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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]


Asem Khalil

Acquisition of citizenship — Loss of citizenship — Race and ethnicity

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  According to Hannah Arendt (at 81), a citizen ‘is by definition a citizen among citizens of a country among countries. His rights and duties must be defined and limited, not only by those of his fellow citizens, but also by the boundaries of a territory’ (Bosniak (2000) 448; Bosniak (2005) 190). Such a political understanding of citizenship resonates well with the ancient Greeks. For Aristotle, a man was a political animal and, as a result, being a citizen was natural (Heater 3–4). A citizen is ‘one who participates in the rights of judging and governing’ (Bosniak (2000) 470).

2.  Rather than political participation, the liberal understanding of citizenship is concerned with the rights and status of individuals (Bosniak (2000) 491; liberalism). Here, the citizen is a legal being ‘existing in a world of persons, actions[,] and things regulated by law’ (Pocock 36 cited in Bosniak (2000) 471 note 92). Such a conceptualization finds its source in ancient Rome, where ‘[a] citizen came to mean someone free to act by law, free to ask and expect the law’s protection . . . Citizenship ha[d] become a legal status, carrying with it rights to certain things’ (Pocock 37, cited in Bosniak (2000) 471 note 92; Heater 31).

3.  A polites or civis (ie a citizen, respectively in Greek and Latin) reflects the movement of a man from being zoon politikon towards the legalis homo (Heater 3–4; Walzer 211). Such an approach gives rise to a distinction between a citizenship that entails primarily duty and civic virtue in a republican form of state, and a citizenship that entails the state’s protection and the enjoyment of rights (Heater 4–5; republicanism). The prevalence of ‘the current legal understanding of the concept has its sources in the later Rome of the empire and in early modern reflections on Roman law’ (Walzer 211).

4.  Despite their differences, these two conceptions give rise in modern jurisprudence to an understanding of citizenship which revolves around the idea of the state (Heater 2). The lines of division between the two conceptualizations of citizenship, however, serve historical purposes, since the current prevailing theory of citizenship is neoclassical—ie, it is through the social contract that the citizen is viewed as a free and autonomous individual who makes, or shares in the making of, the laws he obeys (Walzer 212).

5.  This entry begins with a comparative overview of the meaning and purpose of citizenship (Section B), followed by a presentation of various ways to access and lose citizenship, making reference to as many jurisdictions as possible (Section C). In Section D, cases from specific jurisdictions are provided (the United States (US), Germany, France, and South Africa) which aim to show the role of courts in dealing with the many challenges facing citizenship. While it may be relevant to go into more details about specific cases and the challenges they have dealt with, this entry is not about any such cases in their specifics; but instead provides an overview of the main challenges courts have dealt with throughout history and in contemporary times.

6.  Finally, the concluding Section E does not promise to provide answers to all the issues raised in this entry, but instead puts forward further questions which need to be tackled by jurisdictions and courts. In particular, these are: the issue of the protection by the state of its citizens, which includes but is not limited to enjoying rights and freedoms, and especially those political rights which are exclusive to citizens (civil and political rights); the rights of citizens versus non-citizen residents, and the diminishing gap between them which puts in question the relevance of the distinction between the two institutions in the first place; and the issue of the duties of citizens, how this connects with recent restrictions on the enjoyment of citizenship, as part of the so-called ‘war’ against terrorism, and the ways courts and constitutions have changed accordingly in order to accommodate contemporary challenges.

B.  Meaning and Purpose of Nationality and/or Citizenship

7.  In modern states, citizenship is often referred to as a legal status possessed by certain individuals as legally sanctioned members in a state (Shachar 1003; Kondo 228–9). Modern citizenship is often conceived as a ‘national enterprise—a set of institutions and practices that necessarily take place within the political community … of the nation-state’ (Bosniak (2005) 190).

8.  From a legal point of view, however, citizenship is a state-centred legal status, the lack of which results in the production of a stateless person—an individual who does not enjoy a citizenship of any sovereign state. This ‘bare legal status’ of citizenship means a recognition of an individual as being entitled to rights within the political community of the state.

9.  Citizenship and nationality are, however, not synonymous (Neuman 587; Horváth and Rubio-Marín 72–76). The passage from being a national (referring to a belonging to a nation) to being a citizen in a state is not an automatic process. The opposite is also possible: one can be a citizen in a state without sharing the nation’s common heritage, which can be, inter alia, culturally, religiously, ethnically, and/or linguistically defined. In this section, we use citizenship to mean what is often in constitutions and laws referred to as citizenship or nationality, which is the state-centred status of those who are considered citizens of a particular state, and without which an individual is considered stateless.

10.  While the regulation of citizenship effectively follows the establishment of a sovereign state, most states recognize citizenship as it is, often without defining it, because it is deemed to be something that certain individuals already have. Not only does a state recognizes the citizenship of those who happen to be there at the time when the state is established, but it also recognises that of generations to come, provided they satisfy the conditions imposed by law. In other words, through citizenship, the people are at the same time constitutive of and constituted by the state.

11.  Despite the above, national constitutions often refer to citizenship and nationality interchangeably. This is the case, for example, of the Constitution of the Republic of Colombia (1991) (Colom) in its Article 98: ‘[c]itizenship is effectively lost by the renunciation of nationality’; or when there is a reference to ‘dual nationality’ (Art. 179). However, nationality in it Article 70 (based on cultural diversity) appear to refer to something different from citizenship as a legal status.

