**This piece was written as a piece of coursework for my LLM in Human Rights Law at Queen's University Belfast**
This essay will be exploring the statement that citizenship on the basis of birthright is morally arbitrary and therefore unjust. A person’s place of birth is morally arbitrary as it cannot be chosen by the person being born, yet in many countries, citizenship is given on the basis of birth in a particular country (jus soli). Citizenship is a requirement to access many basic human rights such as the right to vote or access to social services (Council of Europe, n.d.), and therefore shouldn’t be based upon something that is morally arbitrary. In modern-day circumstances, those who don't have citizenship don't have the same rights and protections as those who are citizens. This exclusionary aspect on the basis of something that is morally arbitrary is unjust, and thus birthright citizenship as a structure is unjust. Citizenship therefore must be adapted if it is to become a fair process and morally just.
This essay will be exploring whether or not birthright citizenship is morally arbitrary, the different types of citizenship to analyse the justness of citizenship in general and the requirements of citizenship that must be fulfilled in order for citizenship to be morally just.
A citizen is defined as a “member of a political community who enjoys the rights and assumes the duties of membership” (Leydet, 2017). In an ever globalising world with enhanced migration, citizenship has become exclusionary acting as a segregator between qualified citizens and residential “aliens” (Kabeer, 2002). Citizenship, specifically the right to a nationality, is a human right. Article 15 of the Universal Declaration of Human Rights (UDHR) states that every human has the right to citizenship and to not to be deprived of nationality (UDHR, 1948).
Citizenship allows governments to operate functionally, to clarify who in their jurisdiction they are responsible for, and to calculate their social provisions based upon this. Countries draw state borders and claim sovereignty, and by doing so in return they are required to provide for their citizens as outlined by the Social Contract Theory, theorized by Thomas Hobbes, which describes the relationship between a state and their jurisdiction where citizens relinquish power in order to maintain a society of peace and order overseen by a ruler, either a monarch or government (Hobbes, 1969). Hobbes theorized that all citizens must obey the state, even if tyrannous, as the maintenance of peace and order is paramount. He theorized that without government, people would live in the “state of nature”, which he saw as violent and chaotic, and thus sacrificing freedoms to be governed is a valid exchange (Hobbes, 1969). This explains why the state, specifically a government and its citizens, is necessary for a functioning society and what gives the state power. Due to this power, Hobbes suggests that states have no responsibility to guarantee human rights or social provisions, but citizens have an obligation to obey the state regardless (Hobbes, 1969). Therefore if citizens stopped consenting to be ruled they wouldn’t be justified to overthrow the state.
John Locke similarly theorized a “state of nature”, however, his conception of this state is one that is much more civilised where all people have natural and inalienable human rights (Locke, 1689). Similar to Hobbes, he theorized that people willingly consented to be ruled to maintain order, yet in contrast with Hobbes, Locke sees this consent as revokable if the state fails to meet the expectations of the citizens i.e. provisions of social services, protection and to be non-tyrannous (Locke, 1689). Therefore, Locke sees citizenship as more of a consensual contract that exchanges freedom for security. This forms the basis of a democratic state, where the power still remains with the people and leaders can be easily overthrown through revolutions or through voting. This also sets the basis for what components define citizenship i.e. ability to vote and participate democratically in exchange for abiding by state legislation and social order. Connecting citizenship with participation in society creates a functioning social order. Citizenship can be thus considered a social construct based upon the social contract theory.
Both the theories of Locke and of Hobbes can be described as Contractarianism, the philosophical thinking that society operates upon an implicit mutual agreement between the state and the individuals within the jurisdiction that explains how a state gains power and why the individuals' consent to being governed (Lee, 2011). The moral theory of contractarianism follows this logic but clarifies that the reasoning for obedience with the governance is not of self-interest but due to a moral commitment to the maintenance of a certain standard of society (Cudd & Eftekhari, 2018).
