3.1 Jus Sanguinis or Jus Soli

As a general principle of the sovereign-state system, the expected method for permanent resident aliens to fully participate in will formation as constituents of the state in which they currently live is, ultimately, for them to acquire nationality and confirm their bond with the state through a formal system. In fact, as the community of denizens passes through the second and third generations, the unnatural status of people called denizens cannot but become more apparent. The second and third generations in immigrant communities are born in their current country of residence, many receiving the same education, working in the same workplaces, and having economic interests in the society of their current country of residence; they are essentially no different from the majority population of nationals. That being so, the unnaturalness of their being put in a different legal status and living under different rights and duties due to their parents’ different nationality, a condition beyond their control, will inevitably come to light. When that happens, the state will have to consider whether to accord them citizenship, that is, naturalization.

As we have already seen, the principles of descent (jus sanguinis) and place of birth (jus soli) are the traditional methods by which states determine their membership. There is a strong tendency to regard the former as a pre-modern system that emphasizes the character of the state as a community of blood. Yet the adoption of jus sanguinis in many countries can be traced to the Napoleonic Code, which was compiled in response to the French Revolution, as we have already seen (in Chap. 3, Sect. 2). However, whether by birthright or by descent, nationality is accorded based on conditions at birth unrelated to one’s will, and in that sense, both systems can be said to be unreasonable from the standpoint of respecting the independence of personhood and free choice. In this respect, there is no difference between the two.

From the perspective of naturalization, however, there are significant differences between the two. With jus soli, immigrants in the second and successive generations automatically acquire the nationality of their country of residence. In contrast, with jus sanguinis, people inherit the nationality of their parents even if they immigrate or if national borders shift. That the US and other states founded by immigrants have adopted birthright-based nationality systems, inheriting the legal tradition of the UK, which had adopted the principle of jus soli rooted in feudal tradition, is a coincidence as well as a convenient system for assimilating continuous streams of new members as citizens.

On the other hand, that major continental European countries came to adopt jus sanguinis in the nineteenth century owed less to a deep attachment to bloodline or ethnicity and more to the fact that these states generally were sending emigrants to the New World during this period. Germany purified its jus sanguinis principle at the end of the nineteenth century and opted to exclude the Polish residents in its territory (see Chap. 3, Sect. 4). It should also be recalled that up until that time, Germany had been a migrant sending country. It is further conjectured that a background factor for Germany’s fundamental preservation of the descent-based Nationality Law of 1913 long after World War II was its awareness of the ethnic Germans who were left behind outside West Germany because of the postwar division of East and West Germany and the loss of eastern territories.14

In the 1980s, the Germany that Chancellor Helmut Kohl declared “is not a country of immigration” also stabilized its borders with the reunification of its East and West. Incorporating immigrants residing in the country then became a much higher priority and thus the nationality system was significantly revised. The nationality law was amended in 1999, after the end of the Cold War, allowing the German-born children of foreign residents to become German citizens, albeit with various conditions. The nationality law has been amended several times since, and jus soli elements have been strengthened.15 As a result, the major European countries can be said to have oriented themselves, by the start of the twenty-first century, toward granting citizenship to second-generation immigrants.16

3.2 Post-Cold War Baltic States

Of interest in this regard is the issue surrounding the handling of the legal status of ethnic Russian residents in the three Baltic states, which regained their independence with the end of the Cold War. Estonia, Latvia, and Lithuania have preserved their own cultural and ethnic identities, even as they were influenced by their larger neighbors: Russia, Germany, Sweden, Finland, and Poland. All three gained independence after World War I but were annexed by the Soviet Union in 1940 under the secret protocol of the Treaty of Nonaggression between Germany and the Soviet Union. The Soviet Union colonized them, so to speak, implementing a program of Sovietization/Russianization, so that when the three Baltic states regained their independence post-Cold War, many Russians who had immigrated during the Soviet era were living in each country.17 Approximately 1.7 illion Russians were living in the Baltic states, according to Russian census data in 1989, making up 30% of the total population in Estonia, 34% in Latvia, and 9.4% in Lithuania. And so their legal status became a major question.18 Since they were Russian, should they acquire Russian nationality and return (home) to Russia as part of the decolonization, as did the Japanese settlers who had moved to Manchuria and the Korean Peninsula, and the many white settlers who had lived in African countries?