12.  When regulating citizenship, the Brazilian Constitution adds the title of ‘Nationality’ (Constitution of the Federative Republic of Brazil (1988) Arts 12–13 (Braz)), while in Articles 22(XIII) and 62, reference is made to both nationality and citizenship as if they constitute two different categories.

13.  The Constitution of France (1958) (Fr) also refers to statutes regulating nationality (Art. 34), while reference is made in it Article 77 to rules concerning citizenship. The rest of the constitution refers to citizenship and citizens, with the exception of Article 34 where reference is made to French nationals living abroad. Interestingly, the Colombian Constitution refers to citizens residing abroad when dealing with elections of the senate (Constitution of the Republic of Colombia (1991) Art. 171 (Colom)).

14.  The Constitution of the Republic of South Africa (1996) (S Afr) refers to the right of every child to nationality, from birth (Art. 28, para. 1(a)); while in Article 3 reference is made to a common South African citizenship. The Basic Law for the Federal Republic of Germany (1949) (Ger) refers to a ‘German’ as a different being than a citizen: Article 16 states that ‘(1) [n]o German may be deprived of his citizenship; (2) [n]o German may be extradited to a foreign country’. In Article 116, when regulating the so-called restoration of citizenship, it then defines what a ‘German’ means for the purposes of the Basic Law. The Basic Law gives the exclusive power of legislating with respect to citizenship to the federation (Basic Law for the Federal Republic of Germany (1949) Art. 73 (Ger)). Similar exclusive power to the federation is included in the Brazilian Constitution (Constitution of the Federative Republic of Brazil (1988) Art. 22 (Braz)); however, reference there is made to nationality, citizenship, and naturalization.

15.  The Colombian Constitution refers to ‘being Colombian’ (Constitution of the Republic of Colombia (1991) Art. 95 (Colom)) or to the culture of Colombians (Constitution of the Republic of Colombia (1991) Art. 70 (Colom)). It also juxtaposes citizens to aliens; however, both have the duty to obey the constitution and the law (Constitution of the Republic of Colombia (1991) Arts 4, 95 (Colom)). Only citizens, however, are obliged to take up arms when public need mandates (Constitution of the Republic of Colombia (1991) Art. 216 (Colom)).

16.  Building on the aforementioned ideas of citizenship (whether based on Greek or Roman traditions) and examples of national constitutions, it is fair to conclude that citizenship as a formal legal status has little meaning except in the context of a territorially-defined state (Bosniak (2005) 190; territoriality), while at the same time it remains closely bound to membership of the nation-state (Bosniak (2005) 191).

17.  Under international law as well as under domestic laws, states are ordinarily regarded as having sovereign authority to determine who will be accorded citizenship or nationality (Bosniak (2000) 494–495). For the International Court of Justice for example, in the Nottebohm Case, ‘[n]ationality is within the domestic jurisdiction of the [s]tate, which settles, by its own legislation, the rules relating to the acquisition of its nationality’ (Nottebohm Case (Liechtenstein v Guatemala), Second Phase (ICJ) (1955) ICJ Reports 4). The Court then refers to the practice of states when defining nationality as being ‘the juridical expression of the fact that an individual is more closely connected with the population of a particular [s]tate’ (population).

18.  National constitutions refer to the close connection of an individual to the population of a particular state in different ways, by regulating what international law had not denied: that states are sovereign and that regulating citizenship is within state’s jurisdiction; however, this should not be interpreted to mean that states have absolute discretion in regulating citizenship.

19.  In particular, there appear to be four ways in which national constitutions impose limits on states’ prerogatives when it comes to citizenship or nationality.

20.  First, most constitutions refer to a general framework of citizenship or nationality, and then impose its regulation by a statute (and in the case of a federation, by a federal statute, ie Constitution of France (1958) Art. 34 (Fr); Basic Law for the Federal Republic of Germany (1949) Art. 73 (Ger); Constitution of the Republic of South Africa (1996) Art. 3 (S Afr); Constitution of the Federative Republic of Brazil (1988) Art. 22 (Braz)). While the power of the president is sometimes recognized to issue provisional measures (subject to later submission to the parliament), such as in Brazil, the constitution forbids presidential provisional measures in matters related to nationality and citizenship (Constitution of the Federative Republic of Brazil (1988) Art. 62 (Braz)). In Hungary, the acquisition and termination of citizenship are part of the issues on which the president of the republic decides (Constitution of the Republic of Hungary (2011, amended 2013), Art. 9 (Hung) para. 4, i). Similarly, the Constitution of the Republic of Armenia provides that the president ‘shall grant citizenship of the Republic of Armenia and decide on the granting of political asylum’ (Constitution of the Republic of Armenia (1995) (Arm)).

21.  Second, the right to citizenship at birth is in some constitutions linked to the right to a name. The South African Constitution recognizes that ‘[e]very child has the right … to a name and a nationality from birth’ (Constitution of the Republic of South Africa (1996) Art. 28 (S Afr)). In the Colombian Constitution, ‘[t]he following are basic rights of children … their name and citizenship’ (Constitution of the Republic of Colombia (1991) Art. 44 (Colom)) (rights of children). The Brazilian Constitution (Constitution of the Federative Republic of Brazil (1988) Art. 12 para. 1 (Braz)) and the Constitution of the United States (1787) Amendment XIV s 1 (US) recognize the right to citizenship by birth regardless of the parents’ nationality. It is also an acceptable practice by the state to limit certain high functions within the state to those born citizens.

