1950s, Chief Justice Warren rejected the classification of citizenship as privilege, proclaiming that “citizenship is not a licence that expires on misbehaviour”. Instead, he invoked Hannah Arendt’s famous depiction of citizenship as “no less than the right to have rights.” [5] Framing citizenship as a right vests citizenship in the rights-bearer. Depicting it as a meta-right dramatically increases the justificatory burden for any curtailment, because it places all rights in the balance.

Yet the force of Arendt’s ‘right to have rights’ aphorism may seem attenuated, at least with respect to liberal democratic states of the twenty first century. After all, permanent residents enjoy almost all the same rights as citizens, and even foreigners without status can, in principle, claim a long menu of basic human rights under international law and many domestic legal orders. But this rejoinder overlooks one crucial fact. The exercise of virtually all rights depends on territorial presence within the state, [6] and only citizens have an unqualified right to enter and remain on state territory. So once stripped of the right to enter and remain in the state, enforcement means that one is effectively deprived of all the other rights that depend (de jure or de facto) on territorial presence. This fact has not been lost on the present UK government: With two exceptions, all her targets were abroad when the Home Secretary chose to exercise her discretion to strip them of citizenship. This meant they were absent and unable to respond when the notice of intention to deprive was delivered, and therefore barred from entry qua alien in order to appeal the decision.

Another strand of citizenship discourse describes citizenship as a contract in which the citizen pledges allegiance to the sovereign in exchange for the sovereign’s protection. Acts of disloyalty amount to fundamental breach of contract, and so citizenship revocation simply actualises in law the citizen’s voluntary severance of the relationship. [7] This was, more or less, the logic of constructive expatriation under US law. But neither the rhetoric of contract nor privilege can mask the flagrantly punitive rationale for the citizenship revocation regimes currently in play in the UK and Canada: baldly stated, some citizens are very bad citizens, and therefore do not deserve to be citizens. The move from ‘bad citizen’ to ‘not citizen’ is explicit in the Canadian law, where conviction for a criminal offence is a condition precedent to revocation and eventual deportation. Citizenship revocation in the UK arguably turns on prevention of future risk rather than punishment for past wrong, but statements by UK politicians to the effect – ‘We think that deprivation is a way of expressing extreme displeasure at the way in which someone has behaved’ – reveal that the difference is more apparent than real. [8]

Banishment as criminal penalty has a long pedigree, and dates to a time before the rise of penal systems that enabled states to segregate, punish, rehabilitate and reintegrate wrongdoers within the state. In other words, modern states have criminal justice systems and an infrastructure that obviates the utility of banishment. These systems can, and are, deployed in response to the range of conduct encompassed under the rubric of terrorism. Banishment is both superfluous and anachronistic.

One might counter that offences threatening national security are qualitatively distinct from other offences. For these putative ‘crimes against citizenship’, incarceration is insufficient and withdrawal of citizenship is uniquely appropriate as supplement or substitute. It bears noting, however, that none of the offences precipitating loss of citizenship on grounds of national security – including treason – apply exclusively to citizens. Moreover, the idea that ‘national security’ misconduct is an affront to the state and so warrants a distinctive punishment fails to take proper account of the fact that all crime is regarded as an affront to the state’s maintenance of public order (the ‘King’s Peace’ in common law systems) and its monopoly on the legitimate use of violence. It is this public dimension of criminal law that differentiates it from private law, and confers on the state the authority to investigate, prosecute and punish wrongdoers, in addition to and apart from any private remedy that an individual victim might seek in tort, contract or property.

The purported symmetry between ‘crimes against citizenship’ and denationalisation echoes the defence of the sovereign’s other technique for permanent elimination of wrongdoers, namely the death penalty. Banishment fits the crime of disloyalty the way capital punishment fits the crime of murder. When tethered to expulsion, citizenship revocation effects a kind of ‘political death’. A citizen stripped of nationality and banished from the territory is, for all intents and purposes, dead to the state. Once outside the territory, the state has neither legal claim nor legal duty in respect of the former citizen, and is relieved of any obligation to object if another state tortures, renders or kills one of its nationals. [9] Indeed, denationalisation is not only a political analogue to death, it may also be a prelude to it. [10] At least two former UK citizens were executed by US drone strikes after the Home Secretary deprived them of citizenship, and another was rendered to the United States for trial on terrorism charges.

As with the death penalty, denationalisation extinguishes the prospect of rehabilitation or reintegration. The paradigmatic subject of citizenship revocation – the terrorist – is excluded from the ambit of human dignity that underwrites contemporary penal philosophy and affirms capacity for autonomy, rational self-reflection and reform. He is, in that sense, not fully human and thus incapable of rehabilitation. Banishment operates as pure and permanent retribution. There is no re-entry into the political community, no life after political death. Even creative and sophisticated attempts to classify and isolate those crimes that merit denationalisation from those that do not still founder on the instability of the distinction and the legitimacy of the punishment. [11]

One might object that that this parallel neglects the statelessness constraint. To the extent that a prerequisite of denationalisation is actual or potential possession of another citizenship, the individual has another political life to live somewhere else. This is also an answer to the complaint that stripping citizenship from dual nationals but not mono-nationals violates the principle of equality of citizenship. [12] The dual national is not similarly situated to the mono-national precisely because the former has another citizenship and the latter does not, so differential treatment does not constitute invidious discrimination. (Of course, the counter-intuitive consequence of this reasoning is that dual citizenship becomes a liability. Multiple citizenship becomes less than the sum of its parts: the mono-citizen is secure from revocation, while the dual or multiple citizen is not).

The cogency of this argument depends on how one characterises the impact of citizenship revocation. From an external, statist perspective, the function of nationality is to catalogue the world’s population and to file each person under at least one state. Nationality provides states with a return address they can stick on non-citizens for purposes of deportation, and is one reason why statelessness is an inconvenient anomaly for states. And just as all sovereign states are formally equal under international law, so too are all citizenships. Within this framework, citizenship becomes fungible. Statelessness is the problem, and nationality the solution. So, it may not actually matter what nationality a person possesses – Canadian or Somali, Brazilian or North Korean – as long as he or she possesses at least one. All nationalities are equal for purposes of averting statelessness. [13] This formal equality of nationality may partly explain international law’s diffidence, or at least ambiguity, on whether citizenship deprivation that does not induce statelessness may nevertheless be arbitrary and contrary to international law. [14] In any event, as long as an individual retains a nationality somewhere, denationalisation poses no human rights problem.

From an internal, individual perspective, however, citizenship is not fungible. [15] The revocation of citizenship severs a unique relationship between the individual and a specific state. It is unique in two respects: First, the formal equality of nationality suppresses the substantive inequality of citizenship. The bundle of social, political, economic, cultural and legal opportunities and entitlements to which citizenship provides access varies radically between countries. Canadian or Brazilian citizenship is dramatically and indisputably heftier than that of present-day North Korea or Somalia.

Secondly, the subjective experience of that legal bond, what the International Court of Justice in Nottebohm v. Guatemala calls ‘the social fact of attachment’ [16] is as infinitely diverse as the people who make up the citizenry. It may range from the ‘nominal citizen’ whose social attachment is highly attenuated, to the individual whose existence is, and has always been, wholly and exclusively embedded in the country of residence. Citizenships are not substantively equal in comparison to one another and the nature of the individual citizen-state relationship is not invariant. But my point is not to propose a metric capable of measuring the quantitative, qualitative, experiential, emotional, personal, familial, cultural, social, financial, linguistic and political impacts of exile on any individual, in order that some state official could determine precisely when citizenship revocation inflicts an appropriate versus excessive degree of punishment. Citizenship as legal status obviates both the need and the legitimacy of an ongoing or comparative evaluation by state authorities of how much or how well a citizen performs as a citizen. [17] The very act of subjecting a subsisting citizenship to this kind of normative scrutiny subverts the security that distinguishes legal citizenship from other statuses that define the relationship between state and individual.

The history of banishment generates only cautionary tales about the inevitably arbitrary and prejudicial abuse of a discretionary power to identify the ‘bad’ citizen for purposes of relegating him or her to the non-status of non-citizen. The violence of rupturing the link between citizens and state is not negated by possession of citizenship status in another polity, if one conceives of the relationship (whatever its intensity, depth, etc.) between a state and a citizen as singular and unique. On this view, citizenship revocation inflicts an intrinsically grave harm that is separate from (though exacerbated by) the harm of statelessness. [18]

I leave to one side an account of the myriad procedural and substantive deficiencies of the UK and Canadian denationalisation regimes that make them ripe for legal challenge. Nor do I dwell here on the dubious practical value of denationalisation in preventing terrorism or protecting national security. Suffice to say that if the aim of citizenship revocation is deterrence, there is no evidence that stripping citizenship will deter a potential terrorist any more or better than the prospect of a criminal conviction and lengthy imprisonment or, for that matter, the risk of blowing oneself up, getting killed or executed, or being detained indefinitely, rendered, or tortured. To the extent that exile supposedly makes a country more secure by removing dangerous people, the justification knows no limits: it is not obvious why Canadians or Britons would not also be made safer by exiling all citizens who commit violent offences. From the other side, expelling convicted or alleged terrorists is an oddly parochial response that transfers rather than reduces risk. Depending on the destination country, deportation may actually make it easier for the individual to engage in activities that pose a threat to global security. [19]

And, finally, the sheer absurdity of banishment as a response to the terrorist qua global outlaw is best illustrated by speculating on what would happen if all states behaved like the UK and Canada: Imagine a dual UK-Canada citizen who is convicted of a terrorism offence in the UK. Since terrorism is a global menace, Canada can treat a terrorism conviction in another state as proof of being a bad Canadian citizen. Both Canada and the UK can lawfully denationalise him. But both states are also somewhat constrained in law not to create statelessness, and both are constrained in fact by the need to find another state to take the expelled person. And the only country that has a legal obligation to do is a state of nationality. So, now it becomes a race to see which country can strip citizenship first. To the loser goes the citizen.

Modern exile, as imagined under UK and Canadian law, is erected upon unsustainable and incoherent propositions about the nature of legal citizenship. If citizenship is irrevocable only where withdrawal causes statelessness, then citizenship is a right for mono-citizens but a privilege for dual or multiple citizens. Legal citizenship can be contingent on normative criteria for one state if and only if it is not similarly contingent for another state. State A can deprive a national of citizenship and banish him because he is a bad citizen. But State A can do so lawfully if and only if State B is compelled to admit the individual simply because he is a citizen of State B, irrespective of whether he is a good or bad citizen of State B. One state’s authority to deem the bad citizen a non-citizen presupposes another state lacking that same authority.

To contend that punitive denationalisation in the twenty-first century is an illegitimate and futile exercise of sovereign power does not refute or deny that social solidarity, belonging and allegiance have a place in conceptions of citizenship and deserve to be promoted. It is rather that these goals will not and cannot be advanced by citizenship revocation. Nor will citizenship revocation make any state, or the global community, more secure. Citizenship revocation only enhances the discretionary and arbitrary power of the executive, at the expense of all citizens, and of citizenship itself. Banishment deserves to be banished again. Permanently.



* For a more elaborate comparative analysis of recent legislative developments in the United Kingdom, Canada and the US, see Audrey Macklin, Citizenship Revocation and the Privilege to Have Rights, EUI/RSCAS Working Paper, forthcoming

[1] Before the widespread acceptance of dual citizenship, acquisition of a second citizenship or marriage to a foreign man commonly triggered denaturalisation. In a world where states tolerated only one legal bond between individual and state at a time, acquisition of a second nationality denoted a transfer of membership from one state to another.

[2] The United States law combines renunciation of citizenship and denationalisation for birthright citizens into a category labelled expatriation. The US Constitution guarantees the citizenship of ius soli citizens as a constitutional right. The doctrine of expatriation operated on the legal fiction that certain acts by a citizen denoted an intention to renounce citizenship. In a series of judgments culminating in 1967 in Afroyim v. Rusk, the US Supreme Court progressively restricted the government’s ability to deem conduct short of explicit renunciation as conclusive proof of an intention to expatriate, and the executive effectively abandoned attempts to pursue constructive expatriation in the 1980s.

[3] The law also permits revocation of a citizen who ‘served as a member of an armed force of a country or as a member of an organised armed group and that country or group was engaged in an armed conflict with Canada.’ This is not a criminal offence, though it is almost identical to the existing offence of treason, except that it includes non-state armed groups, whereas the offence of treason only includes armed forces of a state.

[4] Id.

[5] The unattributed quote comes from Hannah Arendt, The Origins of Totalitarianism, (New York: Harcourt & Brace, 1951), at 294. It was picked up by US Supreme Court Justice Warren in Perez v. Brownell, 356 US 54 (1958) at 64 and again in Trop v. Dulles, 356 U.S. 86 (1958) at 102. See discussion in Patrick Weil, The Sovereign Citizen (Philadelphia: University of Pennsylvania Press, 2013).

[6] Expatriate voting is one exception. Many people suppose that diplomatic or consular assistance is also a right available outside the territory of the state, except that states tend to deny that they owe a legal duty to extend assistance to their citizens abroad. See, e.g. R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598.

[7] The US model of expatriation implicitly relied on this metaphor to characterise a series of acts, from desertion, to voting in a foreign election, as acts signifying an intention to renounce citizenship.

[8] See See United Kingdom, Parliamentary Debates, HC Standing Committee E, 30 April 2002, col 54 (Angela Eagle), quoted in Thwaites, supra * at note 94.

[9] Since the United States’ lethal drone strike on US citizen Anwar al Awlaki (and his son), the United States’ position is that it may lawfully execute its own citizens without trial when they are abroad. This, of course, obviates the necessity to strip citizenship prior to execution. See “US cited controversial law in decision to kill American citizen by drone”, The Guardian, 23 June 2014; online at http://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-american-citizen-awlaki . See also Peter Spiro, “Expatriating Terrorists”, (2014) 82 Fordham Law Review.

[10] This was the case with the Nazi extermination of German Jewry, as Hannah Arendt recounted. First, the Nazi government stripped Jews of German nationality and then, when no country would take them in, proceeded to murder them.

[11] For a recent example, see Shai Lavi, “Citizenship Revocation as Punishment: On the Modern Duties of Citizens and Their Criminal Breach”, (2011), 61 UTLJ 783-810, at 806.

[12] It does not, of course, answer the charge of discrimination against naturalised mono-citizens under UK law. They are exposed to the risk of statelessness whereas birthright citizens are not.

[13] One could even imagine how a creative government wedded to this view might venture that protecting mono-citizens from statelessness is really an affirmative action initiative under s. 15(2) of the Charter.

[14] See Peter Spiro, “The New International Law of Citizenship”, (2011), Am J. Int’l Law, 694-746, at 711-12.

[15] Thwaites makes a similar argument, supra note * at 263.

[16] Nottebohm (Liechtenstein v. Guatemala), ICJ 4 (1955) at 23.

[17] This does not preclude an argument that the depth and duration of a resident non-citizen’s relationship to a state could and should generate an entitlement to remain and to be put on a path to citizenship. See, e.g. Joseph Carens, The Ethics of Immigration (Oxford: OUP 2013).

[18] For a similar argument, see Rayner Thwaites, supra note *

[19] Audrey Macklin, “Borderline Security”, in R.Daniels et al. (eds.), The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto: U of T Press, 2001), 383-405; “Still Stuck at the Border”, in Craig Forcese and François Crépeau, eds., Terrorism, Law and Democracy: 10 Years After 9/11 (Montreal: Canadian Institute for the Administration of Justice, 2012), 261-306.



Terrorist expatriation: All show, No bite, no future

By Peter Spiro (Temple University)


I agree with the bottom line of Audrey Macklin’s excellent kick-off for the forum. New expatriation measures adopted by the United Kingdom and Canada are ill-advised and possibly unlawful. The UK and Canada moves make for a kind of trendlet, and other states (even human rights-pure Norway) are considering similar measures as the “foreign fighter” phenomenon captures global attention. Denationalization of terror suspects clearly merits the attention of scholars and activists; after decades of disuse, states are now stepping back into the practice of forced expatriation. Macklin sets the scene with a primer on recent developments and a powerful critique of the UK and Canadian measures.

But I would get to the destination along another path. I see denationalisation as anachronistic and toothless in the face of diminished conceptions of citizenship as an institution and the changed locations of allegiance. The expatriation measures are empty gestures, a kind of counter-terror bravado to make up for the deficiency of more important material responses. Government officials must be seen to be doing something, and so they may (for appearances sake) throw expatriation into the counter-terror toolbox. But expatriation won’t advance the counter-terror agenda in any real way. Given the lack of policy advantage, I expect that the human rights critique will suffice to suppress the broad use of denationalisation in this context. 

In theory, expatriation could help shore up the boundaries of membership and national solidarity. Terrorist expatriation might be consistent with the historical practice of terminating nationality upon formal transfer of allegiance. This was once the near-universal practice; original nationality was lost automatically upon naturalisation in another state. Military and government service in another country would also typically result in expatriation, even when the other state was a friendly one. This practice helped police the boundaries of community. One could be a member of one or another polity, but not both. States that continue to prohibit dual citizenship still operate on this principle. A Japanese citizen who naturalises as an American, for example, automatically forfeits her Japanese nationality.  

One might situate security-related expatriation in this tradition. To the extent that fighting for the Islamic State represents a shift of loyalty incompatible with loyalty to the United Kingdom, expatriation merely reflects social conditions on the ground. Membership in the United Kingdom would be exclusive of membership in forces associated with the Islamic State. Expatriation clarifies the “us” and “them” in a way that clarifies social solidarities and the special obligations that come with co-nationality. (Ayelet Shachar makes a similar argument with respect to “hollow” citizens acquiring citizenship on the attenuated basis of descent.)