In fact, a great many Russians experienced a change of nationality following the breakup of the Soviet Union. Between February 1992 and 1996, 1.5 million people applied for Russian nationality, and about 40,000 people renounced it. Of the people who newly acquired Russian nationality residing in Central Asian countries such as Azerbaijan and Kazakhstan, 80% of them emigrated to Russian territory; almost all of those in the Baltic states remained in those countries.

Were they legitimate members of the new states, like the descendants of white settlers in the Americas and Oceania? In 1993 and 1994, Russia asked the Commonwealth of Independent States (CIS) countries, which had gained independence from the former Soviet Union, to recognize dual citizenship with Russia. Not surprisingly, all of them rejected this, similar to when Asian and African countries achieved national independence after World War II.19

How were the Russians who remained in the Baltics treated by the states that had regained independence for the first time in half a century? Of the three, Lithuania, with the relatively smallest number of Russian residents as part of its population, most generously offered them nationality. Lithuanians were defined by the Law on Citizenship of 1989 as people who were citizens before Soviet annexation in 1940, as well as their descendants, so permanent residents, regardless of language or length of residence, could automatically acquire nationality provided they could show that at least one parent or grandparent was Lithuanian. Otherwise, they could still obtain citizenship if they swore an oath of allegiance to Lithuania to abide by its constitution and respect Lithuania’s sovereignty and territorial integrity. As a result, roughly 95% of the adult population held Lithuanian citizenship in 1994.20

In contrast, Latvia took the legal position that, as the country had been in a state of illegal occupation during the Soviet era, the nationals of the new state should be strictly limited to those who were citizens of the Republic of Latvia as of the 1940 Soviet annexation and their descendants. Accordingly, just about all the ethnic Russians who immigrated during the Soviet era were “foreigners” and had to acquire nationality through naturalization in order to become Latvian citizens.21 The 1994 Law of Citizenship basically adopted a jus sanguinis-based stance; it required that, at the time of applying for naturalization, a person had to have lived in the country for at least five years starting from 1990 and possess an income. Applicants were also tested on their proficiency in Latvian—which is very different from Russian—and knowledge of Latvia’s constitution and history. They were also required to take an oath of allegiance to the Republic of Latvia.

Similarly, in Estonia, a law on citizenship was enacted in February 1992, stipulating two or more years of residence and Estonian language proficiency among other requirements for naturalization. The law was amended in 1995, tightening naturalization requirements by, among other things, extending the residency requirement to five years, and adding questions regarding its constitution and citizenship law to the existing exam on the Estonian language in addition to a minimum income requirement. Finally, an oath of allegiance to Estonia was required.22

In response, European institutions such as the European Union (EU) and the Organization for Security and Co-operation in Europe (OSCE; Conference on Security and Co-operation in Europe until 1994) applied strong pressure on Latvia and Estonia, calling on them to respect the human rights of minorities within their states.23 Pressure from EU countries was very effective, for both states wanted to join the EU. A national referendum was held in Latvia in 1998 and the results led to an amendment of its citizenship law. Naturalization requirements were significantly eased, in particular, no longer requiring a Latvian language test from the children of non-citizens born in Latvia after the restoration of independence in 1991, effectively granting citizenship to second-generation immigrants.