22.  Third, the constitution enumerates various political rights which are inherent to citizenship, in particular the right to vote and the right to form political parties. Many constitutions refer to citizens as being those entitled to the exercise of political rights, in particular the right to vote (Constitution of France (1958) Arts. 3, 4 and 34 (Fr); Basic Law for the Federal Republic of Germany (1949) (Arts 12a(6), 33(1) (Ger)); Constitution of the Republic of South Africa (1996) Art. 3 para. 2 (S Afr); Fifteenth Amendment (Amendment XV) (1870) to the United States Constitution; Constitution of the Republic of Colombia (1991) Art. 99 (Colom)) and the right to form political parties (Constitution of the Republic of South Africa (1996) Art. 19 (S Afr); Constitution of the Republic of Colombia (1991) Art. 107 (Colom); Constitution of the Federative Republic of Brazil (1988) Art. 62 (Braz)). Reference to other civil and political rights (and sometimes to economic, social and cultural rights) is also made, although sometimes these are in common with aliens, in particular in the South African and Colombian Constitutions. Reference is also made to equal protection by the law of all citizens (Constitution of the Republic of South Africa (1996) (S Afr) Preamble).

23.  Fourth, limitations on states’ power to revoke citizenship in certain cases, and the obligation to restore a lost citizenship in others. The German Basic Law clearly limits the state from depriving a German from his citizenship, which can be lost only pursuant to law in cases that does not lead to statelessness (Basic Law for the Federal Republic of Germany (1949) Art. 16 (Ger) para. 1). Similarly the Basic Law limits the state’s power of extradition to a foreign state, with exceptions made to a Member State of the European Union or to an international court of law, ‘as long as the fundamental principles of a state governed by law are observed’ (Basic Law for the Federal Republic of Germany (1949) Art. 16 (Ger) para. 2). Similar general prohibition is found in the South African Constitution: ‘[n]o citizen may be deprived of citizenship’ (Constitution of the Republic of South Africa (1996) Art. 20 (S Afr)). Similarly, the Constitution of the Republic of Hungary: ‘[n]o one shall be deprived of Hungarian citizenship established by birth or acquired in a lawful manner’ (Constitution of the Republic of Hungary (2011, amended 2013), Art. G (Hung) para. 3). For the Colombian Constitution: ‘[c]itizenship is effectively lost by the renunciation of nationality, and its exercise may be suspended by virtue of a judicial decision in the cases determined by statute (Constitution of the Republic of Colombia (1991) Art. 98 (Colom)). Those whose citizenship has been suspended may request its restoration’. Similarly, the Polish Constitution provides that ‘[a] Polish citizen cannot lose Polish citizenship except by renunciation’ (Constitution of the Republic of Poland (1997) Art. 34 para. 2 (Pol)).

C.  Access to and Loss of Citizenship

24.  Citizenship can be acquired at birth or after birth. At birth, citizenship can be accessed as a result of birth within the territory of the state (the ius soli principle) or as a result of parentage (the ius sanguinis principle). After birth, the most common way to access citizenship is through naturalization. Other methods may exist, such as recognition, declaration, or restoration (Kondo 227–8). Temporary access to citizenship by office or by service remains an exclusive case to the Vatican City state, and will not be dealt with in this section.

25.  A few states (such as the US, Canada, and Brazil) still apply the generous conferral of citizenship by birth within the territory of the state (Neuman 591–2; Shachar 1006). In the US, a child born in the US, even to undocumented parents, is a US citizen. The ius soli is best reflected in the opening sentence of the Fourteenth Amendment (Amendment XIV) of the US Constitution (1868): ‘[a]ll persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside’ (ibid.). Similarly, the Brazilian Constitution provides that Brazilians by birth are ‘those born in the Federative Republic of Brazil, even though of foreign parents, provided that they are not in the service of their country’ (Constitution of the Federative Republic of Brazil (1988) Art. 12 (Braz)). The Constitution of the Republic of India (1950) Art. 5 (India) provides that, at the commencement of the constitution ‘every person who has his domicile in the territory of India and . . . who was born in the territory of India ... shall be a citizen of India’.

26.  Worldwide, ius sanguinis has been adopted as a way to access citizenship (Shachar 1009). In France, for example, this principle came with the post-French Revolution Civil Code of 1804 (Shachar 1009; Bertossi and Hajjat 2). Although some countries still practice discrimination against certain members of ethnic groups, religious communities, or against women generally, most countries now accept the idea that all citizens have the right to transmit their citizenship to their offspring at birth. It is worth mentioning that most countries ‘have now repealed gender-discriminatory laws that only permitted fathers (and not mothers) to transmit citizenship to their children’ (Shachar 1007). Despite providing for gender equality in transmitting citizenship to offspring, some constitutions, however, have maintained discrimination against mothers in their ability to transmit citizenship to their offspring born outside the country, such as the Malaysian Constitution (1957) Art. 14(2)(c) (Malay) (Shachar).

27.  The South African Constitution recognizes the right of children to a name and to a nationality from birth (Constitution of the Republic of South Africa (1996) Art. 28 (S Afr)). The Brazilian Constitution also recognizes the right to transmit citizenship to offspring, subject to certain conditions, whenever one of the parents is Brazilian (Constitution of the Federative Republic of Brazil (1988) Art. 12 (Braz)). The Constitution of the Republic of Hungary recognizes the right that: ‘[t]he child of a Hungarian citizen shall be a Hungarian citizen by birth’ (Constitution of the Republic of Hungary (2011, amended 2013) Art. G (Hung) para. 1). According to the Polish Constitution: ‘Polish citizenship is acquired by birth to parents who are Polish citizens’ (Constitution of the Republic of Poland (1997) Art. 34 (Pol)). The Constitution of the Arab Republic of Egypt (2014) Art. 6 (Egypt) now recognizes this right too: ‘[c]itizenship is a right to anyone born to an Egyptian father or an Egyptian mother’.

