by Christian H. Kälin, Group Chairman of Henley & Partners
The breakup of colonial empires, the collapse of the USSR and the many nationalist secessions all over the world have led to a proliferation of new sovereign states in recent times: whereas in 1945 there were 74 independent countries, today there are about 200. There is a primal human need for units of solidarity smaller than the species, and individual states represent the main political subdivision in the world. The realisation of a global State, which would ensure law and order around the world, is impossible.
The decentralised organisation of the world is particularly manifest in citizenship law, which draw connecting links between individuals and particular States. Each State needs a territory and a constituent body of citizens for it to claim its existence. The citizen is publicly and legally linked with the State through his citizenship, which is the political and legal point of reference.
The concept of citizenship exists in the tension between (internal) inclusion and (external) exclusion, as the freedom of the citizens of a State can only be guaranteed by the curtailment of the freedoms or access of individuals not belonging to that State (aliens, foreign persons). The welfare, policies and culture of a community are well protected through the restriction of access to individuals who do not belong to this community. In fact, a person’s right to live and work in a given country are a critical determinant of that person’s lifetime opportunities, and passports and visas are among the most important instruments of global social inequality, as they determine the opportunities for international mobility. The distinction between citizens and aliens is now relevant more than ever before as an important instrument, in particular for affluent nations, for excluding people from other countries – except for temporary access for tourists, students or business travellers, or where the labour or capital investments of aliens are in demand – and the issue of the regulation of access to state territories, labour markets and social benefits is crucial both for individuals and states. The control of this access is the preserve of immigration and citizenship law.
Regulating citizenship falls under the exclusive competence of individual states, which have broad creative discretion within public international law in this area, and thereby control transnational migration, promote labour market policy requirements or – in a steady transformation of its core functions – also stimulate direct investments. It is in this regulation that states also display the limitations of their creative political powers.
Debate on the primary reasons for the acquisition and the need for more restrictive or more liberal naturalisation provisions is as old as the concept of citizenship itself, which is not only a legal concept but also a socio-political phenomenon, touching upon fundamental policy issues and capable of affecting people’s personal lives. Much of the current major socio-political debate in modern Western societies is, in essence, concerned with citizenship. And citizenship is in the midst of a transformation.
For most people today, citizenship above all means having a passport or national identity card, which are now generally only issued to actual citizens and have thus become a direct expression of the corresponding benefits, rights and obligations of citizenship.
Most people acquire their citizenship without having to think about it, without tests, without a duration of stay in a territory, and without application, but simply and automatically at the moment of birth. The design of the citizenship laws governing States such as Austria, Malta, Cyprus, Antigua and Barbuda, or St. Kitts and Nevis, illustrate the globally increasing possibilities of acquiring citizenship through exceptional economic contribution to the domestic community and in so doing, contributing to the economic development of the country. This is nowadays most often referred to as “Citizenship-by-Investment”, a term coined by Henley & Partners nearly two decades ago and now widely accepted and even incorporated in national legislation.
Is this a sell-out of sovereignty at a time when almost everything can be bought and sold and which cannot be reconciled with the anchoring of citizenship law in democracy and human rights? Is this a violation of the “blocked exchange” between the monetary and political spheres? Or is it rather a legitimate path which leads to welfare gains through additional foreign direct investments and economic contributions at zero cost to society, which benefits government finances as well as the general population, and through which the fundamental objectives of citizenship law and of achieving the largest possible withdrawal of State intervention and thereby the strengthening of individual freedom can be attained?
The opinions on this vary widely, but what is clear in my mind is that we are in the midst of a global trend of transformation of citizenship. The future of Citizenship, the concept of Citizenship in the 21st century, will be very different indeed.