But this logic doesn’t map out onto denationalisation in the current security context. There is no citizenship in the Islamic State (ISIL not being a state, the label notwithstanding). One cannot naturalise or be born into ISIL; there is no formal evidence of loyalty or membership. Expatriation doesn’t work without the symmetry. To the extent that only dual nationals are subject to security-related expatriation, the criterion no longer makes any sense: the other citizenship is random, unrelated to the motivation for expatriation. (As Macklin points out, it could lead to a strange dynamic in which states allied against groups such as ISIL could race to expatriate foreign fighters in an effort to offshore putative threats.) The condition then arbitrarily discriminates against individuals on the basis of their dual-citizen status.  

That takes care of the only normatively tenable rationale for the expatriation measures. The punitive basis is more easily dispatched. Punitive uses of expatriation have long been condemned. As early as 1958, the U.S. Supreme Court was able to observe that “[t]he civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.” The Canadian measure marks a return to the practice of exile. As Macklin argues, non-application to cases in which statelessness would result does not save it from this rap. A person may well feel a deep social attachment to one country while holding alternative nationalities (which themselves may be nominal). The denationalisation of a Canadian citizen long-resident in Canada will feel like banishment even as he holds another nationality, especially to the extent the latter is attenuated. 

Finally, the protective rationale for terrorist expatriation makes little sense as a practical matter.  The “foreign fighter” problem is largely framed as a problem of return. Citizens radicalised by their experience in Iraq and Syria with brutal ISIL forces will return to their home countries in the West to undertake terror attacks. It’s a potent narrative of weaponised citizens. Without citizenship, these individuals would have no right of re-entry, thus defusing their utility as ISIL operatives. 

Or so our politicians would have it. In practice, denationalisation adds little counter-terror value. You can’t take away someone’s citizenship for being associated with ISIL before you know that he’s associated with ISIL. But once the security apparatus is aware of the connection, it will have other, standard counter-terror tools to protect against the threat. There will be the possibility of criminal prosecution in many states on material support charges, with incarceration on conviction. (Canada’s punitive scheme can hardly sustain even the pretense of a protective rationale.) Short of prosecution, watch lists and well-practiced surveillance techniques should prevent returning foreign fighters from undertaking terror attacks. Passport revocation and travel bans will help prevent citizens from becoming foreign fighters in the first place. 

So terrorist expatriation advances counter-terror efforts not at all. It supplies yet another example of security-related theater, a feel-good move that will be popular with some voters. (The features are shared with some Western responses to the vastly exaggerated Ebola threat, where politicians must be seen to respond dramatically even if dramatic moves make no sense in policy terms.) Terrorist expatriation is unlikely to have staying power against a powerful human rights critique. The UK and Canadian measures may well fall to legal challenges, domestic or international. Even if they are sustained in court, they are unlikely to be put to broad use. Few other states will follow suit (it is interesting that terrorist expatriation has almost no political traction in the United States, its aggressive counter-terror posturing notwithstanding). The failure will evidence an emerging norm against involuntary expatriation. If states can’t make expatriation stick here, they won’t be able to make it stick anywhere. 




Should those who attack the nation have an absolute right to remain its citizens?

By Peter H. Schuck (Yale Law School)


Audrey Macklin’s call for the banishment of banishment is eloquent and persuasive on many points.  She is surely right that particular denationalisation regimes may suffer from a variety of fatal defects. The standards for revocation may be too vague to constrain official discretion or to provide adequate notice to the citizen concerning what conduct will risk revocation. Most important, the grounds for revocation must be limited to only the most extreme, unmitigated attacks on the nation’s security, attacks that are consistent only with a desire to bring the nation to ruin. This conduct must be scrupulously-defined and highly specific conduct; mere malignant thoughts will not suffice. Revocation cannot be permitted to lead to statelessness and thus a loss of the “meta-right” (as Macklin puts it) to have rights, especially the right to the territorial presence that in turn confers a broad panoply of liberal rights.  The procedures for revocation must be robust in all respects, including of course the right to be actually or virtually present rather than having to contest the government’s action from exile. The government’s burden and standard of proof must be exceedingly demanding, perhaps even the proof beyond a reasonable doubt required for criminal convictions.  

But even these extraordinarily demanding and rare preconditions are irrelevant to Macklin; she is utterly categorical in her rejection of the very notion of denationalisation.  She would preclude denationalisation even if these (and other) strict conditions were met; indeed, no protections for the individual citizen – or for the threatened nation – would suffice.  Here is where we disagree.  I see no reason in logic or justice why a state should be powerless to protect itself and its people from imminent, existential threats (suitably defined) from an individual who has launched a dangerous attack (suitably defined and rigorously proved) on itself and its people.  And I see no reason in logic or justice why that state cannot defend itself and its people against such an attack by, among other things, severing the attacker’s connection to a state with which he is manifestly at war, thereby making it much more difficult for him to succeed in that war. Should the individual’s interest in maintaining that connection, which (by my definition, embedded in the preconditions listed above) can only be tactical and cynical, utterly and categorically outweigh the nation’s interest in protecting those for whom it bears a sacred trust?  This question, I submit, answers itself – and the answer is grounded not merely in a utilitarian balancing but in a deontological principle: the nation’s fundamental duty to protect its people.

I also have some reservations about a few of Macklin’s other, less fundamental arguments. First, she claims that denationalisation weakens citizenship by eliminating its security and thus rendering it a form of mere legal residence. I don’t understand her logic.  Am I less secure in my citizenship if I know that the state may execute me or imprison me for life if I murder a fellow citizen?  I suppose that I am less secure, but that insecurity is warranted and I can easily avoid it. Moreover, there is a sense in which denationalising one who has demonstrably satisfied the exceedingly demanding conditions for revocation that I have specified does, contrary to Macklin’s claim, strengthen citizenship by reaffirming the conditions on which it is based.  

Second, she categorically condemns revocation in part because it categorically denies the individual the opportunity to rehabilitate himself.  We should and ordinarily do protect a wrongdoer’s opportunity to rehabilitate himself, but there are many situations in which we don’t.  An employer who catches an employee embezzling from the company may fire him without giving him an opportunity to rehabilitate himself there; if he wishes to rehabilitate himself, he will have to do so elsewhere, on his own time.  When we sentence a murderer to life imprisonment without parole, we are denying him the right to regain his freedom through rehabilitation.  

Third, it is true that denationalising a dual citizen would still leave him with a state while denationalising a mono citizen would not.  But so long as we do not allow revocations that would render one stateless, this particular inequality between categories of citizens is hardly one that should trouble us – any more than we should be troubled that a dual citizen has an additional passport and can vote in an additional polity.   

Finally, Macklin states that there is no evidence that denationalisation will deter a would-be terrorist if other, more conventional counter-terrorism measures fail to do so. I agree, but so what?  Deterrence may be an important reason to punish wrongdoers but it is by no means the only reason to do so.  If we are justified in punishing them, that justification is not nullified by a claim that the punishment will not deter others. And if more conventional measures are indeed effective in eliminating threats, they should of course be our first and perhaps final resort.  In such situations, denationalisation may well be a superfluous, unnecessary remedy. But this is a question of policy and prudence, not moral principle.          

Macklin is certainly right to worry about the possible abuses of denationalisation. The history of political banishment is hardly reassuring on this point. But a liberal constitutional regime can control such abuses by scrupulously controlling the state’s exercise of this power through a variety of familiar institutions and practices. These include a careful definition and exacting limitation of the grounds for revocation; demanding procedural and evidentiary requirements before such a power can be exercised; and an independent judiciary accustomed to challenging state power in the name of protecting individual rights. We have entrusted our precious liberties to the faithful working through of these institutions and practices. Some of these liberties are even more precious than our right to retain our citizenship when we have knowingly acted in horrendous ways that make it justifiable, under the safeguards I have described, for the state to declare that status forfeited. 


Terrorists repudiate their own citizenship

By Christian Joppke (University of Bern)


The recent trend to strip international terrorists of their citizenship raises general questions about the changing nature of terror and of citizenship. Let us start with “terror”. In the era of Marxist-inspired violence against the state (or rather “capitalism”, of which the state was suspected to be merely a servant), terror was a purely domestic affair, committed by the flower children of the elite, particularly its most educated and morally minded. No one would have fathomed stripping an Ulrike Meinhof or Andreas Baader, leaders of the 1970s' German Red Army Faction (RAF), of their German citizenship. The current “return of banishment” is a response to an altogether different type of terror, one that transcends borders and is committed by people who explicitly posit themselves outside the political community of the nation-state—allegiance to the community of believers (ummah) cancels out the secular community of citizens, it is even deliberately mobilised against the latter. Only notice the cynical ritual of the Islamic State`s henchmen to have a fellow-national do the mediatised head-chopping. By the same token, RAF limited its murderous acts to high-ranking representatives of the “system” (of which ordinary citizens were seen as merely victims who thus stood to be recruited as fellow-fighters). Al Quaeda and its Islamic State sequel seek death for ordinary citizens, whose humanity is denied through being demoted to “unbelievers”. Paul Kahn (2011: 138) took the ubiquitous threat of terror to be today`s ultimate moment of citizenship, the “moment of conscription”. Indeed, Islamic terror is meant to be “war”, while RAF aspired to “revolution”—two very different things, with obvious implications for citizenship in the former but not the latter. That terror against citizens should lead to reconsidering the citizen status of its culprits, who proved the ties to their state of citizenship to be at best “tactical and cynical”, as Peter Schuck writes in his contribution, seems logical. One is therefore astounded about the measured response by Western states, which have mostly respected the international norm of avoiding statelessness (only lately, in response to the unspeakable atrocities committed by the fighters of the Islamic State, have there been cracks in this commitment, most notably in Britain). But academics cry out that “banishment weakens citizenship”, as Audrey Macklin does. They draw an idyllic and reality-resistant picture of “singular and unique” ties between terrorists and the citizenship they despise; “intrinsically grave harm” is said to be inflicted here, separate even from “the harm of statelessness” (ibid.). Evidently, more sympathy is invested on the culprits than on their victims.

Make no mistake. One should hold no illusion about populist, spin-doctored politicians, from Britain to America, Norway to Italy, who hide their chronic incapacity to lead in our contemporary “audience democracies” (Manin 1997: ch.6) behind the sable-rattling “security” and “War on Terror” rhetoric that the people wish to hear. Macklin has a point when she finds that under the guise of “security” only “the discretionary and arbitrary power of the executive” is increased. Particularly the recent experience in Britain under Tory Home Minister Theresa May, with a rather capricious practice of citizenship stripping for the loosely defined reason of being “conducive to the public good”, with sometimes lethal and conspiratorially concocted consequences for the targeted individuals, lends itself to this interpretation. And Peter Spiro is on target that conducting the fight against terrorism on the citizenship front is “empty gestures” and not likely to have much effect—though his proposal of “passport revocation and travel bans” in lieu of denationalisation reads eerily off the mark after the recent tragedy of a would-be jihadist, who had been grounded by the Canadian government exactly in these terms, turning his rage about the passport denial against an innocent guardsman in Ottawa.

The practical question of effectiveness is secondary to the principled question whether citizenship for proven (naturally not just suspected or potential) terrorists who conduct war (in the literal sense) against Western states and their citizens should be unassailable. At heart, the issue is one of “loyalty and allegiance”, as the Canadian Immigration Minister, Chris Alexander, defended the 2014 Strengthening Canadian Citizenship Act in parliament. This act, representative of similar bills currently being considered in a number of European states, Australia, and the United States, allows the stripping of citizenship in the cases of treason, spying, taking up arms against the Canadian Forces, and terrorism, even if the latter is committed outside Canada and sentenced by foreign courts, should the action in question constitute a terrorism offence also under Canadian law. The expanded geographic scope for terrorism, which stirred controversy, was clearly dictated by heightened security concerns. But it also recognises the global nature of the new terror and its affront to the secular state and citizenship at large, wherever it may occur; one might read it as a comity of nations response to a global challenge. In any case, it is not just bizarre but self-destructive to measure the “strength” of citizenship in terrorists' unencumbered possibility to make tactical use of it in their war against the godless state and its unbelieving median citizen.

For calibrating banishment, next to taking into account the changing nature of terror, one also needs to recognise the changing nature of citizenship in a globalizing world. Whoever has reflected for a second on the colossal injustice inflicted on the vast majority of mankind by being born into the “wrong” kind of state that cannot guarantee its “citizens” physical safety and the elementary means of survival (see Shachar 2009), must be irritated to see citizenship depicted as something that an individual should never be able to lose, however randomly it had been assigned to her in the first place, and however much a particular individual has done to undermine or even destroy this very citizenship (and the state that guarantees it). Audrey Macklin sees the danger of banishment in “making legal citizenship contingent on performance”. “Performance” strikes me as a rather vague and anodyne term for the behavior in question. It is one thing to make citizenship acquisition contingent on virtuous behaviour, which could never be exacted on born citizens (as Britain entertained for a while in its “probationary” or “earned” citizenship scheme that was never implemented); it is quite another to make a declared war against the secular state and its citizens a ground for renunciation. As much as one should eschew virtuous citizenship from a liberal perspective, one should welcome, even require the withdrawing of citizenship from someone to whom it is at best a tactical weapon.

It may warm the heart to elevate citizenship to a “right to have rights”, enunciated by US Supreme Court Chief Justice Earl Warren in a different time and context (voting in foreign elections (1) and desertion during World II (2), in both cases without any third-party harm inflicted and at best a vague and constructed violation of allegiance). The gospel of citizenship stripping as “cruel punishment”, pronounced in Trop v. Dulles (1958), needs reconsideration in the age of global terror. And the accompanying formula of citizenship as a “right to have rights” obscures that persons without states or citizenship are no longer the “scum of the earth” they may have been in the late 1940s, when Hannah Arendt wrote the Origins of Totalitarianism. But most importantly, the formula “rights to have rights” dodges the fact that, indeed, citizenship in a globalising world is increasingly “privilege” and “contract”. It is a privilege if one considers the mentioned exclusion from a lucrative OECD-state citizenship of most of mankind (that has to make do with less than US$ 2 per day). And it is a contract by definition for the ever growing number of immigrants who are not born with it but seek it out for their own benefit. In the post-feudal world, most states allow the possibility to renounce one`s citizenship—this was the point of departure of “democratic” America from “monarchical” Britain. But then it is not outlandish (or illiberal) to concede the converse capacity to states to rid themselves even of born citizens who have despised or patently abused their citizenship through their actions (and why stop at the threshold of statelessness?).

Macklin claims that banishment is “both superfluous and anachronistic” because states now have “criminal justice systems” at their disposal to “rehabilitate and reintegrate wrongdoers within the state”. This claim is misleading and paternalistic. International terrorists are not criminals but warriors—they don`t want to be “reintegrated”. The liberal state should acknowledge their claim, eye to eye, by taking away from them what they have factually renounced and even wish to destroy. Canadian minister Chris Alexander is right: “They (terrorists) will have, in effect, withdrawn their allegiance to Canada by their very actions.” Peter Spiro lawyerly ups the ante by arguing that there could not be a “shift of loyalty” on the part of Islamic terrorists because “there is no citizenship in the Islamic State”. Does he want to wait until they have acquired a seat in the United Nations?



Kahn, Paul. 2011. Political Theology. Ithaca, N.Y.: Cornell University Press.

Manin, Bernard. 1997. The Principles of Representative Government. New York: Cambridge University Press

Shachar, Ayelet. 2009. The Birthright Lottery. Cambridge, Mass.: Harvard University Press. 



(1) Perez v. Brownell, 356 U.S. 54 (1958)

(2) Trop v. Dulles, 356 U.S. 86 (1958)



It’s not about their citizenship, it’s about ours

By Vesco Paskalev (University of Hull)


The very passion and fury pouring from Christian Joppke’s contribution should prompt both the lawyer and the political philosopher that he is wrong. I too am outraged by what ISIS fighters are doing, but it is well known that the function of constitutional rights, and of the constitutions themselves, is precisely to assure that the legislator is not driven by the passion of the day. One decade after 9/11 we know that the actions taken both by the President and the Congress of the U.S. based on the rationale that it is a new world that we have woken up into were not all reasonable, to put it mildly. So may be today’s rush to strip terrorist suspects of their citizenship. When watching the daily news on TV, one is easily tempted to think that we are living in extraordinarily dangerous times, which warrant a return to what the US Supreme Court considered to be ‘cruel punishment’ half a century ago. Yet as a matter of statistics, and despite our contrary impressions, violence of all kinds in the world is actually declining (Pinker 2011). On the other hand, the capacity of law enforcement agencies for surveillance and control, especially in the OECD countries, have increased dramatically, so the return to practices which have long been abandoned is difficult to justify. This is not to say that that citizenship is a sacred cow and any return to abandoned practices is excluded by some historic laws of human progress. Nothing can be further from the truth. But it does follow that the proponents of banishment must provide a more subtle justification than we have seen so far.

Joppke has a point when distinguishing the old school revolutionaries from the contemporary jihadists, who conceive of themselves as members of the global ummah, and not of any state. (Do we know that for sure? ISIS aims to create an Islamic state after all). He also has a point that waging war against a country is a good reason to strip the warrior of the citizenship of that country. I can accept even stretching this argument to apply to all those who take up arms against any allies of that country, or even to those who have taken arms against the international system of states. This would bring me already quite close to the position of the ‘deprivationists’.