28.  Historically, territoriality was also relevant for ius sanguinis citizenship; with time, it became irrelevant in most countries for the conferral of citizenship, provided the satisfaction of certain conditions and procedures imposed by states on cases of birth outside the territory of the state. However, it is still common in many constitutions to limit access to certain governmental offices to only those citizens born within the territory of the state. It is possible that some countries (such as the US) still distinguish between the status of citizenship acquired by birth within the territory and that acquired by parentage for birth outside the territory of the state, making it possible to distinguish between the kind of protection citizenship has (constitutional or statutory, for example) depending on the place of birth (Neuman 591).

29.  In the past, some countries used to limit the right to access citizenship to those non-citizen nationals who share some ethnically define characteristics, or their descendants. Prior to its reform in 2000, Germany attributed membership based exclusively on descent, while naturalization was exceptional (Shachar 1010). Some countries make it explicitly easer to access citizenship for descendants of ‘nationals’ up to the third generation, such as in Poland, Hungary, and other central and Eastern European citizenship regimes (Shachar 1009). Armenia opens up its citizenship to individuals of ‘Armenian origin’ (Shachar); according to the Armenian Constitution, ‘[i]ndividuals of Armenian origin shall acquire citizenship of the Republic of Armenia through a simplified procedure’ (Constitution of the Republic of Armenia (1995) Art. 14 (Arm)). Israel establishes an ‘entitlement to citizenship to those with Jewish ancestry (as defined by the Law of Return), treating them as in potentia members of the state’ (Shachar 1009). The Brazilian Constitution distinguishes between those persons whose country of origin is a Portuguese-speaking nation and the rest, imposing much stricter rules on the latter group (Constitution of the Federative Republic of Brazil (1988) Art. 12 (Braz)).

30.  However, it is increasingly common in democratic states to enable access to citizenship through naturalization as a result of certain conditions, often revolving around length of residency (Shachar 1013), and regardless of their ‘belonging to the fold’ on the basis of national, linguistic, religious, or cultural heritage, for descendants to gain access to citizenship (Shachar 1010).

31.  In those countries which do not accept the ius soli principle as a method to access citizenship, naturalization serves to deal with second or third generation alien individuals who are born in the country to non-citizen migrant parents, such as was the case in Germany with the second and third generations of immigrants’ children of Turkish origin (Lansbergen and Shaw 64). France was one of the first countries to reincorporate the ius soli principle in order to attribute nationality to children of immigrants, even against their will (Bertossi and Hajjat 2). With the recent terrorist attacks in some Western capitals, authors have started to refer to ‘cultural turn’, noticing increasingly restrictive migration and citizenship policies (Shachar 1012).

32.  When it comes to the protection of their status as citizens, naturalized citizens may be restricted from certain privileges for citizens generally. In addition, certain offices (such as the presidency) may be restricted to those who are born to citizen parents, such as in the Egyptian Constitution (Constitution of the Arab Republic of Egypt (2014) Art. 141 (Egypt)) and the Constitution of the Tunisian Republic (2014) Art. 74 (Tunis).

33.  Besides residency, a non-citizen often has access to citizenship after birth as a result of marriage (to a citizen). This is the result of the development in favour of ‘family unity’ in nationality which has been present since the Code Napoleon (Neuman 600). It is worth mentioning that some countries (for example Jordan and Lebanon) still distinguish between citizens based on gender: access to citizenship through marriage is possible only if the citizen is the (male) husband. Besides this discrimination, some countries, such as many Gulf countries, are still in general reticent towards naturalization as an option to access citizenship.

34.  As a right, voluntary loss of citizenship is possible. The South African Constitution leaves the regulation of the loss of citizenship to national legislation (Constitution of the Republic of South Africa (1996) Art. 3 para. 3 (S Afr)). Whenever dual nationality is not accepted by a state—as was the case in most countries in the past—a citizen relinquish his or her old citizenship so as to be able to acquire a new one; or at least, the acquiring of the new citizenship is considered as a voluntary relinquishing of the old one (Aleinikoff 1471). The Brazilian Constitution refers to the loss of citizenship (providing for two exceptions to this rule) for those who acquire another nationality (Constitution of the Federative Republic of Brazil (1988) Art. 12 (Braz) para. 4).

35.  As it can be acquired, so citizenship can also be lost involuntarily (Bosniak (2005) 197). Naturalized citizens, for example, can be denaturalized for fraud or other defects in the proceeding that led to their naturalization (Neuman 596). Such a possibility is accepted by courts, such as in the US, as being the normal consequence of the fact that naturalization is granted at first place by the state (Neuman). In Brazil, the constitution refers to the possibility of cancellation of naturalization by judicial decision ‘because of activity harmful to the national interest’ (Constitution of the Federative Republic of Brazil (1988) Art. 12 (Braz) para. 4).

36.  This does not mean that only naturalized citizens can lose their citizenship. Some countries accept that it is a sovereign prerogative—whenever in the legitimate national interest and in response to some actions by the citizen—to also revoke ius soli citizenship. Historically, for example, when a woman married a foreign husband, she lost her citizenship and acquired her husband’s (Neuman 596). The marriage was a voluntary act of the woman, although the revocation of citizenship was not.