There are other theories explaining the premise of political engagement and obedience such as the thinking of Ardent and Aristotle which expand this logic. Aristotle believed that citizenship was based upon civic duties and active participation in society to contribute to the common good (Mulgan, 1990). He clarified that not only does the state have duties in provisions, but citizens have certain civic responsibilities too such as abiding by the law, paying taxes, and participating in democracy through voting (Mulgan, 1990). Using Aristotle’s logic, any person who actively contributes to society and engages civically should be considered a citizen and thus gain access to the benefits and rights attributed to citizens. Similarly, Ardent sees citizenship not as a social construct but as a necessary medium to accessing human rights (DeGooyer et al., 2018). She critiques the claim that human rights are universal and alienable, meaning that in theory they apply to all human beings and therefore all human beings have a right to them regardless of citizenship (UDHR, 1948), yet the provision of human rights through the state creates problematic segregation between citizens and non-citizens, as barriers to access social services are enacted such as preventing the ability to vote and access to public health and education services (Council of Europe, n.d.). Therefore, without citizenship, membership within a state, a person cannot access their rights. The existence of refugees, asylum seekers and stateless people who struggle to access their human rights exemplifies this (Hirsch & Bell, 2017). Ardent coins this as “the right to have rights” (Arendt, 2017) and suggests that while state sovereignty exists human rights cannot be universal or inalienable. This paradox sets the precedent for the exploration of the different forms of citizenship and how they affect access to human rights.
Citizenship can be achieved in different ways depending on the legislation of the country. To explore the moral arbitrariness of birthright citizenship versus citizenship in general, other forms of citizenship must be explored, specifically, jus soli (birthright citizenship); jus sanguinis (heritage citizenship); and jus nexi (naturalisation).
Jus soli (Birthright Citizenship)
Jus soli aka birthright citizenship, is the law that citizenship is based upon the place of birth, for example, those who are born in the United States are US citizens regardless of their parents' nationality (Friedman, 2018). Birthright citizenship prevents statelessness and simplifies a states understanding of those in their jurisdiction (Leydet, 2017). Due to the morally arbitrary nature of birth, i.e. the fact that a person cannot control where they are born, birthright citizenship can be considered unjust as it creates inequities, and cannot be consented to.
Due to the social inequality present in the modern world, birthright citizenship discriminates against those who are not born to strong citizenship i.e. those born in Sweden have a very different life experience to those born in Gaza due to their disparities in the countries’ wealth (Numbeo, 2021). Furthermore, because citizenships are directly tied to mobility and have become restrictive i.e. those born in Gaza couldn’t easily move to Sweden to access the benefits of Swedish citizens due to citizenship and immigration restrictions (Human Rights Watch, 2021), this restrictive nature and the morally arbitrary aspect of birth further exacerbate the inequities making birthright citizenship unjust. This philosophical thinking aligns with the thinking of John Rawls. Rawls describes poverty through a thought experiment “the original position” (Rawls, 1999) explaining that if we were to be born into the world not knowing what kind of race, gender and socioeconomic characteristics we would be attributed, what kind of bare minimum requirements would be requested i.e. free healthcare, no racism or discrimination, etc (Rawls, 1999). This thought experiment can help decipher the core human rights and provisions that must be accessible for all human beings regardless of race, gender or class. Citizenship arguably should incorporate this through not being a requirement to access those rights. This is true, to an extent, through the provision of the UDHR which outlines the human rights that are universal and inherent to all human beings despite citizenship or nationality (United Nations, 1948). However, many of these rights are implemented through the state making accessibility the issue and citizenship becomes a segregator.