What I find difficult to accept is the unquestioned assumption that this gesture would serve any of the goals Joppke, and the politicians favouring banishment, may have. If the jihadists were as cosmopolitan as he takes them to be, deprivation would not have any meaning, neither for the actual fighters, nor for any like-minded followers. It might be the case that taking their passport will have the practical effect of preventing them from travelling to Syria or back, but as a person who is genuinely outraged by their deeds, I would rather see them locked up in prison rather than left at large in a legal limbo in the Middle East out of all places. For Joppke the practical side is only of secondary concern, but I am afraid his theoretical argument is self-defeating.

Now, if we accept that the jihadists just do not care if they are deprived of their western citizenships, let us consider whether this would still matter for anyone else. On the one hand, there are the ’normal’ citizens of the same country who may wish to see the extremists publicly excommunicated. This is a legitimate concern. However, it is in no way different from the desire of many law-abiding citizens to see murderers and rapists sent to the electric chair. So the usual objections to the latter punishments apply here too. More importantly, while there is some commensurability between a murder and a death sentence, the very gravity of the offences of the jihadists make citizenship deprivation superfluous. Ironically, not the cruelty of citizenship deprivation, but its softness make it appear quite inappropriate for the case of terrorists. If we take into account also the practical difficulties arising in the prosecution of a foreigner, on balance it might be better to keep him as a citizen. On the other hand, the possibility or impossibility of revocation defines and redefines the meaning of the concept of citizenship itself – of our citizenship, not of theirs. That is why many academics, whose professional duty is to care for precisely such nuance, are so uneasy about the recent trend.  I would be glad if this concern remains confined to the ivory towers of the academia, but I suspect that the conditionality of citizenship is more than a theoretical concern for those citizens who are not white, Anglo-Saxon and Christian and have only recently arrived from the wrong side of the OECD border. 

One may argue, as Peter Schuck does, for deprivation administered under narrowly circumscribed conditions. Indeed, due process can alleviate some of the anxieties the conditionality of citizenship would create, but he does not provide much of a justification for this conditionality in the first place. He also relies on the intuitive, yet questionable assumption that citizenship deprivation serves to protect the state and its people. But all grounds for deprivation he suggests already constitute a serious crime, and if the perpetrator must be convicted to be denationalised as he suggests, then again, what difference would it make if he is a citizen or not? If deprivation were administered properly – for grave crimes and with due process, it becomes redundant.  

Beyond these conceptual concerns, and paying due consideration to the all too present terrorist threats, I want the Islamic State bombed out of existence, and I want all jihadists punished for what they do. But as a citizen I also want my tax money spent on police to put the bad apples in jail, not on border patrols to keep them out. 



Pinker, S. (2011). The Better Angels of our Nature. New York: Viking.



You can't lose what you haven't got: citizenship acquisition and loss in Africa

By Bronwen Manby


The heading for this discussion makes a person focused on sub-Saharan Africa scratch her head somewhat. Which ‘new’ denationalisation policies are we talking about? In Africa, we have continued to see the same old denationalisation policies that have been in place since the 1960s. The context of national security has changed in some countries, especially the threat of 21st century terrorism methods in places such as Kenya or Nigeria, but the methods used by the governments in response have not changed.

The legal provisions

If we start from a survey of the laws, most African countries allow for deprivation of nationality acquired by naturalisation, some of them on quite vague and arbitrary grounds. The former British colonies borrow language from the British precedents and provide for deprivation on the grounds of “disloyalty” or the “public good”; while the francophone countries talk about behaviour “incompatible with the status of a national” or “prejudicial to the interests of the country”. However, more than half of Africa’s 54 states forbid deprivation of nationality from a national from birth (of origin, in the civil law terminology), whether or not the person would become stateless.[1] And although a large number of the remaining countries have a provision framed along the lines provided in the 1961 Convention on the Reduction of Statelessness for a person who works for a foreign state in defiance of an express prohibition to lose their nationality,[2] only a small handful provide for deprivation of a birthright citizen in case of a crime against the state — Egypt, Eritrea and Mali.[3] None of the sub-Saharan countries come close to the extremes of Egypt, where citizenship can be deprived from anyone (citizen from birth or by naturalisation) if, among other things, “at any time he has been qualified as Zionist”.[4] 

On the positive side, the South African and Ethiopian constitutions provide blanket prohibitions on deprivation of nationality, whether from birth or naturalised (though South Africa then goes on to violate this prohibition in its legislation).[5] Several constitutions and laws create serious due process hurdles for governments seeking to revoke citizenship. In Kenya for example, the 2010 constitution requires a naturalised citizen (citizenship by birth cannot be revoked) to have been actually convicted of a serious crime, including treason;[6] less specifically, Burundi, Malawi, and Rwanda have constitutional provisions forbidding arbitrary deprivation of nationality.[7] Meanwhile, Gambia, Ghana, Liberia and Rwanda all provide that deprivation can only be done by a court, on the government’s application;[8] and a majority, though not all, others provide for judicial review of administrative decisions to deprive.[9] A few countries provide for protection against statelessness in deprivation cases: just Lesotho, Mauritius, and Zimbabwe (since 2013) provide in principle for protection from statelessness in all cases where nationality is revoked by act of the government; and Namibia, Rwanda, Senegal and South Africa provide partial protection, allowing statelessness to result in some circumstances.[10]

On the negative side, Botswana, Lesotho, Malawi, Mauritius, Seychelles, Tanzania, Zambia and Zimbabwe — notably, all with a British legal inheritance — explicitly state in their legislation that the decision of the minister on any matter under the nationality law cannot be reviewed in court.[11] These are all countries which do not allow for deprivation of birthright citizenship (though some provide for loss in case of acquisition of another nationality); but it’s questionable what the protection against statelessness in deprivation cases provided by Mauritius means, if the decision of the minister cannot be challenged. In Swaziland, where a certificate of nationality “shall” be issued by the minister to a person who is qualified to be a citizen, it is also provided that the minister “may revoke” a certificate and no grounds are specified.[12] Namibia allows deprivation of nationality on the grounds that a person was already deprived in another country, increasing the likelihood of rendering them stateless.[13] In 2013, the Seychelles inserted a new article to its citizenship law expanding the grounds for deprivation of citizenship if the minister “is satisfied” that the person has been involved in terrorism, piracy, drugs offences, treason, and other offences, or has acted with disloyalty.[14] In 2010, the South African Citizenship Act was amended, providing for automatic loss of citizenship by a naturalised citizen “if he or she engages, under the flag of another country, in a war that the Republic does not support”, leaving lawyers wondering how you would know whether or not the Republic “supported” a particular war (and would it matter which side the person was on?).[15]

The practice

But this review of deprivation provisions has a slightly unreal feel. These procedures are hardly used, so far as one can tell. Only South Africa publishes any statistics — or at least it used to do so — revealing that at least 17 people have been deprived of citizenship since 2001-02 (despite the constitutional ban on deprivation), though no details are given.[16] Countries such as Kenya and Nigeria, both facing well-publicised and serious security threats from the Al-Qaeda-affiliated Al-Shabaab and Boko Haram are not known to have deprived any individual of citizenship through the formal procedures of the law on deprivation.[17]

The legal provisions on deprivation of citizenship are, in fact, more or less irrelevant in countries where (a) as described above, citizens from birth cannot be deprived of citizenship under law except in the rather rare circumstance of working for another state despite a formal request not to do so; (b) naturalisation is very difficult to obtain; and (c) the government has easily accessible other means of achieving the same result in relation to (people who believed they were) birthright citizens, obviating any need to amend the law on withdrawal of nationality.

As regards (b), statistics on naturalisation are hard to come by, but it seems that only a handful of people a year may be naturalised in most countries – even in Nigeria, with more than 150 million people, only around a hundred people acquire nationality by naturalisation or marriage annually – and those who are naturalised are mostly non-Africans operating in the formal economy, with all the panoply of lawyers and documents to support their claim.[18] So few people are involved, and the procedures for obtaining naturalisation are so highly discretionary, that it seems unlikely that anyone who has the slightest possibility of becoming a threat to the security of the state could pass that barrier — and therefore be at risk of subsequent deprivation. It’s not impossible of course; but very unlikely. South Africa has had much more accessible naturalisation procedures, rendering it perhaps more vulnerable in this regard; but the numbers have dropped dramatically in recent years, without explanation.[19]

Therefore, (c) comes into play. The methods traditionally used in Africa to “denationalise” a person are simply to deny that he or she ever had nationality to start off with; to argue that the nationality documentation previously held was issued in error, or to fail to issue or renew a document providing proof of nationality (not even requiring an allegation of fraud). The key amendments to nationality laws in Africa have not been to increase government powers to deprive, but to restrict access to nationality based on birth and residence and to exploit any ambiguity in the rules applied on succession of states at independence.[20] These are the methods used against some high profile individuals: Kenneth Kaunda of Zambia and Alassane Ouattara of Côte d’Ivoire most famously; but also John Modise of Botswana, who found himself no longer considered a national by birth when he set up a political party in order to run for president. These cases reached the African Commission on Human and Peoples’ Rights, but there are many others litigated only at national level involving politicians, journalists or activists.[21]

UNHCR’s clear guidance is that a retrospective finding that a person was not a national and was issued nationality documents in error is just as subject to rules on arbitrariness as any procedure under formal provisions on deprivation.[22] However, under national law, why bother with deprivation proceedings if you can manage matters so much more easily by other methods? And this applies especially when whole categories of people are seen as problematic, or potentially so.

It is, in fact, not the individual difficult cases that raise the greatest concerns in the African context, but the tendency to attribute collective responsibility to whole groups of citizens when a country is faced with a (real or perceived) security threat – or simply an organised opposition with support from a particular ethnic group. Faced with the challenges of “nation-building” in states created by colonial fiat, the question of who belongs is not necessarily an obvious one to answer. African states have a history of mass expulsions based on ethnic grounds — there is even a style of bag known in Nigeria as a “Ghana Must Go” bag, dating to one such episode in the 1980s when (actual or alleged) Ghanaians had to pack up and leave — and it remains the case that the usual approach is to assert that someone is a non-national, and then expel them.[23] The prevalence of such practices led to the inclusion of a specific provision banning mass expulsions, not found among similar treaties, in the African Charter on Human and Peoples’ Rights.[24] Even where those who have been expelled fail to find recognition in their alleged country of origin, they may be unable to reclaim their status in the former country of residence: among those persons of Eritrean origin who were expelled by Ethiopia to Eritrea during the 1998 war between the two countries, a number subsequently became refugees from the highly repressive Eritrean regime. Even in their case, when some applied for reacquisition of Ethiopian nationality, they were reportedly told that they were security risks, so could not get papers.[25] 

In Kenya, discriminatory measures in relation to documentation and identity have been sharply stepped up against Kenyan Somalis and coastal Muslims, tarred with the brush of the Westgate Mall siege and other outrages. In addition to a general round up and detention of suspected youth, the issue of national ID cards has been suspended in the three counties that are located in the former North Eastern Province bordering Somalia (Garissa, Wajir and Mandera Counties, created by the 2010 Constitution), meaning that those without IDs cannot travel out of that zone, and effectively lose the reality of citizenship rights — without the need for the government to undertake any bothersome legal proceedings.[26] In Nigeria, the peculiar features of the country’s federal system have led to the possibility of “denationalisation” from a particular part of the country, even though such measures haven’t been taken at national level. In the context of the threat from Boko Haram, governors of states in the south-east of the country in 2014 stepped up long-standing discrimination based on the idea of “indigeneity” to adopt controversial measures to register and possibly deport “non-indigenes”, leading to an emergency meeting of the National Council of State in July 2014 to condemn these practices (but no action beyond establishing a committee to make recommendations).[27] Ghana’s consul-general in Nigeria indeed recently blamed the Boko Haram insurgency on “stateless people” excluded from the benefits of citizenship, and urged efforts to strengthen documentation across the sub-region.[28]

There are the beginnings of recognition that stronger guarantees around the right to a nationality may be part of the solution to some of the security challenges in the continent. The African Commission on Human and Peoples’ Rights is working with the AU Commission in Addis Ababa to draft a protocol to the African Charter on the right to a nationality.[29] The African Committee of Experts on the Rights and Welfare of the Child recently adopted a General Comment on the rights of children to a name, birth registration and a nationality.[30] In parallel, there is a major push to improve documentation through the initiation or strengthening of requirements to hold a national identity card, for civil registration in general, and for the use of biometric data in these documents. But this push on information technology carries significant risks that governments will seek only to police the boundaries of their systems, excluding anyone of “doubtful” nationality, while failing to reform legal provisions and administrative practices that restrict access to nationality for those who constitute no security threat at all. To date, the international agencies responsible on these issues — especially UNHCR, UNICEF and IOM — are also failing to join up the dots with a coherent approach on nationality and documentation in their interventions with national governments. Given the very real security threats they face, it remains an open question whether governments such as Nigeria’s and Kenya’s will commit to more secure rights to citizenship, rather than only more secure documentation.



[1] Botswana, Burkina Faso, Burundi, Chad, Comoros, Ethiopia, Gabon, Gambia, Ghana, Kenya, Lesotho, Libya, Mauritius, Namibia, Nigeria, Rwanda, Seychelles, Somalia, South Africa, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe. In the case of Botswana, Ethiopia, Libya, Tanzania and Zambia, dual nationality is not permitted, and voluntary acquisition of another nationality results in automatic loss. Lists from Bronwen Manby, Citizenship Laws in Africa: A Comparative Study, Open Society Foundations, 2nd edition 2010; updated information for a forthcoming 3rd edition. On the number of states in Africa: Morocco is not a member of the African Union, while the Sahrawi Arab Democratic Republic is: if both are counted, there are 55 states.

[2] Angola, Cameroon, CAR, Congo Republic, Côte d’Ivoire, Djibouti, Egypt, Equatorial Guinea, Eritrea, Guinea, Guinea Bissau, Liberia, Madagascar, Morocco, Mozambique, Sao Tomé & Príncipe, South Sudan, Sudan, Togo and Tunisia.

[3] Egypt Law No. 26 of 1975 Concerning Egyptian Nationality, Article 16(7); Eritrea Nationality Proclamation 1992 Article 8; Mali Nationality Code 1962, Article 43 (amended 1995).

[4] Law No. 26 of 1975 Concerning Egyptian Nationality, Article 16(7), translation from UNHCR website, http://www.refworld.org/docid/3ae6b4e218.html. Libya had similar rules until they were changed in 2010.

[5] South Africa Constitution 1996, Article 20; Ethiopia Constitution 1993, Article 33.

[6] Kenya Constitution, 2010, Section 17.

[7] Burundi Constitution 2005, Article 34; Malawi Constitution 1994 (as amended to 1998), Article 47 ; Rwanda Constitution 2003, Article 7.

[8] Gambia Constitution 1996, article 13; Ghana Constitution 1992 Article 9, Citizenship Act 2000, Article 18; Liberia Aliens and Nationality Law 1973, Articles 21.53; Rwanda Nationality Law No.30 of 2008, Article 20.

[9] Most of the civil law countries provide quite detailed procedures for nationality litigation through the courts; the Commonwealth countries tend to have weaker protections, and do not have the same tradition of providing procedures in the substantive law itself, but South Africa for example, provides for all decisions of the minister to be reviewable by the courts, as do Gambia and Kenya.

[10] Lesotho Constitution 1993, as amended to 2001, Article 42 (however, this provision is not respected in the Citizenship Order 1971 Article 23); Mauritius Citizenship Act 1968, as amended to 1995, Article 11(3)(b); Namibia Constitution 1990, as amended to 2010, Article 9(4); Rwanda Nationality Law 2003, Article 19; Senegal Nationality Code 1961 as amended 2013, Article 21; South African Citizenship Act 1996, as amended 2013, Article 8; Zimbabwe Constitution 2013, Article 39(3) (but this is not respected in the Citizenship Act, 1984, as amended to 2003, Article 11(3), which provides in principle prohibition of rendering a person stateless, but allows the minister to override if it is in the “public good” to do so).

[11] Botswana Citizenship Act 1998, Article 22; Lesotho Citizenship Order 1971, Article 26; Malawi Citizenship Act 1966, Article 29; Mauritius Citizenship Act 1968 Article 17; Seychelles Citizenship Act 1994, Article 14; Tanzania Citizenship Act 1995 23; Zambia Citizenship Act Article 9; Zimbabwe Citizenship Act 1984 Article 16.

[12] Swaziland Citizenship and Immigration Act 1992, Article 20.

[13] Namibia Citizenship Act 1990, Article 9(3)(e).

[14] Section 11A of the Citizenship Act, No. 18 of 1994, inserted by Act 11 of 2013.

[15] South African Citizenship Act 1996, as amended 2013, Article 6(3). This amendment came into force on 1 January 2013. The 1996 Constitution provides in Article 20 that “No citizen may be deprived of citizenship.” It is possible that the phrasing of the revised Article 6(3) is designed to avoid this prohibition by providing for automatic loss. See further Submission on the South African Citizenship Amendment Bill, B 17 – 2010, Citizenship Rights in Africa Initiative, 6 August 2010.

[16] The numbers of deprivations given in annual reports of the Department of Home Affairs are:





















See http://www.dha.gov.za/files/Annual%20Reports/, last accessed 17 November 2014. The 2002/03 Annual Report is not on the website (nor are earlier years) and the 2012/13 and 2013/14 Annual Reports have ceased publishing any statistics on citizenship procedures; so it is impossible to know if the 2010 amending act has had any effect on deprivation figures.

[17] Email correspondence, November 2014, with Chidi Odinkalu of the Nigeria National Human Rights Commission and Adam Hussein Adam of the Open Society Initiative for East Africa, both following these issues closely.