37.  In recent times, many countries have adopted constitutional provisions that enable the government to revoke citizenship, in particular for cases of dual nationals, in circumstances where ‘that deprivation is conducive to the public good’—for ‘breach of allegiance’ or ‘disloyalty towards the state’ etc. (Shachar 1011). In recent times there has been a remarkable shift in the perception of dual nationality: from highly disfavoured at the end of the twentieth century, to widely accepted in contemporary states (Spiro 112).

D.  Case Studies and Comparative Assessment

38.  The four case studies that will be discussed in details are the USA, Germany, France, and South Africa. The rationale for this selection is both theoretical and practical. Theoretically, they represent different evolving ways of understanding citizenship, with arguably different outcomes in the political and legal order, rendering them relevant for a comparative assessment. Practically, these four cases are sufficiently discussed in the literature, in particular in the light of the active role played by the respective high or constitutional court which helped define the institution of citizenship. Since this is not a section about citizenship in these four countries, interest will be limited to presenting selected statutory or constitutional amendments, or the most recent case law by higher constitutional jurisdictions, ie the Supreme Court of the United States, the German Federal Constitutional Court (FCC), the French Constitutional Council, and the South African Constitutional Court.

1.  United States

39.  The concept of citizenship is not defined in the 1791 Constitution—although the text presupposes both the citizenship of the US and that of the individual states (Neuman 588). The 1791 Constitution also gave the congress the power to ‘establish a uniform [r]ule of [n]aturalization’, leaving citizenship by birth undefined—resulting in the infamous case of Dred Scott v Sanford (1857) (US), where ‘the people’ was defined in ethnic terms (Neuman 588; Bosniak (2010) 11, 23; Maltz 1138; Eisgruber 54). It was only after the American Civil War and the abolition of slavery that the Fourteenth Amendment was adopted (overruling the Dred Scott decision) together with the so-called ‘citizenship clause’ which guarantee citizenship on a racially neutral basis (Neuman 588).

40.  With the adoption of the Fourteenth Amendment, individual states lost control over determining who their own members were—while at the same time keeping citizenship status fragmented (Neuman 590) based on the origin of the citizenship rule, and, as a result, the kind of protection the citizenship enjoys—as interpreted by the Supreme Court. In cases starting with Downes v Bidwell (1901) (US), the court accepted a category of ‘unincorporated territories’, making it possible to distinguish between ‘nationality’ in the international sense and ‘citizenship’ in the constitutional sense. With time, congress extended US citizenship by statute to the populations of Puerto Rico, the Virgin Islands, and Guam, leaving American Samoans in the category of US nationals (non-citizens) (Neuman 590–1) up to the time of writing.

41.  In Rogers v Bellei (1971) (US), the Supreme Court maintained that citizenship provided by statute to a child born to a US parent abroad amounted to naturalization, but not to the Fourteenth Amendment’s naturalization ‘in the United States’ (Neuman 591). In Elk v Wilkins (1884) (US), the Supreme Court adopted the interpretation that ‘subject to jurisdiction’ of the US at birth excluded those who owed immediate allegiance to their Native American tribes, which are a separate though dependent political community (Neuman 592; Eisgruber 63); accordingly, their US citizenship cannot be by birth, but by congress statute only—which took place in 1924, when congress conferred citizenship on all Native Americans born in the US, regardless of their tribal membership (Neuman 592).

42.  In series of cases, the Supreme Court determined the kind of protection for citizenship against denationalization or loss of citizenship, while keeping the possibility for the government to denationalize in specific cases where citizens’ actions were with intent of relinquishing their citizenship (Schneiderman v United States (1943) (US); Trop v Dulles (1958) (US); Afroyim v Rusk (1967) (US); Rogers v Bellei (1971) (US); Vance v Terrazas (1980) (US); Neuman 597; Sprio 119–20; Aleinikoff 1471).

43.  The Fourteenth Amendment distinguished between the due process and equal protection clauses which apply to ‘persons’, and the clause prohibiting states to ‘abridge the privileges or immunities of citizens of the [US]’, opening the debate between whether persons or citizens are catalysts of rights in the US. The Supreme Court interpreted those ‘privileges or immunities’ rather narrowly in the Slaughter-House cases (1873), to include the right of citizens to travel from one state to another and the right of a US citizen to settle in any state (Neuman 593–4). They also include the right to remain in the US, and the right to return to the US, having left. Today this right is understood in the US as essentially absolute (Nguyen v INS (2001) (US)) without preventing the extradition or transfer of citizens for foreign prosecution (Munaf v Geren (2008) (US)) (Neuman 595–6).

44.  The constitution explicitly demands citizenship as a qualification for elective federal office, and the Supreme Court confirmed that such an exclusion of aliens does not contradict the democratic system (Cabell v Chavez Salido (1982) (US); Neuman 595; Rodriguez 38–9; Maltz 1179–80). Interestingly, the right to vote is not directly guaranteed in the constitution for citizens, and, in fact, alien suffrage was practiced in the US; the Court reaffirmed (in Pope v Williams (1904) (US)) that the right to vote is not a privilege springing from citizenship in the US. Finally, the Court judicially abolished remaining restrictions on citizens’ right to vote (ie in Kramer v Union Free School District No. 15 (1969) (US); Neuman 594; Maltz 1175). Since 1996, however, a federal statute has made it a crime for non-citizens to vote in federal elections (Neuman 595).