Estonia, too, took some measures such as easing naturalization requirements and granting local suffrage to permanent resident aliens (i.e., Russian residents), so now there are even some who consider its naturalization system to be comparatively more open than that of EU countries.24

3.3 Naturalization Requirements

Even for the countries of continental Europe, which traditionally followed the principle of jus sanguinis, the integration of minorities residing within their states became a priority as their national borders became more stable and their security environment improved after the Cold War. Consequently, their systems have converged, with state membership eligibility for second-generation immigrants being based on place of birth, and for first-generation immigrants based on long-term residence (jus domicilii). The EU has played a role in promoting this kind of institutionalization and improved institutional coherence to promote the liberalization of the movement of people within the area and not merely for normative reasons.25

It is also true, however, that naturalization is not granted unconditionally, even to immigrants who have settled permanently. Naturalization requirements vary from country to country, but it is common for many liberal countries to impose the following requirements.26 The first is one we have already seen: the residency requirement, which requires that a person has lived in the country for a certain period of time. Many countries require around five years of residency, but that varies at the state’s discretion. As shown in Table 3, even among Western European countries, the time period ranges from a minimum of three years (Belgium) to a maximum of 12 years (Switzerland), which can also change depending on each state’s policies. For example, Germany maintained a 15-year residency requirement prior to 1999, at which time the law was amended to shorten the duration to eight years. What the term residency means is something that each state determines. For example, in the case of Eastern European countries, only the time after obtaining permanent residence counts toward residency, so actually it means that a longer period of residency is required for naturalization.

Table 3 Residency requirements for ordinary naturalization

The second is the livelihood requirement, which shows that a person can be financially self-supporting. The more generous a state’s welfare policy is, the more essential it becomes to be careful not to be exploited by welfare tourism, the term used to refer to the movement of people who try to take advantage of more generous welfare systems. The third requirement is the issue of the person’s good behavior. Criminal history, tax records, and similar materials are generally used to concretely judge behavior. Even a liberal state would not venture to offer membership to persons who might act in a way that threatens its own security, or who clearly espouse an ideology that poses such a risk.27

3.4 What Are the Core Values of a State?

To respect its members’ inner freedom and to be value-neutral are principles of a liberal state. Even from among such countries, a growing number of them undertake a sort screening for allegiance to some of their core values, as well as having a citizenship test that tests for language ability and knowledge of their history, culture, and constitutional system (Figs. 1 and 2).

Fig. 1

Source Wallace Goodman, Sara. 2010. Naturalisation Policies in Europe: Exploring Patterns of Inclusion and Exclusion. EUDO Citizenship Observatory, 2010/07, Comparative Reports, 16

Changes in language requirements for ordinary naturalization.

Fig. 2

Changes in country knowledge requirements for ordinary naturalization. Source Wallace Goodman, Sara. 2010. Naturalisation Policies in Europe: Exploring Patterns of Inclusion and Exclusion. EUDO Citizenship Observatory, 2010/07, Comparative Reports, 17

How each state perceives its own core values is an interesting question. No matter how rational and universal a state may be, inasmuch as the world is made up of independent states, we are left to believe that there must be something that distinguishes one state from the others, something that the state must protect. In formulating these core values, even liberal states that are not supposed to intrude into the inner world of the individual are forced to make its new members cognizant of the national identity and demand their allegiance to these values.

In the case of France, the issue becomes allegiance to valeurs républicaines (republican values). In materials targeting those interested in becoming citizens, in addition to democracy and “Liberty, Equality, and Fraternity”—the motto of the French Revolution—the emphasis on secularism (laïcité), which demands a strict separation of church and state, is notable. It also touches on the duties of French citizens to contribute to the national defense as well as to pay taxes, making clear that “In the event of war, all citizens may be called up to the army to participate in the country’s defense.”28

In the case of the UK, along with British values and the responsibility of British people to respect the law and act fairly, the citizenship test material lists “look after yourself and your family,” “look after the area in which you live and the environment,” “treat everyone equally regardless of gender, race, religion, age, disability, class, or sexual orientation” and to “work for yourself and your family.”29

In the case of Canada, which has perhaps the most open immigration policy in the world today, the Oath of Citizenship still requires a declaration of allegiance to the reigning monarch of England in addition to observing its constitution and laws.30 Furthermore, according to the official study guide for the citizenship test that the country administers to naturalization applicants, Canadian citizens are responsible for obeying the law, serving on a jury, supporting their family, and protecting the environment; it goes on to state the following about the defense of Canada:

There is no compulsory military service in Canada. However, serving in the regular Canadian Forces … is a noble way to contribute to Canada and an excellent career choice… . You can serve in your local part-time navy, militia and air reserves and gain valuable experience, skills and contacts. Young people can learn discipline, responsibility and skills by getting involved in the cadets… .