[18] Bronwen Manby, Nationality, Migration and Statelessness in West Africa, UNHCR and IOM, forthcoming, 2015.

[19] According to South Africa’s Department of Home Affairs Annual Reports, the numbers of people naturalised each year up to 2011-2012 are as below:





















No explanation is given for the dramatic fall in numbers in the last two years of statistics.

[20] Bronwen Manby, “Trends in citizenship law and politics in Africa since the colonial era”, chapter in Engin F. Isin, and Peter Nyers (eds.), Handbook of Global Citizenship Studies, Routledge, 2014.

[21] See Bronwen Manby, Struggles for Citizenship in Africa Zed Books, 2009, chapter 7, for an account of these and other cases where denationalisation has been a tool of censorship; and Manby, Citizenship Laws in Africa for a discussion of the jurisprudence of the African Commission.

[22] Expert Meeting - Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality ("Tunis Conclusions"), UNHCR, March 2014, especially paragraph 9.

[23] See Manby, Struggles for Citizenship in Africa, Chapter 4.

[24] Article 12(5) of the African Charter.

[25] Amsale Getnet Aberra, “Ethiopians in Limbo: from statelessness to being a refugee in one’s own country”, ECADF Ethiopian News and Opinions, 14 February 2014.

[26] Email communication, Adam Hussein Adam, OSIEA, November 2014.

[27] “Council of State moves to ‎stop citizens’ registration, deportation” The Citizen, Abuja, 1 August 2014. On the history of discrimination in relation to nationality in Kenya, see Manby, Struggles for Citizenship in Africa, Chapter 6; on Nigeria and “indigeneity”, see Chapter 5.

[28] “Envoy Blames Insecurity in Nigeria, Others on Stateless People”, Premium Times, 29 April 2014.

[29] See ACHPR Resolution 234 on the Right to Nationality, 53rd Ordinary Session, 9- 23 April 2013, Banjul, The Gambia; Resolution 277 on the drafting of a Protocol to the African Charter on Human and Peoples’ Rights on the Right to Nationality in Africa, 55th Ordinary Session, 28 April to 12 May 2014, Luanda, Angola.

[30] Available at the Committee of Experts website: http://acerwc.org/the-committees-work/general-comments/.



Revocation of citizenship of terrorists – a matter of political expediency

By Kay Hailbronner (University of Konstanz and member of the EUDO CITIZENSHIP advisory board)


Let’s be clear: We are not in a dispute about the use of denationalisation policies to get rid of unwanted citizens who do not comply with a code of conduct how to behave as a “good” or “loyal” citizen. Nor are we talking about deprivation or revocation of citizenship on account of race, political opinion, religion, descent etc. There are clear rules of public international law prohibiting discriminatory citizenship policies and none of the policies discussed here call these into question. What we are discussing is the different and by no means absolutely novel issue of revoking the citizenship of persons who have given up or are irrefutably considered as having renounced that basic attachment which distinguishes citizenship from a residence permit. A recent report of de Groot and Vink for the European Commission lists voluntary military service and non military public service in nine, and eight EU countries respectively as a ground for revocation of citizenship, subject of course to some restrictions (prevention of statelessness) and exceptions.

In around half of the 28 countries included in the study, seriously prejudicial behaviour is considered as a ground for revocation of citizenship. The European Convention on Nationality of 6 November1997 provides for  revocation of citizenship for conduct seriously prejudicial to the vital interests of the State party ( Art.7 para 1 lit.d). Very similar provisions on revocation are laid down in Art. 8 para 3 of the Convention on the Reduction of Statelessness of 1961.

What is new is the inclusion of a specific type of seriously prejudicial behaviour which is considered as endangering the safety of the population of a state and its security into this catalogue. The actors are not totalitarian or authoritarian regimes but democratic states with well established institutions to protect human rights and to ensure the rule of law. Not that the democratic character of the states in question would dispense us from closely watching the transfer and exercise of powers to the executive branch, particularly I  such a rights-sensitive area as denationalisation policies. Safeguards against arbitrary actions and abuse of power, conditions and procedures must be predominant on the watch list, as Peter Schuck rightly emphasizes. But why should revocation of citizenship of terrorists result  inevitably in arbitrary and abusive exercise of power, as Audrey Macklin assumes?

What makes international terrorism so distinctive is not only its criminal and administrative relevance, but also its relevance for discontinuance of that special relationship established by citizenship. In order to answer this question it  is not sufficient to conjure up emphatically  the uniqueness of the ties between a citizen and a state. It is true that citizenship establishes a special relationship based upon security and stability. Security and stability on the side of the individual citizen require that denationalisation remains a rare exception.  Citizenship implies rights, whether it is designated as a privilege, as a right to have rights or as a contract. For that reason deprivation of citizenship requires  an overriding public interest and is subject to proportionality. 

Ordinary crimes, even of a serious nature, have not been considered as sufficient under Art. 7 of the European Convention to destroy the bond of citizenship. Yet, fundamental and persistent alienation from the nation as a political community   has – in spite of divergent interpretations and applications – frequently  been considered as a justification for revocation of citizenship. Democratic states in the defence of their constitutional order and protection of the safety of their population and the security of the state are not restricted to  a regime of criminal and administrative sanctions if  their own nationals turn against them.

Legal comparison shows that there is no uniformity. States, according to their particular political conditions, and history that is sometimes reflected in constitutional provisions, have largely prohibited involuntary revocation of citizenship.  Germany is one example, though it provides for loss of citizenship for voluntary service in foreign military services or in case of voluntary acquisition of a foreign citizenship. Other states, like Britain, have applied the concept to high treason, espionage, etc.  International treaties, like the European Convention on Nationality of 1997 or the Convention on the Reduction of Statelessness provide further barriers. States may not provide for the loss of nationality if the person concerned would become stateless (except in case of fraud). One could discuss what this means if a state’s national joins a group or organisation, such as the “Islamic State”, which is dominating a state-like territory and exercises state-like authority. 

Discussion of the international and constitutional law prerequisites of revocation of citizenship is not the concern of Audrey Macklin. She argues primarily with illegitimacy.  As a lawyer I have some difficulty with this term. If it is not illegal, what are the criteria for illegitimacy or immorality?  Her personal idea of how democratic states should behave? That of course may be an acceptable political reasoning, provided I learn more about its ideological premises which I may share or not.  I do understand  Peter Spiro’s objection about the revocation of citizenship as a” security theatre” although I feel not confident on the basis of the  facts to judge whether  it is true that  revocation of citizenship for international terrorists is  impractical and irrelevant. The arguments of illegitimacy, in my view are hardly convincing. Assuming that revocation of citizenship is a (prohibited) form of punishment simply ignores the legal nature of revocation of citizenship. It is not destined to sanction acts of international terrorism, in addition to a potential criminal or administrative sanction. By untying the bond of citizenship, the former citizen can no longer rely upon his/her citizenship for unlimited entry and residence and free international travel. The further argument that there is no chance of rehabilitation is based on the same misunderstanding of revocation of citizenship as a special form of punishment. Citizenship of such persons is revoked because they have given up their attachment to a community by attacking the very fundament of that community, not by merely violating its internal rules of public order. To talk in this context of an inalienable right of rehabilitation, distorts the purpose of citizenship revocation.

The hard questions arise with the formulation of a precise and judicially reviewable provision authorising the executive to revoke citizenship. International terrorism as such is a term open to divergent interpretations. We do, however, have quite some experience, based upon the jurisprudence of national and international courts and Security Council Resolutions, in defining international terrorism. In order to be effective, a provision must include such actions as joining extremist organisations for training in order to use such training for participation in terrorist activities, as well as a membership in an organisation destined to fight against the state whose citizenship the person concerned possesses.

A further question is whether the introduction of a new provision on revocation of citizenship serves a useful purpose.   Utility cannot be denied by reference to criminal law. It goes without saying that acts of international terrorism should be punished and that administrative action should, where possible, be taken to limit the use of passports for international travel for the purpose of preparing or assisting international terrorism – the technical and cynical use of citizenship rights, as Peter Schuck has phrased it. Criminal and administrative sanctions are always attached to specific activities. They do not cover the aspect of using citizenship in a general and in principle unforeseeable manner for acts destined to endanger the security of the state of which the perpetrators are citizens.

The cosmopolitan nature of this type of terrorism, as Christian Joppke has aptly described it, is misunderstood by Vesco Paskalev when he argues that the jihadists do not care about their citizenship. They might indeed not care about their attachment to the state whose citizenship they posses  but they do care about the possibilities that a Canadian, US, British or German passport conveys with visa-free international travel, free entry and residence  in their  “home” country  and diplomatic protection if something does not go quite as smoothly as expected.

Revocation of citizenship means a substantial interference with individual rights. It can only be justified if tightly defined material conditions in accordance with the constitutional law of each country and its international commitments are fulfilled. Risk assessment and proof of an affiliation, assistance or membership in an international terrorist organisation will be essential elements in this procedure. Whether there is a practical value in revocation of citizenship for citizens engaged in international terrorism in addition to criminal and administrative sanctions is within the framework of law a matter of political expediency which may well lead to different results in different countries.   



Whose bad guys are terrorists?

By Rainer Bauböck (EUDO CITIZENSHIP co-director)


Peter Schuck, Christian Joppke and Kay Hailbronner have provided strong arguments why liberal democracies should have the power to strip terrorist suspects of their citizenship. As good lawyers, Schuck and Hailbronner add that such power must be exercised with restraint and hedged in by the rule of law. 

Everybody in this debate agrees that terrorists ought to be punished. Most would also agree that liberal states need exceptional powers in order to prevent terrorism and that this justifies some constraints on freedom of speech and association, for example by making incitement to terrorist violence or joining a terrorist organisation punishable crimes.  

Terrorists commit particularly evil crimes. Yet denationalisation does not look like punishment for these crimes. First, it is normally based on executive order rather than court judgment. Second, it does not meet the standard purposes for criminal punishment. It cannot be justified as retribution, since it is not proportionate to the monstrosity of the crime. It does not promote rehabilitation, since the effect is to remove the criminal from the jurisdiction. And it is not effective in deterring or preventing terrorist crimes, since – as Vesco Paskalev has argued global jihadists hardly care about losing citizenship status in a Western democracy that they detest. 

Hailbronner points out that terrorists care about losing their right to travel, but restricting their freedom to move can also be achieved by other means, e.g. by invalidating their passports without denationalising them. Banishing jihadists to exactly those states where they want to go anyway to commit their atrocities can hardly count as an effective strategy against global terrorism. As a political scientist I suspect that governments have other motives apart from policy effectiveness when they seek denationalisation powers. They do not only want to do something against terrorism, they also want to be seen by voters as doing something. Stripping terrorist suspects of their citizenship is a strongly visible policy and for that reason possibly also a strongly symbolic one, as suggested by Peter Spiro. 

This is not yet a conclusive refutation, since on some views it is exactly the symbolic nature of the sanction that justifies the denationalisation of terrorists. This argument starts from the assertion that liberal democracies are value-based political communities. Their basic values include freedom of conscience and religious practice, of speech and association and democratic self-government. Since these states are liberal, they cannot force their citizens to share their basic values. These are instead enshrined in their constitutions and their political institutions are designed to protect these values. Terrorists do not merely reject liberal values, they act to destroy the very institutions that protect these values. So why should liberal states not take away citizenship from those who attack the very foundations of liberal citizenship? Wouldn’t this serve to defend these states’ core values?

The answer is that the norms guiding the acquisition and loss of citizenship status have little to do with either the promotion or the defence of liberal values. In all states, including liberal ones, citizenship is acquired automatically at birth and normally retained over a whole life. Native citizens are never asked to show their commitment to liberal values as a condition for retaining their citizenship, nor are they stripped of their status when they commit crimes. Serious criminals are locked up in prison and thereby stripped of many citizenship rights, most importantly that of free movement. In some countries they also lose – and in my view much more questionably – voting rights. But they do not lose their citizenship status. Citizenship in our world has an extremely sticky quality. It does not have an expiry date, it can be passed on to subsequent generations and it can be carried abroad and increasingly also exercised from outside the state territory. 

Yet many liberal states have introduced citizenship tests or naturalisation oaths in which immigrants are asked to affirm their commitment to the polity and its constitution.(1)  Doesn’t this show that acquisition of citizenship status and therefore also its loss may depend on a commitment to liberal values? No, it doesn’t. Leaving aside the tricky question whether such commitments can be tested by filling in a questionnaire or taking an oath, naturalisation integrates newcomers into a political community that is based on birthright membership and equal citizenship. No matter how they have been selected and how they have acquired their citizenship, all citizens have equal membership status and those who have got it through naturalisation can retain it in the same way as if they had got it by birth. 

This statement needs two minor qualifications. First, if citizenship has been acquired unlawfully, for example through concealing a criminal record, then it may be withdrawn. This reasoning cannot be applied to citizens who assert their commitment to a liberal constitution in a citizenship test or loyalty oath that they subsequently violate. Because liberal states cannot force ordinary citizens to support their core values, they also cannot claim that citizenship status has been acquired unlawfully if a naturalisation applicant was not sincere when swearing loyalty or was sincere and subsequently changed his views. 

Second, the norm of equal treatment of native and naturalised citizens is not accepted by all liberal states – as we all know, the American President must be a native citizen. It is, however, enshrined in Art. 5 of the 1997 European Convention on Nationality and it is not difficult to see why unequal treatment of citizens based on their circumstances of birth is discriminatory and undermines the core value of equality. Faced with terrorism that is now no longer just imported but also home-grown, Western governments may anyhow be reluctant to limit the application of their denationalisation powers to naturalised immigrants. 

There are two closely connected reasons why citizenship status is sticky and why it should not be taken away even for acts that attack the foundations of the polity. The first reason has to do with the function of nationality in the international state system. Citizenship is a mechanism for assigning responsibility for individuals to states. In its 1955 Nottebohm judgment the International Court of Justice asserted that citizenship should be based on a genuine connection in order to prevent  states from abusively bestowing their citizenship on individuals residing abroad who want to escape a legal duty towards their host country. The same genuine link argument has been invoked by the European Parliament and Commission against Malta in January this year as an objection against the sale of EU citizenship to wealthy foreigners without a residence requirement.(2)  If states can abuse their powers to confer citizenship by naturalising foreigners who lack a genuine connection, they can also do so by denationalising their citizens in order to shift responsibility for them to another state. This is exactly what happens when Western countries deprive terrorist suspects of their citizenship. As Audrey Macklin has already explained, the effects can be particularly perverse for dual citizens. Since deprivation does not make them stateless, each of the two states involved has an incentive to act first so that the other state becomes responsible. 

International law can thus not provide a full answer to our question. We must also consider what depriving terrorist suspects does to the citizenship bond as an internal relation between an individual and a state. Joppke points out that Germany did not expatriate the left wing terrorists of the Red Army Faction. They wanted to transform the German state whereas the global jihadists de facto renounce their membership by affiliating themselves with an Islamic pseudo-state. But the RAF was certainly as effective in shaking the foundations of a liberal Rechtsstaat by triggering illiberal responses as was Al Qaeda when it fell the twin towers in New York – and much more so than IS, who primarily wants to scare Western powers out of Iraq and Syria. In any case, the question here is not whether Ulrike Meinhof and Andreas Baader had a moral claim to German citizenship that jihadist terrorist suspects do not have. The question is whether Western democracies can shed responsibility for their home-grown citizen terrorists and shoulder it upon other states. This is what the new denationalisation policies are about. 

Imagine for a moment that after 1945 Germany or Austria had posthumously denationalised Adolf Hitler. Would this symbolic act have strengthened their post-war liberal orders by demonstrating their abhorrence of Hitler’s destruction of their liberal constitutions and his genocidal elimination of Jews and Roma from the political community? The answer is clearly no, because Hitler’s denationalisation would have entailed a denial of responsibility for his crimes and their consequences and would thus have achieved the very opposite of the intended defence of liberal values. Moreover, if either Germany or Austria had taken such a decision, it would have signalled that they merely wanted to pass on the buck to the other state. Recognising that Hitler was “our bad guy” was therefore crucial for building a liberal democratic consensus in both countries and good relations with other states that were the victims of Nazi aggression. 

Why should this be different today with the jihadist terrorists? Joppke’s answer involves an attempt to distinguish domestic from global terrorists. This may be often difficult, since Hitler turned out to be a global terrorist too. But the crucial point is that citizenship is by its very nature a domestic relation between an individual and a state. By cutting the bond, states deny their responsibility, including that towards the rest of the world upon whom they inflict the terrorist threat.

If denationalisation were a necessary and effective tool to prevent terrorism, it might be justifiable on such utilitarian grounds. But as a symbolic defence of the liberal values that terrorists attack it is entirely unconvincing.



(1) see EUDO CITIZENSHIP Forum Debate 'How Liberal are Citizenship Tests?' 

(2) See the press release of EU Justice Commissioner Vivian Reding (15 January 2014), the European Parliament resolution of 16 January 2014 on EU Citizenship for Sale, and the EUDO CITIZENSHIP Forum Debate 'Should citizenship be for sale?'