45.  Finally, social rights are not citizens’ rights and they are not protected by the constitution. The Supreme Court has not interpreted the constitution as substantially protecting those rights either directly or by means of the equal protection guarantee (San Antonio Independent School District v Rodriguez (1973) (US); Dandridge v Williams (1970) (US); Neuman 596). All other rights that are covered by due process or equal protection clauses extend to all persons, and not to citizens only. As noted by Chief Justice Rehnquist in United States v Verdugo-Urquidez (1990) (US), ‘the people’ represents a term of art used throughout the constitution to refer ‘to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community’.

2.  Germany

46.  Like the US, Germany is a federal country. The context in which citizenship law has developed is however different, and has revolved around attempts to enfranchise alien individuals and at European integration. On the one hand, Germany was not open to integrating non-German nationals into citizenship; and on the other hand, the Federal Constitutional Court (FCC) has blocked attempts to extend what some call ‘citizenship rights’—in particular the right to vote—to non-citizens. Either way, in order to enable integration of non-German nationals, constitutional amendments were necessary in Germany.

47.  In the US Constitution (as interpreted by the US Supreme Court), ‘the people’ is not limited to citizens, but rather includes other persons with some sort of property or presence in the US (Rodriguez 37). As Alexander Bickel famously argued, we ‘live under a [c]onstitution to which the concept of citizenship matters very little’ and that ‘prescribes decencies and wise modalities of government quite without regard to the concept of citizenship’ (Rodriguez 37). In Germany, citizenship matters a lot: it plays a foundational role in Germany in ways that it does not do so in the US, because it determines Staatsvolk. As a result, the constitutional protection citizenship has in Germany carries a special weight (Horváth and Rubio-Marín 76).

48.  Germany, in fact, was known for what some call an ‘ethnic nationalist conception’ of citizenship which was the driver behind the country’s formerly restrictive German nationality laws, whereby citizenship was acquired almost exclusively by descent and acquiring citizenship by naturalization was uncommon (Lansbergen and Shaw 64). Another reading of the German Basic Law claims that it is an error to conclude that the model of German national citizenship is an ethnic one, and that instead, for the FCC, the German nation is in fact a purely civic construct for constitutional purposes, which is a synonym only for the German Staatsvolk (Horváth and Rubio-Marín 75).

49.  Regardless of the theoretical discussion about the kind of nation and citizenship Germany adopts, it is a fact that the constitutional reform of 1999 helped to relax German nationality law to enable the naturalization of migrants and their descendants, in cases of the satisfaction of residency conditions (Lansbergen and Shaw 64; Horváth and Rubio-Marín 83). This served the integration of second and third generations of non-citizens who were born in Germany, while at the same time maintaining the restrictive attitude towards dual nationality in general through the ‘the duty of choice’—a naturalized German in this sense risks having his nationality revoked in cases of re-application to his previous nationality, something the FCC has continuously supported as constitutional (ie BVerfG (12 December 2006) (Ger) in Horváth and Rubio-Marín 80–1).

50.  Much earlier, the FCC ruled that the extension of voting rights to non-citizens violated the German Basic law (the so-called Foreign Voters Case (1990) (Ger), dealing with local elections). Rather than considering the vote as a citizen right, however, the Court considered that enfranchising non-citizens would undermine the right of the German people to self-determination—thus rejecting the idea of democratic deficit when non-citizens are governed by laws they had no voice in formulating (Rodriguez 33–34). The FCC recognized the possibility that the Basic Law could be amended; and indeed the Basic Law was amended in 1992. The extension of the right to vote to some non-citizens, however, did not extend to all aliens in general. Indeed, the amendment enabled an exception to the general prohibition rule so as to permit nationals of EU Member States to vote in county and local elections, in accordance with the requirements of the Maastricht Treaty (Rodriguez 33, n 11).

51.  Similarly, the FCC reviewed the constitutionality of legislation implementing the European Arrest Warrant and found it unconstitutional because of contradiction with the Basic Law—in particular, Article 16 paragraph 2 which prohibited the extradition of Germans (BVerfG (18 July 2005) (Ger) 2 BvR 2236/04. (Ger) para. 63, 102; both cited in Horváth and Rubio-Marín 88). To overcome this obstacle, Article 16 was amended in 2000, maintaining the prohibition of extradition of Germans but introducing the possibility of an extradition to another EU Member State or international court on the basis of a statutory exception, provided that rule-of-law guarantees are respected (Horváth and Rubio-Marín 88, n 85). Again, the attitude towards citizenship remains substantially unaltered, although an exception was introduced to the rule through constitutional amendment.

3.  France

52.  According to Article 34 of the French Constitution (Constitution of France (1958) (Fr)), nationality is within the competence of the law. In 2016, a new constitutional amendment was proposed so as to include in Article 34 the possibility of depriving French-born citizens of their French nationality if they have another nationality and are convicted of a crime constituting a serious offense against the life of the nation.

53.  In an earlier decision of the Constitutional Council (Decision 96–377 DC of 16 July 1996 (Fr)), however, the deprivation of nationality from persons who had acquired French nationality was considered to be constitutional. In fact, the Act referred to (Act to strengthen enforcement measures to combat terrorism and violence against holders of public office or public service functions and to enact measures relating to the criminal investigation police) included a new provision that ‘persons having acquired French nationality may be deprived of that nationality where they are convicted of a crime or an offence constituting an act of terrorism’. The Constitutional Council reconfirmed what was already mentioned in an earlier case, that ‘[t]he principle of equality does not preclude the legislature from treating different situations differently nor from derogating from equality for reasons of general interest, provided in both cases that the difference of treatment is in relation to the object of the statute providing for it’. It is recognized by the Constitutional Council that:

persons having acquired French nationality and persons who enjoy French nationality by birth are in the same situation; however, in view of the avowed objective of combating terrorism, it is in order to provide that for a limited period the administrative authorities may deprive a person of French nationality without the resultant difference in treatment being a violation of the principle of equality; given the serious intrinsic gravity of offences of terrorism, it is not contrary to Article 8 of the Declaration of Human and Civic Rights for the legislature to provide for such penalty.