You may also serve in the Coast Guard or emergency services in your community such as a police force or fire department. By helping to protect your community, you follow in the footsteps of Canadians before you who made sacrifices in the service of our country.31

In major Western countries after the Cold War, compulsory military service was abolished, the economy has become marketized, and the redistribution function of the state has been reduced. But if a state seeks to govern effectively, it must secure material resources from its members as well as gain their loyalty.32 As long as this is the case, it is not possible to dodge the questions of who can become a member, what the state expects from its members, and what the state guarantees its members. In order to provide threat protection, ensure economic and social stability, and carry out mutual aid and income redistribution functions for its members, the state must strengthen its capacity to mobilize its members materially and spiritually, grant them the rights that come with membership, as well as ask for members to share sacrifices and risks. When the time for that comes, the ultimate question will be who will share the risks of protecting the state and how. The dramatic improvement in the post-Cold War security environment saw the countries of Europe change their systems for nationality and naturalization in a more open direction. However, in the twenty-first century, with the frequent occurrence of terrorist attacks by Islamic extremists, these states have tightened their naturalization requirements to varying degrees and more of them have instituted citizenship tests. This speaks to the growing importance of the aforesaid ultimate question.33

3.5 Dual Nationality

It is known that many immigrants have actually chosen to remain in denizen status, notwithstanding the easing of requirements so as to encourage naturalization. It might be because as denizen status becomes more satisfying, the desire to participate in politics becomes less pressing. Yet at the same time, the hesitancy denizens feel about severing the bond with their country of origin as a result of naturalizing is not unusual. This is especially true for first-generation immigrants. It may also be related to the degree of progress of a denizen’s integration into society.

To boost the naturalization rate, a movement to promote naturalization by allowing dual nationality has spread over the past few decades, mainly in European countries (Fig. 3). As we have seen, nationality systems are determined at each state’s discretion; an international mechanism to coordinate among these systems, much less one unified system, does not exist. Therefore, it does happen that there are people with multiple nationalities or, conversely, people with no nationality.

Fig. 3

Percentage of countries that allow dual citizenship, by region and global average.

It has traditionally been considered undesirable to hold multiple nationalities/citizenships. Internationally, the “Convention on Certain Questions Concerning the Conflict of Nationality Laws” was adopted at the League of Nations Codification Conference held in 1930, and after World War II, the “Convention on the Reduction of Cases of Dual Nationality and the Obligation of Military Service in Cases of Dual Nationality” was adopted by the Council of Europe in 1963. These conventions basically took the position of preventing dual nationality to the greatest possible extent.34 The grounds for the argument against dual nationality is that immigrants who become new citizens should demonstrate allegiance to the state in which they become naturalized. There was also a wariness that a dual national might be forced into a relationship of incompatible loyalties between their country of origin and the country of naturalization. A severe conflict between the two countries, even one falling short of the extreme situation of war, would put dual nationals in a sort of test of loyalty, having to decide which state to prioritize their relationship with. Furthermore, the political participation of citizens under democratic principles demands that citizens equally share in the results of their political choices, but it is possible that this mechanism does not work for dual nationals. In other words, for a dual national taking part in public decision-making in one country to have the option, if dissatisfied with the outcomes, of fleeing to the other country violates democratic equality represented by the principle of “one person, one vote.”35

Here, I would like to remind the reader that dual nationality means overlapping personal jurisdiction, a potential source of interstate conflict. This issue of multiple nationalities was the backdrop against which the War of 1812 was fought between the UK and the US, and the very issue that the US sought to resolve by concluding the Bancroft Treaties after the Civil War, as we saw in the previous chapter.