Denationalisation, assassination, territory: Some (U.S.-prompted) reflections                                    

By Linda Bosniak, Rutgers University School of Law    


Unlike the several liberal states Macklin cites which have already, or will soon, deploy citizenship revocation as an anti-terrorism mechanism, the United States is unlikely to implement similar policies. The U.S. Constitution has been interpreted to prohibit unilateral citizenship-stripping as a tool of governance. Instead, denationalisation via expatriation in the U.S. requires the individual to specifically consent to relinquish the status, and such consent cannot be inferred from acts alone – even from acts which some (including some commentators in this symposium) would like to characterise as intrinsically antithetical to citizenship identity. The vigorous safeguarding of individual citizenship in US law is borne of the nation’s history of race-based slavery and its aftermath. Today, courts  quite stringently interpret the Fourteenth Amendment’s guarantee of  citizenship status for “all persons born or naturalised in the U.S.” I realise the matter of slavery will seem remote from the concerns of contemporary transnational debates over citizenship-stripping in Europe and Canada (although it might be worth wondering, another day, if “slavery” could ever serve – along with “political death” – as a fruitful analytic metaphor here. Think, for example, of the recent mass denationalisation of Dominican-born Haitians in the Dominican Republic). Nevertheless, we know that national citizenship law and policy look inward as well as outward. In the U.S., the legacy of slavery forms a part of a deep conversational grammar about citizenship in a way that will almost certainly stay the hand of congressional advocates of the “Enemy Expatriation Act” and similar proposed measures.  

That the US is not about to join Britain and Canada and other states in a politics of forcible expatriation, however, by no means implies that the US does not wish to “permanently eliminate” suspected or confirmed terrorists, nor that it is unable to do so. Indeed, we have recently seen deployment by the U.S. of what Macklin calls  “the sovereign’s other technique for permanent elimination” of such persons: namely: state-inflicted death. The 2013 assassination of U.S. citizen Anwar al-Awlaki in Yemen was a widely noted recent example of this policy (with the apparently accidental assassination Anwar’s 16-year-old U.S. citizen son, Abdulrahman, a notorious follow-up.)  For some commentators, state acts of this kind may appear more “proportional” to the claimed offenses than expatriation is. Personally, I would not endorse any policy of assassination, much less when visited upon its target without application of due process. But my comments don’t concern the policy’s defensibility. Instead, I raise the al-Awlaki case to frame a few brief observations about the relationship between citizenship-stripping, targeted assassination and territoriality in the United States and beyond.  

First, as Macklin points out, states strip citizenship not merely in order to territorially banish the affected going forward but sometimes perhaps, as a “prelude to assassination,” whether by themselves or others. In particular, Macklin cites the cases of Britons who were denationalised and subsequently killed by US drone strike in Somalia.[1] Denationalisation here can be understood to have strategically relieved Britain of the imperative of protecting its own nationals from harm, including assassination, by another state party.  In this scenario, denationalisation is not merely a form of political death; as Macklin argues, it may facilitate bodily death as well.  

Nevertheless, we have also seen that since United States law makes it “easier to kill than expatriate,” in Peter Spiro’s succinct phrasing,[2] the U.S. government does not await denationalisation to assassinate its own citizens.  We could, indeed, view assassination of al Awlaki senior as the nation’s only route to denationalise him, with assassination serving as the actual mechanism for stripping his citizenship.  

On the other hand, al Awlaki’s assassination precipitated a fascinating debate in the United States about territoriality and citizenship which perhaps bears on our transnational conversation here. In the wake of the killing, a segment of the US political class erupted in concerted anxiety about whether the government actually claimed authority not only to assassinate US citizens abroad but to do the same “on US soil.”  Senator Rand Paul led a filibuster against the confirmation of proposed CIA Director John Brennan, promising to “speak as long as it takes until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, [and] that no American should be killed by a drone on American soil without first being charged with a crime, [and] found…guilty by a court.” Much media fan-flaming followed, and eventually, Attorney General Eric Holder conceded that targeting any U.S. citizen for assassination within national territory—in the absence of imminent threat – is unacceptable. [3]  

What was striking in this episode was the normative distinction taken up in popular discourse between in-country and out-of-country citizen assassination. The implied claim was that death of a citizen by its own government was somehow uniquely intolerable when accomplished inside national territorial bounds. For that moment, at least, the American political imaginary seemed to coalesce more around fear of tyrannical government than of the foreign terrorist within.  

Of course, if government were in fact bound by this normative logic – i.e., that territorially present citizens are uniquely out of bounds for targeted killing – then the target would need to be denationalised and/or territorially expelled first and only executed thereafter. Yet since the US state is constrained in denationalising citizens, and since, like all states, it is precluded from expelling citizens, it would seem to have to await such person’s travel outside the country in order to strike.   This seems odd, yet it notably parallels the form denationalisation practices take in many countries – where, according to Macklin, governments tend to strip citizenship from those citizens who are already located abroad. In both settings, we see not only that territorially-present citizens are regarded as possessing more fundamental protections against government power than those territorially absent, but that governments make opportunistic use of citizen absence to act against them.  Among other things, this amounts to a kind of penalty on citizen mobility, and seems to rest on an arbitrary locational distinction. This, at least, is what the US Supreme Court itself concluded in 1957 in a related context when it wrote that a citizen’s constitutional rights may not “be stripped away just because he happens to be in another land.”[4]  

Of course, territoriality’s relationship with citizenship sometimes reaches back well beyond any possible denationalisation and assassination to the moment of the citizen’s birth. For some, the Awlaki affair itself evoked longstanding debates about assignment of citizenship based on territorial presence at birth, with Awlaki an exemplar of the “nominal citizen” whose extraterritoriality for most of his post-natal life rendered his social attachment to the nation “highly attenuated” (to use Macklin’s phrase).  Yet in this setting as well, the United States will remain robustly-citizenship protective. The country’s inclusive birthright citizenship rules are another stanchion of its post-slavery, post-Civil War, constitutionalism.  Consequently, and much as some “anti-birthers” wish it were otherwise, citizenship cannot be easily eliminated on the front end here, except by way more stringent immigration and border control policies to prevent, ex ante, potential parents’ territorial presence. Broadly drawn and often selectively-applied grounds of inadmissibility and deportability based on “terrorist activity” arguably go some of the distance in accomplishing that end.[5] 

In short, citizenship status, especially for those in national territory, still remains more secure in the U.S. than it is in some other national settings.  Our government works to counter the alleged “bad guys”  (Baubock’s shorthand) by different means.      

[1] See “British terror suspects quietly stripped of citizenship… then killed by drones,” The Independent, 28 February 2013 and “Britain Increasingly Invokes Power to Disown Its Citizens”, New York Times, April 9, 2014
[2] Spiro, Expatriating Terrorists, 82 Fordham L. Rev. 2169, 2177 (2014).
[3] For more extensive discussion and citations, see Bosniak, Soil and Citizenship, 82 Fordham L. Rev. 2069 (2013).
[4] Reid v. Covert, 354 U.S. 1 (1957).
[5] E.g., Stephen H. Legomsky, The Ethnic and Religious Profiling of Noncitizens: National Security and International Human Rights, 25 Boston College Third World Law Journal 161 (2005)


Human rights for all is better than citizenship rights for some

By Daniel Kanstroom (Boston College Law School)    


This is an exceptionally rich and challenging discussion in which I am honored to participate, though time and space limitations will inspire brevity. Audrey Macklin’s essay reaches two major conclusions with which I heartily agree:  

  1. Citizenship-stripping weakens the concept of citizenship;
  2. It is of highly-questionable efficacy and legitimacy as punishment;[1]

Despite my deep agreement with Macklin about the dangers of denationalisation trends in the UK, Canada, and elsewhere, I am not convinced that she has chosen the best way to counter them. In brief, I fear that Macklin may have missed some of the forest for the trees.  

My view of the forest is this: Denationalisation should be situated against a broader backdrop in which pervasive rights deprivations against noncitizens – and even such extraterritorial rights deprivations against citizens as drone strikes – are central components. Macklin points us in this direction when she distinguishes the aspirational safe harbor of citizenship from a functional methodology:  

“But my point is not to propose a metric capable of measuring the quantitative, qualitative, experiential, emotional, personal, familial, cultural, social, financial, linguistic and political impacts of exile on any individual, in order that some state official could determine precisely when citizenship revocation inflicts an appropriate versus excessive degree of punishment.”  

I fully support Macklin’s desire to enhance, “the security that distinguishes legal citizenship.” I worry, though, about what certain approaches to such security might mean for, “other statuses that define the relationship between state and individual.” The challenge is to protect citizenship rights without relegating those “other statuses” unduly tenuous and marginal.  

Put simply, I suggest that the best way to do this is less (formally) citizenship–centered and more (functionally) rights-centered. By “rights-centered,” I mean, essentially, a critical examination of state practices (including the government’s intentions and justifications, and the practices’ mechanisms, and effects) measured against the norms of a fully-developed human rights protection system.[2] More specifically, the important legal and policy questions raised by Macklin may be best answered by viewing denationalisation along a continuum of state practices that use citizenship status and territorial formalism to achieve policy goals with weakened (and in some cases no) rule of law encumbrances. This is one of the great human rights legal challenges of our times. It must be engaged fully – in all of its manifestations – in order to be properly understood and effectively engaged.  

Macklin rightly notes that, “…citizenship revocation is best understood as a technique for extending the functionality of immigration law in counter-terrorism.” Moreover, “[s]ince 2001, states have turned to deportation to resolve threats to national security by displacing the embodied threat to the country of nationality.” However, the deep significance of these insights may be lost by too formalistic and narrow an examination of the particular practice of denationalisation. A basic reason for this is the powerful attraction—symbolic and practical--of citizenship as a safe harbor. That, in and of itself, is unobjectionable. But it risks denigration of the rights claims of noncitizens. Let me emphasize that I do not think that Macklin intends this at all. Still, her method may take us there.  

Here is an example. Macklin writes, “Banishment fits the crime of disloyalty the way capital punishment fits the crime of murder.” This works for me passably well as analogy (though, of course, the “crime” of disloyalty is a much more complex proposition than murder). But the analogy prompts a question: How does banishment (of citizens) differ from what I have termed “post-entry social control deportation,” which in the U.S. has resulted in lifetime exclusion of many thousands of long-term legal residents from their families and communities due to minor criminal offenses?[3] Does their lack of citizenship status render the death penalty analogy less apt? In another passage, Macklin correctly worries about “arbitrary and prejudicial abuse of a discretionary power.” What do we make of the fact that such abuses are rare against citizens and troublingly common against noncitizens? Macklin is thus right, but perhaps insufficiently expansive when she asserts that the particular practice of denationalisation “is exile.” Is denationalisation categorically different from expulsion and removal of long-term legal residents because, as Macklin argues, it “extinguishes a singular right of citizenship, namely the right to enter and to remain”?  This seems formalistic and perhaps a bit circular. A fuller exploration might consider the actual effects of deportation and denationalisation on people of various statuses, various levels of assimilation, and various fears of harm. This would help explain why the “right” to enter and remain is so crucial to protect against disproportionate or arbitrary state action against all people.  

My main concern is about the potential implications of Macklin’s methodology. The formalistic reification of citizenship may justify the relegation of noncitizens to a nether world of inferior balancing tests.[4] This is especially the case if that reification is connected to an implicitly exclusive set of rights claims to enter and remain. Noncitizens have such rights, too, at least under certain circumstances. Insufficient attention to such rights – though they are concededly still works–in-progress – is especially dangerous where the rights claims at issue include the right to life, to proportional punishment, to family unity, against arbitrary detention, and to procedural fairness.  

Let us also consider the etiology and evolution of denationalisation. Harsh expulsion and exclusion practices against noncitizens can provide a conceptual matrix that facilitates similar practices against citizens. As Thomas Jefferson – writing to oppose the Federalists’ Alien Friends Act, Alien Enemies Act, and Sedition Act – warned in 1798: “The friendless alien has indeed been selected as the safest subject of a first experiment, but the citizen will soon follow...”[5] The best response to this concern, however, is not a regime of exclusive protections only for citizens. Rather, we should strengthen reasonable (procedural and substantive) human rights protections for all people, regardless of status or location. I expect that Macklin would not strongly disagree with this. Still, insufficient attention to such experiments against noncitizens have had metastatic tendencies in the past.  

Denationalisation should not be viewed as an anomalous practice that requires a unique normative critique grounded on a strong, formalistic conception of citizenship as the (supposed) Arendtian “right to have rights.” Rather, it should be viewed as the apotheosis of an evolving array of exclusion and removal practices, as well as the episodic search by governments for what some termed Guantánamo Bay: “a legal black hole.” [6] A more capacious analysis would thus not only critique the British, “conducive to the public good” standard as relegating citizens to the status of permanent residents. It would equally question the standard’s legitimacy and propriety for the latter group.[7] (Indeed, its attempted application to citizens might be ironically salutary, as political opposition will be more readily mobilised if it is practiced widely.)  

Easy denationalisation deserves normative and practical critique, to be sure. As Rainer Bauböck properly highlights, citizenship is (and should be ) “sticky” and thus denationalisation must be justified as punishment. This practice is ill advised, problematic, and especially difficult to justify in liberal democracies for the reasons he highlights. However, critique should be primarily grounded in a broader set of human rights norms that apply whenever a state seeks to use its power disproportionately or arbitrarily against anyone anywhere. This is especially important for those who are strongly assimilated, who would be rendered juridically or functionally stateless or who would face severe harm, persecution, or torture.  

In a similar vein, I would not recapitulate the rather formalistic and ultimately sterile debate between a “right” and a “privilege,” nor rely too readily on Justice Earl Warren’s channeling of Hannah Arendt. When Warren asserted that citizenship is “the right to have rights,” he was tactically using this phrase to justify a particular position in a dissent in a 1958 case.[8] The case involved a U.S. citizen (by birth) who had lived much of his life in Texas but had been raised in Mexico. He later returned there, apparently to avoid US military service. He had also voted in Mexico.[9] The court narrowly upheld the denationalisation (also called “expatriation”). Justice Warren wrote a somewhat rambling dissent built around the (unattributed) reference to Arendt.[10] He concluded with two apparently contradictory propositions. The first was seemingly absolute, if a bit puzzling: “The Government is without power to take citizenship away from a native-born or lawfully naturalized American.”[11] The second conclusion focused on the intention of the citizen: “The citizen may elect to renounce his citizenship, and under some circumstances he may be found to have abandoned his status by voluntarily performing acts that compromise his undivided allegiance to his country.” Thus, even Justice Warren accepted that certain conduct could justify expatriation, so long as the conduct was voluntary.[12] But this fits poorly with the absolutist reading of the “right to have rights.” Who would voluntarily relinquish the right to have all rights?  

Later U.S. cases elaborated on the criterion of voluntariness, ultimately elevating it to the dominant principle.[13] However, as Justice Harlan once noted, the historical evidence limiting government power to voluntary expatriation was questionable, to say the least.[14] Harlan highlighted a more functional, less formalistic defense of citizenship: “Once obtained, citizenship is of course protected from arbitrary withdrawal by the constraints placed around Congress’ powers by the Constitution….” This model seems to dovetail with Peter Schuck’s proposal in this debate.[15] It has the powerful virtue of situating denationalisation within the rubric of well-accepted protections of the rule of law.  

Finally, one should also note something obvious but worth highlighting: Hannah Arendt’s position was not that citizenship should be the “right to have rights.” Rather, as she expressly put it: “The Rights of Man, supposedly inalienable, proved to be unenforceable…whenever people appeared who were no longer citizens of any sovereign state.”[16] (Arendt 1966: 293) Her concerns were practical: Such people lacked any real protection. When she explored the subject substantively her argument was much more nuanced: “…recent attempts to frame a new bill of human rights, which seem to have demonstrated that no one seems able to define with any assurance what these general human rights, as distinguished from the rights of citizen, really are.” (Ibid.)[17] But Arendt published The Origins of Totalitarianism in 1951. It hardly needs to be said that—despite its evident challenges and deficiencies--the corpus of human rights protections is today more specific, more robust, and more widely enforced than was the case during the times she considered.  