54.  While the foundations of French nationality remain unchanged, new restrictive reforms were introduced in 2003—and reconfirmed in a 2011 law which introduced a test on the history and ‘culture’ of France—targeting foreign spouses (Bertossi and Hajjat 3, 15). The Code of Nationality (Reform) Act was referred to the Constitutional Council. In Decision 96-377 DC (16 July 1996) (Fr), the Constitutional Council confirmed that equality does not preclude legislation from laying down different rules for different categories of people, such as, in this case, where the new law requires two years to elapse after the marriage of an alien or stateless person to a French national before nationality may be acquired by declaration. The Constitutional Council, however, considered it unconstitutional to add additional requirements to young aliens born in France to foreign parents, whereas birth (combined with age and residence) confers automatic entitlement to French nationality. The legislature, in other words, could not by legislation remove the legal protection provided for in Article 34 of the French Constitution (Constitution of France (1958) (Fr)).

55.  So far in France, however, the issue of nationality remains mostly within the domain of law, and the decisions of the Constitutional Council dealing with matters of nationality are not limited in number and scope (Schwartz; Decision 86-145 L (19 March 1986) (‘sur la nature juridique de dispositions du code de la nationalité’) (Fr); Decision 93-321 DC (20 July 1993) (‘sur la loi réformant le code de la nationalité’) (Fr); Decision 93-325 DC (13 August 1993) (‘sur la loi relative à la maîtrise de l’immigration et aux conditions d’entrée, d’accueil et de séjour des étrangers en France’) (Fr); Decision 96-377 DC (16 July 1996) (‘portant sur la loi tendant à renforcer la répression du terrorisme’) (Fr); Decision 98-389 DC (5 May 1998) (‘sur la loi relative à l’entrée et au séjour des étrangers en France et au droit d’asile’) (Fr); Decision 2010-1 QPC (28 May 2010); Decision 2011-631 DC (9 June 2011) (‘sur la loi relative à l’immigration, à l’intégration et à la nationalité’) (Fr); Decision 2011-186/187/188/189 QPC (21 October 2011) (Mlle Fazia et autres) (Fr); Decision 2012-227 QPC (30 March 2012) (M Omar S) (Fr); Decision 2012-259 QPC (29 June 2012) (M Mouloud A) (Fr); Decision 2012-264 QPC (13 July 2012) (M Saïd K) (Fr).

56.  Modern French nationality law is based on principles set down in the 1889 and 1827 laws: ‘[s]ince then, French nationality legislation has been a mixture of ius soli, ius sanguinis and state-controlled access to citizenship (eg naturalisation and marriage’ (Bertossi and Hajjat 2, 5). The French Civil Code (1804) (Fr) invented the ius sanguinis and from then diffused across continental Europe during the nineteenth century. France had also reincorporated the ius soli in order to attribute nationality to children of immigrants, even against their will. In fact, the capacity for these children to decline French nationality was abandoned in 1889 (‘double ius soli’) and 1927 (ius soli) (Bertossi and Hajjat 2).

57.  During the First World War, and in response to Germany’s Delbruck Law of 22 July 1913 which allowed Germans who were naturalised abroad to retain their original citizenship, France instituted formal procedures for denaturalisation (déchéance) with the laws of 7 April 1915 and 18 June 1917. After the war ended, the political priority shifted to demographic concerns and to the increase of naturalizations, and this explains why France, in contrast with Germany, has been tolerant towards dual citizenship since the First World War (Bertossi and Hajjat 2, 5). Since 1973, French nationals living abroad (in complete gender equality) can transmit their French nationality through an infinite number of generations, and their foreign spouses can acquire French citizenship through marriage, by declaration (Bertossi and Hajjat 2–3).

4.  South Africa

58.  While most analysis of citizenship so far in the US, French, and German experiences has been related to citizenship in the legally-formal sense—and as a result to citizenship as a status that determines the boundaries of the community—South Africa provides an example of a relatively open conception of citizenship (Choudhry and Saunders 7), where modern preoccupations with rights and benefits that are conferred or enjoyed prevail (Klaaren 97; Adelman 569–72).

59.  While in Germany, France, and the US citizenship reform (to become more inclusive and more egalitarian) was possible through constitutional amendments, legislative statutes, or executive orders, in South Africa it was the Constitutional Court that played the key role in expanding citizenship rights (Shachar (2012) n2; Choudhry and Saunders 7).

60.  In fact, it was the Constitutional Court that opened up rights for gay and lesbian citizens (see National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (2000) (S Afr), cited in Shachar (2012) n2). The Court has also extended socioeconomic rights to non-citizen individuals, on equal terms with citizens of South Africa (see Khosa v Minister of Social Development and Mahlaule v Minister of Social Development (2004) (S Afr); Klaaren 100; Adelman 562). This latter decision is based on a previous one where the court confirmed that citizenship was not a listed ground of prohibited discrimination (Adelman 566), in terms of the constitutional equality clause (see Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province) and Another (1997) (S Afr); Klaaren 100).