3.6 Rise in Countries Allowing Dual Nationality

It is an unmistakable fact that an increasing number of countries allow dual nationality despite the traditional argument against it. In the US, which had dealt with this issue in the nineteenth century through the Bancroft Treaties, it became permissible as a result of a 1952 US Supreme Court ruling that dual nationality is “a status long recognized in the law” and that “a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both.”36 Hence, although not actively supportive of this change, the US government did accept it, and many of the Bancroft Treaties, now unenforceable, were abrogated during the Jimmy Carter administration. The current US government has taken a nuanced position: while acknowledging the legality of dual nationals, it does not, as a policy, encourage dual nationality owing to various predictable issues.37

As possible reasons for this trend, we can point to the growing influence of the norm that possessing nationality constitutes a part of human rights and the growing emphasis on women’s rights. Based on the premise that a child ought to be able to inherit the nationality of both parents because forcing the child to choose either the father’s or the mother’s nationality is improper, then the argument is persuasive that it is natural for a child to inherit both if the parents’ nationalities differ.

Furthermore, as I shall discuss in the next chapter, conditions have become more supportive of dual nationality with the stronger push among emigrant-sending countries to maintain relationships with their own nationals who emigrate. In light of this development, emigrant-sending countries find themselves having to allow dual nationality for immigrants entering their countries. For example, southern European countries, traditionally a source of migrants to the industrialized countries of northern Europe, as EU members have become recipients of immigrants from Africa and the Middle East in the twenty-first century. It is therefore difficult for a country of emigrants to take the position of allowing dual nationality for its nationals who leave the country, while at the same time denying it to immigrants entering the country.

But most of all, operating a system strictly allowing for only one nationality may be difficult in today’s world, where each state controls its own nationality separately in its own system, as throngs of people cross borders to build lives in their new places of residence. A child of immigrants coming from a country with descent-based nationality laws who is born in a country with a birthright-based nationality law has dual nationality, regardless of the child’s (or the parents’) wishes. Conversely, a child born to parents from a birthright-based country in a descent-based country may be stateless. Dual nationality, which used to occur in a handful of exceptional cases, has become nigh impossible to eliminate, given that resident registration and birth certificate systems vary from country to country, and such systems do not function effectively in many countries.

It should also be recalled that behind this trend is the emergence of an international environment that facilitates the holding of multiple memberships. Integration among EU countries post-Cold War has deepened to the point where geopolitical competition between member states has become unthinkable, and a cross-jurisdictional membership, a so-called EU citizen, has gained ground. It has also developed as a supra-national system uniting different nationalities. The EU has come to hold real meaning, although it cannot yet be said that a European identity that transcends “German” or “French” has replaced the existing national identities. Western European countries in succession did away with military conscription after the Cold War, and with it has receded the real possibility of their members being tested with the ultimate question of belonging (i.e., risking one’s life to defend the state). Moreover, even should an issue of overlapping personal jurisdiction arise, so long as it happens between established liberal democratic countries without a territorial dispute between them, it can be resolved within a common legal framework.

Yet that the three Baltic states, which also belong to the EU, are cautious about dual nationality is indicative. Article 12 of Lithuania’s constitution stipulates that dual citizenship is prohibited with the exception of individual cases provided for by law. Dual nationality is prohibited in Estonia in principle, but it is tacitly allowed in practice. Its constitution states that no person who acquired Estonian citizenship by birth can be deprived of it; only naturalized citizens, by holding another nationality, can be deprived of Estonian citizenship. Latvia, which allows dual citizenship under its 2013 Citizenship Law, has an interesting system that limits the countries with which persons may hold another citizenship, including countries of the EU, North Atlantic Treaty Organization (NATO), and others with which Latvia has concluded special treaties. What is clear is that the Baltic states are extremely guarded toward dual nationality with Russia. The obvious reason appears to be the sense of geopolitical wariness and political discomfort that they feel toward Russia.