Arendt also poignantly described the “calamity of the rightless” as “that they no longer belong to any community whatsoever.” The main reason this was a calamity was that “no law exists for them.” (Ibid: 295) The best way to avoid such calamities is not only to strengthen citizenship protections. That may well have the perverse consequences of, on the one hand, rendering citizenship ever harder to achieve, and on the other, relegating noncitizens to an increasingly rightless realm. We must do the harder, more basic work of defining and instantiating meaningful human rights protections for all people, regardless of status, or location. Focusing too specifically on the problem of deprivation of citizenship must not blind us “to the numerous small and not so small evils with which the road to hell is paved.”[18]

[1] Though I agree with Kay Hailbronner that legitimacy is an elusive concept in need of further definition. I believe that one can do this relatively easily in this context.
[3] See e.g., Daniel Kanstroom, Daniel. 2007. Deportation Nation: Outsiders in American History. Cambridge: Harvard University Press; Kanstroom, Daniel. 2012. Aftermath: Deportation Law and New American Diaspora. New York: Oxford University Press.
[4] I suppose that the opposite might also be true in certain circumstances. Rights gains won by citizens could form models that protect long term residents, albeit in depreciated form. But this pathway works best if citizenship is viewed on a continuum.
[5] The Kentucky Resolution, Documents of American History 181(Henry Steele Commager ed., 6th ed. 1958).
[6] See Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (concluding: “We have assumed … that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. … But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”) See also, Johan Steyn, Guantanamo Bay: A Legal Black Hole, 1 International and Comparative Law Quarterly 53 (2004).
[7] By which I mean conformity to the best understanding of the “rule of law” in all its aspects, including procedural and substantive protections of basic rights.
[8] Perez v. Brownell, 356 U.S. 44 (1958).
[9] The 1940 law at issue had been passed largely in response (ironically for our purposes) to voting by American citizens in a 1935 plebiscite relating to Hitler’s annexation of the Saar region. As one member of congress put it. The legislation “would “relieve this country of the responsibility of those who reside in foreign lands and only claim citizenship when it serves their purposes.” Id. at 55 (in opinion of Justice Frankfurter).
[10] (joined by Justices Douglas and Black)
[11] Puzzling because the latter practice (denaturalisation) was well accepted in a wide variety of situations, such as where naturalisation had been illegally procured. The term, "lawfully,” thus meant that one could not be denaturalised absent a finding that the naturalisation (viewed retrospectively, had been in some way unlawful).
[12] Cf. Trop v. Dulles, 356 U.S. 86 (1958)(in which Justice Warren, writing for a plurality, found denationalisation of a military deserter to be invalid for similar reasons, and also invalid as cruel and unusual punishment, because it resulted in “the total destruction of an individual’s status in organized society.”)
[13] See e.g., Aforyim v. Rusk, 387 U.S. 253 (1967)(“First we reject the idea…that…Congress has any general power, express or implied, to take away an American citizen’s citizenship without his assent.”); Vance v. Terrazas, 444 U.S. 252 (1980)(“[T]rier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.” Proof may be by a “preponderance of the evidence” standard.) See also, Pub.L.99-653 (1986) (adopting this approach).
[14] Senator Howard, who had sponsored the Citizenship Clause of the Fourteenth Amendment, had conceded that citizenship could be “forfeited” due to “the commission of some crime.”
[15] It should also be noted that US law has long provide for such denationalisation for a wide variety of actions, including:  “committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, United States Code, or willfully performing any act in violation of section 2385 of title 18, United States Code, or violating section 2384 of said title by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.” Immigration and Nationality Act Sec. 349. [8 U.S.C. 1481].   The operative standard, as noted, is the following: “A person who is a national of the United States whether by birth or naturalisation, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality- …”  Kay Hailbronner correctly highlights the prevalence of such standards elsewhere though I am less optimistic than he about the ability of states to define terrorism with sufficient precision to justify denationalisation.
[16] Arendt, Hannah. 1966. The Origins of Totalitarianism. New York: Harcourt, Brace & World, Inc.
[17] Indeed, Arendt herself defined the “right to have rights” not as formal citizenship status as such, but as the right “to live in a framework where one is judged by one’s actions and opinions…” She distinguished this from the related “right to belong to some kind of organized community.” (Ibid: 296-7)
[18] Arendt, Hannah. 1994:271 Essays in Understanding 1930-1954, Formation, Exile, and Totalitarianism. (New York: Schocken Books).

Beware states piercing holes into citizenship
By Matthew J. Gibney, University of Oxford
I find a great deal to agree with in Audrey Macklin’s trenchant and wide-ranging argument against denationalisation power’s recent revival in Western countries. Yet I also understand where her critics are, somewhat abrasively, coming from. It is of course possible to imagine carefully fashioned cases where denationalisation seems a morally appropriate response as long as a range of guarantees are met (for example, when an individual represents a clear threat to the state, where there are no doubts about his guilt or intentions, and where he could be stripped of citizenship without being made stateless.) However, while this realisation might help us identify the terms on which the denationalisation of a particular individual is permissible, it tells us little about the broader consequences of piercing the norm of unconditional citizenship for punitive reasons.(1) I think that once we are realistic about the political dangers of conceding to the state powers to withdraw citizenship, we’re brought back to a position compatible with Audrey Macklin’s ban on denationalisation.
Before explaining why I think an absolute bar might be justified let make a couple of comments on the previous discussion. The first of these is on what one might call the statelessness constraint. All of the critics of Audrey Macklin’s position start (with the possible exception of Christian Joppke) by accepting that individuals, even those who commit terrorist acts, should not be made stateless. This constraint against statelessness is not simply a matter of international or domestic law; it is also a normative constraint that stems from basic liberal commitments. The problem with statelessness is that it leaves individuals subject to state power without citizenship’s basic protections against that power, including security of residence, political rights, and potentially a host of other entitlements. If we accept this normative rationale for guarding against statelessness, as I think we should, we will also want to ensure that those denationalised are not made de facto stateless, that is, forced to rely on a state that is unable and unwilling to protect them or otherwise to deliver the fundamental rights citizenship (or nationality) is supposed to guarantee.(2)
Yet taking this additional constraint seriously is going to be very consequential. The secondary citizenships of the individuals Western states most want to strip of citizenship tend to be those of countries with dubious human rights records and histories of civil war and conflict (Somalia, Iraq, Eritrea, Sudan, to name a few).(3) If de facto statelessness is a bar, most of the prime targets are going to be out of denationalisation’s reach. Of course, de facto statelessness does not establish a case for an absolute rejection of the state’s power to denationalise. But it does show why the power’s scope may be very narrow indeed, at least for liberals.
Second, I find myself attracted to the position of Rainer Bauböck that one reason denationalisation is unacceptable is because it involves states “passing the buck” of their own responsibilities on to other states, a point that adds a different dimension to Audrey Macklin’s claim that citizenship is, in important respects, not fungible. This view that banishment is unfair to other states is a very old one. None other than Voltaire argued against the practice of banishment on the grounds that it involves throwing into our neighbour’s field the stones that incommode us in our own. 
Powerful as it is, however, the consideration that there’s something wrong with denationalising “home grown” terrorists, wouldn’t mean that denationalisation was always inappropriate. States might still claim the moral right to denationalise individuals who had held citizenship only for a short period of time or had spent most of their lives living in the other country in which they held citizenship. Germany certainly should not have posthumously denationalised Hitler. But Hitler was the leader of the German state and celebrated in this role by a significant proportion of the German people during the 1930s and 1940s. Putting aside the question of what should be done posthumously, some citizens have a much more tenuous, even a merely nominal, relationship to the state. Not all are even grown at home.
These considerations help to clarify some of the constraints necessary for a liberal denationalisation power. Even from the short discussion here, we can identify plenty of others. Peter Schuck suggests that an individual’s threat to the state needs to be “rigorously proven” and Kay Hailbronner argues that citizenship deprivation must be “subject to proportionality”. It’s clear that satisfying all of these different requirements will make the construction of denationalisation law consistent with liberal principles a Herculean task. However, where I part company with the denationalisers is not so much over whether it’s possible to identify a liberal starting point for the practice.(4) Rather, my concern is over the illiberal direction denationalisation seems likely to take once it returns to the political repertoire. Here my position has been greatly influenced by the recent experience of the UK.(5) 
When denationalisation was first revived after over thirty years of desuetude by the Blair government in 2002, the power was tightly constrained: the definition incorporated was taken from the European Convention on Nationality, only dual nationals were targeted, and an automatic judicial appeal was to follow any decision by the Home Secretary. The government promised to use the power rarely. This modest beginning for denationalisation did not last. After the London bombings in July 2005, a new act passed by the Blair government in 2006 lowered the standard required for denationalisation. While previously the Home Secretary had to be satisfied that an individual had engaged in actions that threatened the "vital interests of the UK" state, now he or she had only to be satisfied that taking away someone’s citizenship was “conducive to the public good”. The standard for continuing to hold British citizenship had now become the same as the one used to judge whether a non-citizen should be deported. Even after this radical change, it was possible to convince oneself that the government would use the power sparingly. Only a handful of people lost their citizenship under the Labour government’s watch.
But with the coming of the Conservative/Liberal Democrat coalition government things have gone seriously awry. In the Cameron government’s first year of office in 2010–11, no fewer than six people were stripped of their citizenship. This was more people than the Blair and Brown governments had denaturalised in the previous nine years (in the immediate aftermath of the terrorist events of September 11, 2001 and July 7, 2005). The enthusiastic use of deprivation power has continued apace in the years since, though almost always in secret. By May 2014, it was evident that Cameron’s government had some 23 people stripped of citizenship on ‘not conducive’ grounds in the last three years. Almost all of these individuals were stripped of citizenship while outside the UK, undermining real access to appeal procedures. In January this year the government presented a bill to parliament requesting the power to strip citizenship from naturalised citizens even if they would be made stateless. The amendment passed, albeit, in a modified form. Under current law in the UK a naturalised citizen can be made stateless if the Home Secretary deems there are reasonable grounds for believing they have access to another citizenship. 
Now it might be said – and Christian Joppke would probably be the one to say it – that the UK is an outlier. The unravelling of constraints on denationalisation evident in Britain is unlikely to be repeated elsewhere because other Western countries are less insouciant about protecting rights. But note that the circumstances that have geed along transformation in UK law are generally applicable: terrorist events (the 2005 Tube bombing) and a change of government (the coming of the Conservatives to power). Moreover, I’m not confident that other countries are as legally protected against creep of denationalisation power as they might seem. Australia has fewer rights based protections even than the UK; Canada has some alarming inclusions in its recent denationalisation legislation, including the state’s ability to rely on a conviction for terrorist offences in another country; and, as I write, a large number of prominent US politicians (buoyed by public opinion polls) have effectively endorsed torture as a practice for dealing with terrorists past and future. 
I thus find myself agreeing with Audrey Macklin’s embrace of unconditional citizenship, albeit because I fear where we will end up if we try to pierce even a small – liberal size – hole into citizenship to punish terrorists. Liberalism is not simply a set of principles, it’s also a political stance – one that encourages a healthy scepticism of state attempts to encroach upon established rights and protections. In these fraught times, it is wise to adopt the stance as well as to protect the principles.
(1) My focus in this short piece is exclusively on the punitive withdrawal of citizenship. There are, of course, other reasons why states have sought to “pierce” citizenship, for example, to address fraudulent acquisition of citizenship or to prevent dual nationality.
(2) Cf. C. Barry and L. Ferracioli, “Withdrawing Citizenship”, paper delivered at Australian National University, Canberra, 16 July 2013. I accept that specifying exactly what is included in the concept of “de facto statelessness” is not necessarily clear, as is the relationship between de facto statelessness and simple human rights abuses. A good starting point for further consideration of this issue is C. Sawyer and B. K. Blitz, eds. Statelessness in the European Union: displaced, undocumented, unwanted. Cambridge University Press, 2011.
(3) Note, for example, the second nationalities of the denationalised individuals that the Bureau of Investigation Journalism has been able to track.
(4) I discuss the normative complexities of denationalisation in M. J. Gibney (2013), “Should citizenship be conditional? The ethics of denationalization”. The Journal of Politics, 75(03), 646-658.
(5) I give a fuller account of the history of UK denaturalisation power in M. J. Gibney (2013) “‘A Very Transcendental Power’: Denaturalisation and the Liberalisation of Citizenship in the United Kingdom”. Political Studies, 61(3), 637-655.




Disowning citizens

By Reuven (Ruvi) Ziegler, University of Reading


Macklin’s kick-off focused ‘exclusively on denationalisation for allegedly disloyal conduct by a citizen, while a citizen’. Most contributions to this debate weighed the predicament of the former citizen against state interests. In my contribution, I offer a typology of cases in which revocation could be sought according to some of the contributors. I contend that disowning of citizens by their states is incoherent, tenuous, or disingenuous.  

The first type of case involves acts which, according to Hailbronner, undermine the constitutional order by seriously threatening public safety and state security. Hailbronner contends that individuals performing such acts ‘have given up their attachment to a community by attacking the very fundament of that community, not by merely violating its internal rules of public order’. However, this line-drawing exercise seems to be quite difficult: every crime may cause insecurity, threaten public order, and prevent democratic societies from functioning properly; citizens (and decision-makers, including those entrusted with citizenship revocation) will diverge, based on their ideological biases, as to whether particular crimes cross Hailbronner’s threshold. For instance, did the perpetrators of the Brighton hotel bombing cross the threshold in light of the potential ramifications of Thatcher’s assassination for the stability of the United Kingdom? If so, would a person financing such an attack qualify, too? 

Nevertheless, perhaps a ‘core’ case can be identified, such as a criminal conviction for treason. One of the constituent elements of such acts is often that they are committed by citizens qua citizens. For instance, Lord Haw Haw (William Joyce) could be convicted of espionage for Germany in the Second World War because he possessed British nationality; he unsuccessfully argued that he did not owe loyalty to the Crown. If the basis for Joyce’s conviction was that his crimes against the state were committed as a British national, then disowning Joyce ex post facto seems incoherent: the state must reject the claim that treasonous acts amount to renunciation of citizenship, because that would disable the state from prosecuting the perpetrator for treason. (for an analogous argument concerning the legitimacy of disenfranchisement of convicted adult citizens, see my article).  

The second type of case involves crimes (including crimes defined as ‘terrorism’ under international treaties or domestic law) committed by a citizen of state A against individuals or institutions in state B. The fact that the person who has committed such crimes holds the citizenship of state A seems incidental. Consider the attack on the Jewish museum of Belgium in Brussels on 24 May 2014, which is likely to have been carried out by a French national affiliated with ISIL. ISIL has been designated as a terrorist organisation by the EU, of which France is a member, as well as by the UN. Were France to revoke the citizenship of this member of an internationally designated terrorist organisation, it would be severing legal relations with a citizen even though the citizen’s actions were not directed specifically towards the French state, its institutions, or its population. This seems rather tenuous.  

Joppke argued that ‘international terrorists are not criminals but warriors’. But the state exercises its sovereign powers vis-à-vis ‘international terrorists’ qua citizens. The fact that such persons commit acts that are of an international character does not make it more plausible for their state of nationality to legally disown them as a result. Hailbronner argues that ‘[w]hat makes international terrorism so distinctive is … also its relevance for discontinuance of that special relationship established by citizenship.’ I am not quite sure why engagement in international terrorism (such as the ISIL-sponsored attack on the Jewish museum) necessarily or even plausibly indicate that a citizenship bond has been severed by the terrorist. This seems to conflate the fact that their state of nationality perceives (and rightly so) the terrorist’s act as heinous with a direct effect on that state.

The third type of case concerns acts which are committed by a citizen in the name of the Ancien Régime. Following political transformation, the state wishes to disassociate itself from such past acts by dissociating itself from the perpetrators. As Bauböck rightly notes, Hitler’s posthumous denationalisation by either Germany or Austria would have been considered ‘a denial of responsibility for his crimes and their consequences’. In addition to the revocation’s outward-looking dimension (towards the international community), it has an inward-looking dimension too. When Augusto Pinochet stood trial in in 2004, he was charged with crimes committed by him as head of the military junta which ruled Chile after the 1973 coup. He died in 2006 before the conclusion of his trial. Let’s imagine that Pinochet had another (nominal) citizenship, and that his conviction would have resulted in his denationalisation. This would have seemed, rightly, as an attempt to undermine the fact that these acts were committed in the name of the Chilean state.

Paskalev asserted that, ironically, the ‘softness of citizenship revocation makes it appear quite inappropriate for the case of terrorists’. However, even if (some) terrorists may be blasé about losing their citizenship, we ought to be concerned about states’ eagerness to wash their hands of them.



Our epoch's little banishments

By Saskia Sassen, Columbia University


I arrive late to this discussion, to these excellent pieces that cover much ground... not much left to cover. For the sake of debate and commentary, rather than scholarly analysis, let me throw into the discussion what is no more than a little wrench. 

Denationalisation is an ambiguous concept. This discussion has given it one sharp meaning: being stripped of one's nationality and thrown out of one's country. In my own work I have used it to capture more ambiguous meanings, thereby giving it the status of a variable that can be applied to a range of domains, not only citizenship.(1)

Thus, I see denationalisation at work when, beginning in the 1980s, global firms pushed for and got most national governments to institute deregulations and privatisations so as to maximise their access into any national economy. It meant that states had to denationalise key elements of the legal framing (i.e. protections) they had long offered their own firms, markets, investors. One might say that in doing so, these states instituted a partial 'banishment' of their own national firms from a legal framing that granted these national firms exclusive privileges/rights. This is a form of banishment that does not entail a physical departure from a country's territory. It only entails a loss of particular exclusive rights and protections. We can conceive of it as a kind of micro-banishment.

Similarly, I would argue that such internal micro-banishments are also present in the decisions of many national states, beginning in the 1980s and onwards, to eliminate a few rights here and there that their citizens may long have had. Examples for the U.S. are, among several others, Clinton's 1996 Illegal Immigration Reform and Immigrant Responsibility Act which took away the rights of citizens to bring legal action against the INS in lower courts; or when credit card companies obtained the right to pursue payment even if a household had declared bankruptcy – a right so abusive it eventually got cancelled. We might argue that in these cases, citizens experienced a partial banishment from specific rights (even as some new rights were also attained, notably gay marriage). The better language to describe these losses may be what Audrey Macklin refers to elsewhere as civil death.(2)

Current examples for the gains of rights for global firms and the loss of protections for national firms and workers can be found in some of the clauses of both the Transpacific and the Transatlantic Trade Partnerships.

Long before we get to the dramatic figure of the terrorist, where the debate about banishment turns clearly pro or contra, I see a range of micro-banishments that take place deep inside national territory. If I wanted to give this image an extreme character, I would say that in today's interaction prone world (see, for instance, the earlier behind closed-doors negotiations between Iran and the U.S., or, for a period, between the U.S. and the Taliban) there is no more terra nullius for banishment.

If I were to use the term "banishment," I would want to use its conceptual power to get at the multiple little banishments that happen inside our countries and that often entail a move into systemic invisibility – the loss of rights as an event that produces its own partial, or specialised, erasure. I refer to these micro-banishments as expulsions, a term I intend as radically different from the more common term "exclusion," which refers to a condition internal to a system, such as discrimination.(3) I conceive of such expulsions as a systemic capability, clearly a use of the term capability that diverges from the common use which marks it as a positive. Thus micro-banishments can be seen as a profoundly negative systemic capability that is far more widespread than our current categories of analysis allow us to see.(4) 

To conclude I would like to return to Audrey Macklin's argument. 