61.  Similarly, in Kaunda and Others v President of the Republic of South Africa and Others (2004) (S Afr) and Von Abo v Government of the Republic of South Africa and Others (2009) (S Afr), a lawful-residence understanding of citizenship was the basis for the court’s majority admitted the state’s duty of extraterritorial diplomatic protection rather than providing greater relief for citizens (and not to permanent residents) extraterritorially, as a republican view of citizenship may have concluded (Klaaren 104–6).

62.  In a series of other cases challenging the Electoral Act’s denial of certain categories of registered citizens to practice their right to vote as a result of their being outside the territory the day of the election (Klaaren 106–7), the constitutional court (see Richter v The Minister for Home Affairs and Others (2009) (S Afr)) confirmed that the applicant’s constitutionally protected right to vote for a citizen residing temporary abroad is infringed because he was prevented from exercising his right to vote by statutory provision—making it possible for registered voters to exercise their constitutionally protected right if they notify of their absence in due time (Constitutional Court of South Africa, Media Summary).

E.  Conclusion

63.  Citizenship entails a promise of equality before the law as a member of a political community (Shachar 1003). It also ‘opens up a host of rights, opportunities, and privileges for those who count as full members’ (Shachar 1004–5). In brief, and as put eloquently again by Hannah Arendt, citizenship as a status is ‘the basic right to have rights’ (Shachar 1011).

64.  Besides enjoying the rights and freedoms affiliated with citizenship, citizens enjoy the protection of their state. The Constitution of Hungary explicitly refers to such an obligation on the state: ‘Hungary shall protect its citizens’ (Constitution of the Republic of Hungary (2011, amended 2013) Art. G (Hung) para. 3).

65.  As part of one political community, citizens are expected to reciprocate by fulfilling their civic obligations. The South African Constitution refers to citizens’ equal entitlement to ‘rights, privileges and benefits of citizenship’ as much as their being ‘equally subject to the duties and responsibilities of citizenship’ (Constitution of the Republic of South Africa (1996) Art. 3 (S Afr).

66.  Citizenship entails the responsibility of citizens ‘to contribute financially to the government’s resources through taxation’ (Neuman 599). Of course, foreigners with residency status will be asked to pay taxes, but this obligation is temporary as it is strictly connected to their residency period. Another duty which is exclusive to citizens is military service: this applies even in countries where professional army is in place and without obligatory military service. When called for duty, citizens have the obligation to compel and render military service (Neuman 598). Few countries still apply jury service as part of civil litigation and criminal cases. In cases where they do—as in the US—citizens are obligated to and are compelled to provide for that service upon request (Neuman).

67.  Citizens also have the obligation to loyalty. This was interpreted in the past to justify the rejection of dual nationality. Many countries clearly define what loyalty means so as not to include in it any prohibition of criticism for the government or peaceful dissent (Neuman 599). In the US, for example, treason is limited to levying war against the US or to adhering to its enemies and giving them ‘aid and comfort’ (Neuman). Again, loyalty may also be required from foreigners who are connected to the political community by a temporary residency status; however, this obligation persists as long as the connection is there. Citizens always have the obligation of loyalty, even when they are abroad, and even when they hold dual nationality (Neuman).

68.  Citizenship is often presented in juxtaposition to the status of non-citizen residents (Bosniak (2005) 198; Neuman 588). As a matter of fact, citizenship serves to distinguish between those who are legally sanctioned members in a state and the rest (Shachar 1003)—between those who are included and those who are excluded from membership in a political community (Siim 758). Accordingly, the nature of citizenship is both internally inclusive and externally exclusive (Lister et al. 11; Siim 758). As a result, some constitutions explicitly exclude foreign citizens and persons without citizenship from certain rights, or limit their access to them even though those rights are not strictly connected to political rights (which are often but not necessarily affiliated with citizenship). For example, the Armenian Constitution: ‘[e]veryone is entitled to private property and inheritance. Foreign citizens and persons without citizenship shall not have the right to own land, except in cases prescribed by law’ ((Constitution of the Republic of Armenia (1995) Art. 28 (Arm)).

69.  However, formally speaking, citizenship is nothing else but a bare legal status such as legal residency, for example. Besides, a thorough scrutiny may reveal that in many countries the gap between the two statuses of citizen and non-citizen, in terms of rights and duties within a specific political community, is shrinking. Non-citizens are increasingly sharing some of the advantages of belonging to a specific political community, thanks to temporary or permanent residency status (Bosniak (2005) 198–9). In addition, the tendency worldwide is to make most human rights available for all human beings, and not for citizens only (Turner 82), rendering citizenship often fundamentally insignificant (Brysk and Shafir; Bosniak (2005) 197).

70.  I suggest that such a view of citizenship—in juxtaposition to that of a foreign resident—is misleading because the point of departure was misplaced. Instead, citizenship is better understood in juxtaposition to statelessness. Only then will citizenship mean what it is at it very basic level (or as I call it here, a ‘bare legal status’): as a minimum of security in, and an indispensable protection by, a sovereign state, in a world that is state-centred (Shachar 1012).

71.  As a bare legal status, having a citizenship is like having a name: it does not make you who you are, but you cannot exist as a legal person without having one. Citizenship alone doesn’t make an individual a member of a political community (with equal rights and duties), nor does it entail necessarily privileges or advantages that non-citizen residents do not—or need not—share. But in order to be part of a political community and enjoy rights and freedoms, citizenship—even if conceived as a bare legal status—is increasingly viewed as indispensable institution.

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