I agree with Audrey Macklin's proposition that citizens should not be banished even when they engage in terrorist attacks on their own country. I share her concern with the importance of protecting a robust form of  citizenship. But I do so partly also from a transversal and dystopian perspective that may have little to do with the rationale put forth by Macklin. Let me clarify. It is not only terrorists that are destructive and attack the innocent; it is also predatory actors of all sorts –corporate firms that exploit workers worldwide, financial speculators, abusive prison systems. Further I agree with Macklin that a country should develop the needed internal instruments to deal with terrorists rather than banish them. But again, I would take this beyond terrorists who are citizens, and include the types of predatory actors I refer to above.

Beyond all of this, I am above all concerned with the larger history in the making that I refer to earlier in this short text. This larger history is shaping an epochal condition that takes me away from prioritising banishment as loss of citizenship and of the right to live in one's country as discussed in this forum. 

Briefly put, I would argue that the conceptual locus of the category banishment in today's world is not banishment in the historical sense of the term, but a new kind of banishment. It is one predicated on the formation of geographies of privilege and disadvantage that cut across the divides of our modernity – East-West, North-South. The formation of such geographies includes a partial disassembling of the modern national territorial project, one aspiring (and dependent on) national unity, whether actual or idealised. This then also means that there is a weakening of the explanatory power of the nation-based encasements of membership (for citizens, for firms, for political systems) that have marked our modernity. The micro-banishments I refer to are part of emergent (and proliferating!) geographies of disadvantage (for citizens, firms, districts) internal to a country.  



(1) See chs 4,5, and 6 in Saskia Sassen. Territory, Authority, Rights: From Medieval to Global Assemblages, Princeton University Press 2006; 2nd ed. 2008.

(2) Audrey Macklin, Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien, (2014) 40 Queen’s LJ 1-54 at 8.

(3) Saskia Sassen. Expulsions. Brutality and Complexity in the Global Economy, Harvard University Press, Cambridge, Mass. 2014.


(4) This also raises the possibility of an obverse condition: that the tissue constructed via the recurrence of micro-banishments inside a nation-state could, with time, become the tissue for a claim to transnational citizenship. Could it be that as citizens experience the limits of national citizenship, transversal notions of membership become more plausible? I am thinking here of substantive conditions for transnational citizenship, not just ideational one.  


Deprivation of citizenship: is there an issue of EU law?, by Jo Shaw

By Jo Shaw (University of Edinburgh and EUDO-CITIZENSHIP co-director)


The purpose of this short intervention in the debate on The Return of Banishment initiated by Audrey Macklin, where the pros and cons of various forms of deprivation policies pursued by, or sought by, liberal states have been fully debated, is to add an element of EU law. Specifically, in the light of the judgments of the European Court of Justice in Rottmann and Ruiz Zambrano, how – if at all – are Member States’ law and procedures on involuntary loss of citizenship affected by EU law, given that the primary competence to determine the rules on the acquisition and loss of citizenship remains with Member States? We have yet to hear conclusively, but well informedobservers who followed the UK Supreme Court hearing in the case of B2 (Pham) v SSHD concerned with the UK’s rather extensive deprivation powers and the issue of statelessness have indicated that they think it likely that the Supreme Court will now make a reference to the Court of Justice. It seems that the judges will ask the CJEU if it really meant what it said when it decided the case of Rottmann. B2 (Pham), like the earlier cases of G1 (discussed below) and as well as the case of Al Jedda, a former Iraqi citizen who has twice been stripped of his UK citizenship as well as spending time in military detention in Iraq, all concern naturalised citizens who are suspected of some form of terrorist involvement, but against none of whom criminal proceedings have been brought in the UK.

We are likely, therefore, to be in a phase of further legal development – initially in iteration between the UK courts and the Court of Justice, but with implications for all of the Member States as quite a number of states have started to look closely at using expatriation measures in order to combat radicalisation and terrorist threats, even if many judge this approach to be ill-advised and inappropriate.

I will explain briefly what the issues are. The Rottmann case was the subject of an earlier forum debate on the EUDO Citizenship website. Rottmann was a case of loss of citizenship conferred by naturalisation, after it came to light that the naturalisation had been obtained by fraud. In this case, Rottmann, an Austrian citizen, had failed to reveal that he had been the subject of unconcluded criminal proceedings in Austria when seeking naturalisation in Germany. Rottmann raised issues of EU law in his appeal against the deprivation decision before the German administrative courts, which led to a reference to the Court of Justice. He pointed out that having obtained German citizenship he lost Austrian citizenship, by operation of law. Thus, if he were deprived of German citizenship he would be stateless, and – furthermore – he would have lost his EU citizenship. One issue that had been raised – and which caught the attention of Advocate General Maduro in his Opinion – was whether this was a ‘wholly internal situation’ – i.e. a German court reviewing a decision of a German public authority regarding a German citizen. In that sense, it could be said, EU citizenship was not engaged at all. In response, the Court repeated its standard formulation when dealing with matters which fall outside the competence of the EU and its legislature. It reminded us that EU cannot adopt measures with regard to national citizenship, but none the less while national competence remains intact, it must be exercised ‘with due regard’ to the requirements of EU law in situations covered by EU law. Specifically, in this case, said the Court:

‘It is clear that the situation of a citizen of the Union who, like the applicant in the main proceedings, is faced with a decision withdrawing his naturalisation, adopted by the authorities of one Member State, and placing him, after he has lost the nationality of another Member State that he originally possessed, in a position capable of causing him to lose the status conferred by Article 17 EC [i.e. Union citizenship] and the rights attaching thereto falls, by reason of its nature and its consequences, within the ambit of European Union law’ (para. 42 of the judgment).

The Court went on to recognise that states may have legitimate reasons to withdraw citizenship, but it is worth noting that the Court of Justice does not, in this paragraph, focus on statelessness, but rather on the loss of the rights specific to EU law. In other words, this can be seen as an EU-specific reason for requiring the testing of any decision to withdraw citizenship against – as the Court went on to hold – a standard of proportionality. Factors to be borne in mind in assessing the proportionality of the withdrawal decision included the gravity of the original offence or deception, lapse of time, the impact on the subject of the decision and their family, the possibility of recovering the original citizenship lost at the time of naturalisation, and the availability of other less severe measures than withdrawal.

While some have suggested that the essence of Rottmann lay in the way that the claimant is strung across between the national citizenship laws of two EU Member States, one at least of which claims exclusivity and thus operates an automatic rule of withdrawal in the event that a citizen acquires the citizenship of another state, the point about loss of the benefits of EU citizenship as a freestanding principle of EU law without regard to prior movement from one Member State to another was given a further boost in the case of Ruiz Zambrano. In that case, the EU citizens threatened with losing their rights of citizenship were the children of the claimant, who were born in Belgium and who had acquired Belgian, and thus EU, citizenship at birth. Meanwhile, through a combination of circumstances their Colombian citizen father had not regularised his situation in Belgium (or had perhaps been prevented from doing so by a series of delays perpetrated by the Belgian authorities in relation to his case). Because the refusal of a residence permit for Ruiz Zambrano and his wife would, in effect, have meant that the EU citizen children would have been obliged to leave, with their parents, the territory of the EU and thus would not have been able to avail themselves of their rights as EU citizens (notably the right of free movement which they had not yet exercised, but which they might exercise in the future), the Court concluded that a Member State could not refuse to grant either a residence permit or indeed a work permit. The test that the Court articulated was whether the measure taken in relation to a third country national upon whom the EU citizen children were dependent was whether it would make them unable to exercise ‘the substance of their rights’ as citizens of the EU.

Neither Rottmann nor – in particular – Ruiz Zambrano have been met with unalloyed enthusiasm at the national level. It goes beyond the scope of this short comment to discuss how and why Member States and indeed their courts might react to challenging judgments of the Court of Justice that appear to extend the scope of EU law and, in particular, the scope of EU citizenship.(1) That said, there is no evidence to suggest that, thus far, Rottmann has had a significant or disruptive effect on national citizenship laws.(2)

The UK is one of the few states where Rottmann has thus far been discussed in national cases, but – until the case of B2 (Pham) which is before the Supreme Court – the limit of consideration had been a rather dismissive swipe at the Court of Justice taken by Lord Justice Laws in the Court of Appeal in the case of G1 v SSHD.(3)  Laws LJ sceptically asked ‘[u]pon what principled basis, therefore, should the grant or withdrawal of State citizenship be qualified by an obligation to "have due regard" to the law of the European Union?’ (para. 38), given that the grant and withdrawal of citizenship remains a matter of Member State competence.

The Supreme Court refused to give leave to appeal to the applicant in G1, but perhaps it was only a matter of time, given the salience of deprivation of citizenship in the UK at the present time, before it had to grasp the nettle of considering not only the meaning of statelessness in the context of the then applicable UK law (this having moved on somewhat since that time, as Gibney’s contribution to the forum highlights) but also the possible applicability of EU law as a restraint upon executive freedom, and as a standard which UK courts, in exercising their review function, would need to uphold. Hence the appellant in B2 has been given leave to appeal, with perhaps a reference to the Court of Justice still to come. 

As the discussion by Simon Cox, a lawyer working with the Open Society Institute which intervened in this case, has made clear, it seems quite likely that if the applicability of EU law as a frame of reference against which UK deprivation legislation needs to be judged is duly established by the Court of Justice and accepted by the Supreme Court, then the proportionality standards which need to be applied by UK courts exercising their review function may differ from those otherwise applicable within UK public law. The key issue seems likely to surround the putative autonomy of EU citizenship: is there a freestanding EU law related concern with citizenship stripping, namely the loss of EU citizenship rights, which goes beyond the issue of statelessness? Rottmann seemed to suggest there was, but this is the issue on which the Supreme Court may probe the CJEU further. It should be noted that there may also be higher standards of disclosure of otherwise secret evidence, following the judgment of the Court of Justice in the ZZ case, if the applicability of EU law is accepted. 

Finally, it should be pointed out that the OSI interest in the case is not directly with the Rottmann point, but concerns the definition of statelessness, which, they argue also has an EU element and should have a common EU level definition to which Member States are obliged to adhere. This call stems from the fear that in its earlier judgment in B2 (Pham) the Court of Appeal created significant difficulties when it resolved that B2 was not to be judged as de iure stateless, once deprived of UK citizenship, because although the Vietnamese government indicated they did not recognise him as a citizen, it was clear that this was unlawful under Vietnamese law. The UK courts, said the Court of Appeal, were bound by the rule of law. Therefore, they could not recognise an unlawful act of the Vietnamese government. This seems to be peculiarly Kafka-esque reasoning and the OSI, given its investment in the campaign against statelessness ongoing under the leadership of the UNHCR, would be concerned if this reasoning were to take hold in the UK, which is bound to have further cases coming before the courts, given the remarkable rate at which the state is now expatriating its citizens on grounds that this is conducive to the public good.



(1) M. Blauberger, ‘With Luxembourg in mind ... the remaking of national policies in the face of ECJ jurisprudence’, (2012) 19 Journal of European Public Policy 109-126, M. Blauberger, ‘National Responses to European Court Jurisprudence’, (2014) 37 West European Politics 457-474, S. Schmidt, ‘Judicial Europeanisation: The Case of Zambrano in Ireland’, (2014) 37 West European Politics 769-785.

(2) See N. Nic Shuibhne and J. Shaw, ‘General Report’, in U. Neergaard, C. Jacqueson and N. Holst-Christensen (eds.), Union Citizenship: Development, Impact and Challenges, The XXVI FIDE Congress in Copenhagen, 2014, Congress Publications Vol. 2, DJØF Publishing, Copenhagen) at p154-155.

 (3) G1 v Secretary of State [2012] EWCA Civ 867.



On producing the alien within: A reply

by Audrey Macklin  

Shortly after the last contributor posted a comment on this forum, reports of the Charlie Hebdo attacks erupted in the media. The assailants were two French brothers (Cherif and Siad Kouachi) who claimed affiliation to Al Qaeda in Yemen.  Hours later, an associate (Amiday Coulibaly) killed a police officer, then rampaged through a kosher Hyper Cacher supermarket and murdered four hostages. All three men were slain two days later in confrontations with French police and security. That same day, the notorious ‘Finsbury Mosque cleric’, British national Abu Hamza, was sentenced to life in prison by a US court for terrorism related crimes. Most recently, the French Conseil Constitutionnel upheld a law permitting denaturalisation of dual-national French citizens convicted of terrorist offences.[1] One cannot but wonder whether the Charlie Hebdo and Hyper Cacher attacks cast a long shadow over the Conseil Constitutionnel’s deliberations, even though all three men were French by birth and therefore outside the purview of the denaturalisation law.  

The horrific deeds of the French perpetrators struck at the heart of liberal democratic values: freedom of expression and religious tolerance. States understandably seek new and better tools to prevent future atrocities; the impulse toward retribution at such moments seems hard to resist. Do these attacks make the case for citizenship revocation? I remain skeptical that citizenship revocation advances the objective of protecting liberal democracies, or that pursuit of unalloyed retribution is an objective worthy of liberal democracies.  

Defenders of citizenship stripping offer a mix of instrumental and non-instrumental justifications, but Kay Hailbronner, Christian Joppke and Peter Schuck lean toward the latter more than the former. Despite its rejection by the US Supreme Court over fifty years ago, both Hailbronner and Joppke revert to the legal fiction of constructive renunciation and insist that certain conduct communicates an irrefutable intention of terrorists to renounce their own citizenship. Schuck revises the fiction by acknowledging that perpetrators may not actually wish to renounce citizenship, but then discounts an intention to maintain citizenship for ‘tactical and cynical’ purposes. But however attractive the fiction of constructive renunciation, it does not become truer with repetition, or with the passage of time, or by writing new characters into the narrative. Citizenship revocation for misconduct while a citizen is not chosen by the citizen; it is inflicted by the state.  

Joppke explains that Germany would have been wrong to regard members of the RAF as menacing enough to warrant denationalisation, and I suspect he would also condemn the United States denaturalisation of Communist citizens in the twentieth century as hysterical overreaction. But he remains confident that one can transcend historic patterns of panic-induced political myopia and he arrives at the conclusion that Islamic terrorists are uniquely suitable for citizenship revocation. Peter Schuck contends that citizenship revocation, when employed judiciously against terrorists, strengthens the value of citizenship itself. Kay Hailbronner adds that my arguments do not address the illegality of citizenship revocation under international or constitutional law, but rather proceed from unarticulated notions of legitimacy and morality. Space does not permit a proper reply to the last criticism. Readers are invited to read my published article on citizenship revocation in the Queen’s Law Journal,[2] which addresses citizenship revocation for misconduct under international and constitutional law.  

Consider citizenship revocation in relation to the goal of bringing perpetrators to justice. As I mentioned in my kickoff text, fear of citizenship revocation is unlikely to deter those bent on martyrdom, and the deaths of the Kaouchi brothers and Coulibaly seem to demonstrate that. As for Abu Hamza, it is worth noting that the UK did attempt to strip him of citizenship. It was thwarted because deprivation would have rendered the Egyptian-born cleric stateless. But the fact that Abu Hamza remained in the UK as a UK citizen made him available for extradition to face charges in the United States, where he was tried, convicted and sentenced to life imprisonment for terrorism offences after an open and fair trial. Had he been stripped of UK citizenship and expelled to Egypt, he would never have faced justice in a US court, or anywhere for that matter.[3]  I take the view that prosecution, trial and conviction are a better outcome than the alternatives. Various states have begun revoking passports of citizens allegedly bound for IS camps in Syria and Iraq. Restricting exit in this manner is only available in relation to citizens. Stripping citizenship permits states to shed their duty and responsibility toward nationals; it also deprives them of the authority to subject them to criminal prosecution and thereby make a tangible contribution to bringing terrorists to justice under the rule of law.  

Schuck, along with Hailbronner and Joppke, concede that existing practices of citizenship revocation breach basic norms of fairness. They regard these flaws as contingent defects that are severable from the abstract question of whether citizenship revocation for misconduct can be justified. I find the attempt to segregate theory from practice unconvincing in this context, and Matthew Gibney’s intervention highlights the way in which attempts by the judiciary to hold the state to requirements of legality simply breed more tactics of evasion. A chronic failure of a state practice to comply with fundamental norms of legality across time and space invites the inference that there is something about what the state is endeavouring to do that ineluctably and incorrigibly perverts the process of how it does it.[4] A fair process leading to banishment, like a fair process culminating in the death penalty, can only ever operate as a mirage that legitimates ongoing practices that will – inevitably and necessarily – fail to meet basic norms associated with the rule of law.  

This leaves a defence of citizenship revocation that does not depend on practicality or utility, but instead rests on the insistence that revocation is just and fitting punishment of those who abuse the privilege of citizenship. I argue that when citizenship becomes revocable for misconduct, citizenship as legal status is demoted from right to privilege. This is a specifically legal argument about the juridical fragility of a privilege compared to a right. Joppke’s comment that citizenship in western states is a privilege because citizenship delivers so little to citizens of most states is a non-sequitur. I may feel privileged to be a Canadian citizen and to benefit from the rights, entitlements and security of Canadian citizenship, but that does not make citizenship as such a privilege. And it would be peculiar indeed if only liberal democratic states that guarantee robust citizenship were entitled to revoke citizenship qua privilege, while poor and dysfunctional states that deliver only a feeble and impotent citizenship, were not. Schuck maintains that citizenship revocation, properly wielded, does not weaken citizenship, but can actually ”strengthen citizenship by reaffirming the conditions on which it is based.” I am not sure exactly what this means but his subsequent invocation of capital punishment does alert one to the way in which the rhetorical form of his claim echoes similar assertions by death-penalty advocates. Indeed, if one is convinced that the value of life is strengthened when the state executes a murderer, perhaps one will also be persuaded that citizenship is strengthened when the state denationalises a terrorist. The corollary also applies: If one is not attracted by the first proposition, perhaps one should resist being seduced by the second.  

Jo Shaw’s insightful intervention about the implications of denationalisation for EU citizenship brings to the discussion the important issue of proportionality, a matter Hailbronner also addresses briefly. Stepping back from the specificities of EU citizenship, a proportionality inquiry into citizenship deprivation directs us to the question of whether the state can achieve its objectives through less rights-infringing means than the impugned law. If one takes seriously the injunction against statelessness, the answer must surely be yes. However one frames the goals and purposes of citizenship deprivation, it remains true that states can and do deploy other means to address, contain and denounce threats to national security from mono-nationals.[5] They must do so because denationalisation is not a legal option, yet no state will be heard to say that it is disabled from protecting the nation adequately because it cannot denationalise mono-citizens.  

Schuck proclaims that a state is “powerless to protect itself and its people from imminent, existential threats”, if denied access to denationalisation as a weapon. Not only does this ignore the resources currently available to states, it dramatically overestimates what citizenship revocation would add to the arsenal. Unless a state could mount evidence showing that dual citizens pose a qualitatively different and graver threat to national security than mono-nationals, I doubt that citizenship revocation for some citizens (but not others) could survive a rigorous proportionality analysis.  

Rainer Bauböck correctly and helpfully reminds us that what is at issue is citizenship as legal status. Citizenship signifies membership, but beyond that general descriptor, citizenship inhabits multiple registers across many disciplines. Among liberal states, equality of status and security of that status are two defining features of legal citizenship. The former speaks to citizenship’s internal dimension by ensuring that all citizens of a state are recognised and treated as equal to one another. The latter speaks to citizenship’s external dimension. In functional terms, nationality not only protects individuals from what Michael Walzer calls the ‘infinite precarity’ of statelessness, it also serves an international system of sovereign states in ensuring that at least one mailing address is affixed to every individual for purposes of state responsibility and deportation.  

Apart from Joppke, all contributors accept statelessness as a constraint on citizenship stripping. In the world as we know it, where all habitable space is already assigned to some state, the claim that a citizen, by virtue of his or her conduct, does not belong to this state must entail the claim that the person does belong to that state.[6] This exposes two related problems for conduct-based revocation. The first is that the people whom Joppke depicts as appropriate targets of denationalisation are not merely enemies of a particular state or government. On his view, they ‘explicitly posit themselves outside the political community of the nation-state’. In other words, they repudiate citizenship as such or, if one prefers, pose as ‘citizens’ of a non-state entity that every other state in the world rightly regards as deeply threatening and inimical to their security. One expects that they will be as ‘tactical and cynical’ in their connection to one citizenship as to another. The Canadian citizenship revocation law adopts this model of the global terrorist by making conviction for a terrorist-related offence in another country grounds for revoking Canadian citizenship. If another state regards a Canadian citizen as a terrorist, that is reason enough for Canada to conclude that his citizenship connection to Canada is inauthentic and warrants amputation.  

One problem with Joppke’s argument is that it is self-defeating. If terrorists disavow citizenship as such, and are indeed hostis humani generi (enemies of all humanity), the same facts that would allow Joppke to pronounce that the Kouachis (for example) did not really belong to France must also yield the conclusion that they did not belong to any other state either. As a practical matter, if one state declares that formal possession of legal status is normatively insufficient to attach the terrorist to that state, it can hardly press the claim that legal status is sufficient to attach him to another state.  

Joppke mocks Peter Spiro for making the sensible observation that neither al Qaeda nor Islamic State are states, which means that they are not deportation destinations. Hailbronner abets Joppke by musing about whether IS’ military control over patches of land in the midst of violent conflict could be ratcheted up into something approximating statehood. If this is meant to hint at a viable legal option for where to dispose of otherwise stateless citizens, one might as well explore the equally plausible (from a legal perspective) option of launching them into space to orbit the globe aboard some inter-galactic Flying Dutchmen.[7] Alternatively, perhaps we are meant to shrug off as a convenient fact that powerful states can denationalise their citizens while they are abroad in conflict zones and make them some other [failing] state’s problem.  

Bauböck’s contribution directs one to another dimension of belonging, which reveals the second problem with Joppke’s approach. Citizenship stripping’s revival traces back to the anxiety about so-called ‘home-grown’ terrorists who, unlike the iconic foreign menace, actually possess citizenship by birth. Revoking citizenship enables the state to recast them as the alien within, in order to then cast them out. Denationalisation serves the narrative of terrorism as always and essentially foreign to the body politic by literally transforming the citizen-terrorist into the foreigner. But the very term ‘home-grown’ refutes the premise. The Kaouchi brothers were French citizens. They were orphaned as children and raised as wards of the French state. It is difficult to see them other than as products of French society, even if the ideology that seized them originated elsewhere. Indeed, any viable anti-terrorism strategy must attend carefully and critically to the local conditions that produce a descent into disaffection, hatred and violence – whether of the Islamist, neo-Nazi or any other variety. The French assailants may have been alienated from France, but there is no state to which they belonged more.[8]  

Ultimately, arguments about citizenship revocation turn on underlying conceptions of what citizenship is for, and expectations about what citizenship as legal status can achieve. Citizenship signifies membership, but beyond that general descriptor, citizenship inhabits multiple registers across many disciplines which are not reducible to or fully commensurate with one another. Citizenship as legal status is powerful because it carries the force of law, but also limited in what it can achieve for precisely the same reason. It is enabled and constrained because it is citizenship law and because it is citizenship law.  

States can and do use law to promote and endorse commitment, patriotism and active citizenship. They do it through public education, programmes for social inclusion, support and assistance, support for the arts and recreation, and other policies that build solidarity and encourage ‘good citizenship’. These various spheres of public activity are enabled through legal frameworks, and so law plays an important role here. Citizenship law’s chief constructive contribution lies in imposing (reasonable) requirements for naturalisation (such as residence and language acquisition) that genuinely facilitate integration and commitment to the national community.  

The state must also be concerned about ‘bad citizenship’ and it falls to the criminal justice and national security regimes to address the most egregious conduct that endangers or harms the national community. To conclude that contemporary citizenship law is ill-suited to advancing punitive goals does not deny that some people are very bad citizens, or that law plays a crucial role in addressing that fact. It simply opposes the recruitment of citizenship law to punish bad citizens by demoting them to non-citizens[9]. A man who attacks his mother may be a terrible son who deserves to be prosecuted for his crime, but it is not the job of family law to disclaim him as the son of his mother. Citizenship law is not criminal law. Nor is it national security law. Nor should it be rigged to open up a trap door that shunts citizens to immigration law.  

Accounting for citizenship status’ specific legal character also guides us toward what law can (and cannot) achieve. A number of plausible accounts of citizenship’s normative foundation circulate in political theory. They typically involve some idea of commitment or allegiance, whether to the state, the constitution, or democratic self-government. I do not here express a preference among them, but rather observe that they tend to focus on the internal relationship between state and citizen, and the grounds upon which the relationship may be properly said to have ruptured. They do not attend to the external dimension of legal citizenship, namely the role of nationality in stabilising the international filing system for humanity, and they do not furnish a satisfactory normative explanation for why the ‘bad citizen’ should be assigned to another state.  

Citizenship law cannot subject to legal regulation the myriad values, practices and aspirations ascribed to citizenship-as-belonging. This is unsurprising: Citizenship status enfranchises citizens above the age of majority, but there is no legal compulsion to vote (except in Australia. Belgium, Brazil and a few other states) and citizenship law does not purport to penalise those who never exercise their right or duty of active citizenship. Citizenship law does not purport to regulate access to most types of civil and social citizenship (in Marshallian terms).  

Nevertheless, defenders of revocation insist that citizenship law can and should regulate ‘loyalty and allegiance’ of citizens. The criminal law can punish people for intentionally committing wrongful acts, including treason, murder, and all other forms of horrific violence that concern us here. Some assailants may openly express contempt for their country of citizenship, while others (like the Ottawa shooter Joppke cites) display a messy history of mental illness and petty criminality preceding recent conversion to Islam. The putative value added by citizenship revocation is precisely that it makes lack of allegiance and loyalty the central element in defining crimes against citizenship. But to paraphrase Aldous Huxley, loyalty and allegiance are like happiness. They are byproducts of other activities. Fostering love of country is a valid aspiration of states and worth cultivating. But it cannot be manufactured by the carrot of a citizenship oath (as Joppke has elsewhere acknowledged), nor will it be conjured by the stick of revocation. Law is not adept at producing sentiment on command.  

Space constraints have led me to focus on those submissions that directly challenge my own position, and I have not responded to the cogent, provocative and creative insights offered by so many contributors. My own thinking has been deepened and provoked by them, for which I express gratitude and appreciation. I admit that I took as my remit citizenship revocation only in the literal, legal sense. I also acknowledge the criticism that confining my focus to citizenship revocation does not pay due regard to the claim that deportation of non-citizens may also constitute banishment in some circumstances, with attendant human rights implications. I hope that nothing I have said here gives the appearance of foreclosing or prejudging broader or different conceptions of banishment. There is always more to be said, and much to be done.

[1] The law permits denaturalisation of dual nationals who commit terrorism offences within fifteen years of naturalisation. http://www.theguardian.com/world/2015/jan/23/moroccan-born-man-jailed-terror-lose-french-nationality-sahnouni

[2] Audrey Macklin, “Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien”, (2014) 40 Queen’s Law Journal: 1-54

[3] Egypt does not extradite its nationals, and the Egyptian criminal justice system does not inspire confidence in its capacity to administer justice.

[4] This point draws on the insight of legal theorist Lon Fuller. He admitted that his principles of legality were formal in the sense that they did not stipulate any substantive moral content to law. But he also maintained that legal systems that were intent enacting morally repugnant laws would be hard pressed to reconcile achievement of those objectives with compliance with principles of legality. I extend Fuller’s intuition to suggest that a chronic pattern of non-compliance with principles of legality in relation to a particular law supports an intuition that the law is normatively defective in substance.

[5] States can and do use the criminal law to prosecute people for terrorist related offences committed at home and abroad. Expanded police powers of investigation and surveillance enable detection. Passport confiscation that prevents travel to conflict zones restrains a right of citizenship (exit), and some states prosecute citizens who participation in combat abroad when the return. Some states also restrict the right of citizens abroad to re-enter in the name of national security. I consider this less defensible as a matter of law, both in relation to the excluded citizen and other affected states but cannot develop that argument here.

[6] One could, I suppose, imagine a world where states re-appropriate statelessness in order to resurrect the figure of the global legal outcast (hostis humani, or perhaps homo sacer).  Stripped of law’s protection, this global outlaw could be killed or punished with impunity.  I will set this aside this possibility, and I am unsure if this is what Joppke has in mind.

[7] It seems more likely that the UK will simply continue the practice of depriving citizens of their UK citizenship while abroad, now accompanied with a statement that the Home Secretary believes that target can obtain citizenship elsewhere. Even if the person does not, in fact, have access to another citizenship, the individual’s physical location outside the UK and inside another state (to which they may have no legal relationship) will impose insuperable hurdles on challenging the decision or compelling the UK to repatriate him.  

[8] One might object that the sample set is too limited: After all, there are dual citizens (especially those who naturalised as adults) who might reasonably be understood as more connected to their country of origin. A short answer is that even if true, it would be a clear conflict of interest to let one state of citizenship make that determination. A fuller answer, which lies beyond the scope of this intervention, would explain why this type of calculus is inimical to the security that distinguishes citizenship from other statuses.

[9] The various legal strategies currently in use to detect, deter, prevent and respond to terrorism can and do fail, sometimes tragically and spectacularly. Is this because states have not arrogated to themselves sufficient coercive powers, or do inadequate human, technical and financial resources explain more about operational failure?


Read more on citizenship deprivation on the website of the ILEC project


European citizenship is the fundamental status of EU Member State nationals. What, then, are the implications when a state deprives a European citizen of his or her nationality? A new project funded by the European Commission’s DG Justice and coordinated by the Centre for European Policy Studies (CEPS) in collaboration with the University of Maastricht and EUDO CITIZENSHIP aims to investigate this under-researched field. Since 2012, ILEC (Involuntary Loss of European Citizenship: Exchanging Knowledge and Identifying Guidelines for Europe) has carried out a comparative study of the law and practices governing loss of nationality across the 28 Member States. A key question it seeks to answer is what impact the development of European citizenship is having on national competences covering the acquisition and loss of nationality in light of increasing jurisprudence from the Court of Justice and European Court of Human Rights. Consult the website of the ILEC project


Independence Referendums: Who should vote and who should be offered citizenship?


Kick-off contribution

by Ruvi Ziegler


Imagine that you are a Scottish-born recent graduate, fortunate enough (certainly in today’s economy) to be offered a job in Amsterdam, working for a multinational company. You relocated from Edinburgh to Amsterdam in 2012, and most of your family continues to reside in Scotland. You take a great interest in the Scottish independence referendum on 18 September 2014, when voters will be asked whether Scotland should ‘become an independent country’, and are concerned about its ramifications. If Scotland votes to stay part of the UK, you intend to vote from abroad in the UK general election in May 2015. The Scottish government pronounces that, if Scotland becomes independent, you will be automatically considered a Scottish citizen. Yet, in the referendum itself, you will not have your say: Scottish-born expatriates are excluded. In this kick-off contribution, I make the case for resemblance between the category of persons entitled to participate in an independence referendum and the initial citizen-body of a new state created by such a referendum.

The scope of my claim concerns only independence referendums which may result in ‘Succession of States’. This term is defined in Article 2 of the International Law Commission’s Draft Articles on Nationality of Natural Persons in Relation to the Succession of States as ‘the replacement of one state by another in the responsibility for the international relations of territory’. 

Independence referendums may result in the dissolution of an existing state, namely ‘[w]hen a State dissolves and ceases to exist and the various parts of the territory of the predecessor State form two or more successor States’ (Article 22); see, for instance, the breakup of Czechoslovakia (albeit without referendums). More commonly, perhaps, independence referendums may lead to the separation of part(s) of the territory of a predecessor state while the latter state continues to exist; recent examples include the two (unsuccessful) independence referendums in Quebec, as well as the cases of the Republic of South Sudan, and Timor-Leste. Scotland is the most pressing case thought to conform to the latter definition (see e.g. James Crawford and Alan Boyle, Referendum on the Independence of Scotland: International Law Aspects and House of Lords, Constitutional Committee, Scottish Independence: Constitutional Implications of the Referendum).

Article 1 of the ILC Draft Articles stipulates that ‘[e]very individual who, on the date of the succession of States, had the nationality of the predecessor State, irrespective of the mode of acquisition of that nationality, has the right to the nationality of at least one of the States concerned [predecessor and/or successor]’. In the event of dissolution, all citizens of a predecessor state are affected by a successful referendum, whereas in separation cases the legal status of many citizens of a predecessor state may not be affected.

A previous debate in this forum concerning electoral rights of ‘second country nationals’ in their EU state of residence provides a helpful context for normative questions posed in relation to the link between citizenship and the franchise. Notably, this debate concerns political membership and electoral participation in an existing political unit. Independence referendums are different: they may create new political entities, and require the attribution (as per the terminology employed by the ILC Draft Articles) or offer of citizenship to individuals.

Let’s leave aside for now the moral or political legitimacy of particular independence referendums and indeed the legality of referendums under particular national laws (though other contributors may wish to engage with these issues). Instead, following Article 3 of the ILC Draft Articles, my starting point is arguably less demanding, namely that the ‘succession of States [is] occurring in conformity with international law’ (note, in this regard, the International Court of Justice’s Advisory Opinion Regarding the Unilateral Declaration of Independence in Respect of Kosovo). As the 27 March 2014 UN General Assembly resolution regarding the ‘Territorial Integrity of Ukraine’ demonstrates, when referendums fail to meet the above criterion, international non-recognition may ensue.

In this introduction, my (main) point of reference is the Scottish Independence Referendum and the criteria for attributing citizenship on ‘day one’ of an independent Scotland. Other contributions will no doubt broaden the geographic scope of this debate, perhaps to Catalonia and elsewhere.  

I wish to put forward two propositions.

The first proposition is that putative ab initio citizens of a putative state (the initial citizen-body of a new state), whether its nationality is attributed to them or they are given the ‘right of option’, are clearly stakeholders (borrowing Rainer Bauböck’s seminal characterisation) in an independence referendum that may bring that putative state into being.

Moreover, as Bauböck argued (id) in support of external voting in national elections ‘[b]y virtue of their permanent membership, citizens have a life-long interest in the future of the polity, its survival and success’. The rationales for expatriate voting in national elections (in contradistinction from local elections) apply a fortiori to independence referendums in light of its fundamental nature and the long-term effects of its outcome.

Citizens enjoy internationally recognised rights, most prominently the right to return to and reside in their state of citizenship. This and other rights will be directly and meaningfully affected by the outcome of the referendum. The lives of putative citizens may be directly affected by subsequent electoral processes in the putative state (see e.g. the language employed by the EU Commission in its 29 January 2014 recommendation regarding EU citizens residing in another EU member state). In the context of the Scottish independence referendum, one only needs to point to u