Birthright citizenship is heavily related to the theory of moral luck by Thomas Nagel, specifically that of circumstantial luck. Circumstantial luck describes the advantage, or lack thereof, that comes from being in a certain unplanned condition and describes how this unplanned condition affects a person’s actions (Andre, 1983), for example being born in a wealthy liberal country is a positive form of circumstantial luck as it is morally arbitrary and has an effect on the rest of the person’s actions and abilities. According to Nagel, morality is only connected with intention, i.e. the actions we take we are responsible for, but circumstantial occurrences that were unintentional hold no moral responsibility (Nagel, 2012). Birth is something that cannot be controlled by the person born and therefore citizenship from jus soli can be considered a type of circumstantial luck. In line with Nagel’s logic, this means that birthright citizenship is morally arbitrary but not unjust, as the person born has no moral responsibility since the action of being born is a form of circumstance luck i.e. unintentional and uncontrollable.
In recent years, many countries in the Global North have been abolishing birthright citizenship in favour of jus sanguinis (citizenship through heritage) due to an increase in “birth tourism” and “chain migration” (McHugh, 2010). Birth tourism is the practice of moving to a country to give birth so that the child becomes a citizen and chain migration is gaining citizens due to familial relations with a current citizen i.e. the newly born child (McHugh, 2010). Many countries see birth tourism as a strain on their resources and thus act to prevent it (Friedman, 2018). Birth tourism is an intentional act and therefore one could argue that birthright citizenship is not morally arbitrary due to its intentional nature. If it is not morally arbitrary then using the same logic is not unjust. However, the banning of jus soli on the basis of birth tourism instead becomes an unjust act as it is a preventative of the act of those less fortunate accessing their basic rights by migrating, and therefore still exclusionary in nature. This relates to Nagel’s intentionality, where the act of using citizenship in an exclusionary way to ban people from accessing basic rights in a country is an unjust act.
This also brings up the question of consent. A person’s parents may decide where their child is born, but the child themselves does not get to consent to whatever citizenship they receive. This can be valid reasoning for immorality on the basis of lack of consent. Birthright citizenship doesn’t accurately reflect a person’s tie to a country as many people are born in one country but moves at a young age so never actually reside there, while others may have moved to a country at a very young age and live there their entire lives yet not have citizenship as they were not born there (Leydet, 2017). Therefore, birthright citizenship doesn’t achieve the aim of clarifying which people relate to a particular jurisdiction. Without fulfilling its aim, while propagating inequity, it becomes morally unjust based upon the logic proposed by Rawls.
The premise of consent relates to contractarianism. Citizens who claim citizenship from birth (jus soli) find themselves in the social contract with the state without ever explicitly consenting to it, yet migrants who claim citizens through naturalisation (jus nexi) explicitly consent to the social contract of the country, usually through the naturalisation process, in exchange for citizenship (Cudd & Eftekhari, 2018). Both types of citizens must commit to following the laws and contributing to society, yet only one type has consented to it. According to Locke, a contract can only be valid if those participating within it are free and not forced (Locke, 1689). Citizenship from birth is not chosen or consented to by the person, so arguably this is a form of force, meaning that the social contract between natural-born citizens and the state is invalid due to a lack of consent. Hobbes argues that participation within society and the use of social services implies consent (Hobbes, 1969). He implies that by benefitting the opportunities that come from citizenship i.e. neighbourhood cleaning, public safety, road maintenance, etc, citizens are thus obliged to give back to that society through paying taxes, civic participation, abiding by the law, etc (Hobbes, 1969). This is an implied contract from citizenship, therefore, depending on the outlook of consent, the social contract is either binding or void. If consent is implied then the contract is binding and birthright citizenship can be considered morally just, if void then birthright is deemed morally arbitrary and therefore unjust.
Jus sanguinis (Heritage Citizenship)
Jus sanguinis aka heritage citizenship is the law that citizenship is based upon legacy & ancestry, where a child inherits the citizenship of their parents. This is the most common type of citizenship (McHugh, 2010). Heritage citizenship keeps families tied together on the basis of citizenship, but is exclusionary towards immigrants as the citizenship is not tied to the land (Leydet, 2017). This can cause identity issues and legal issues tied to citizenship i.e. not being able to be involved in accessing basic rights (such as voting rights) in the country where you reside or have a tie to a country you have no lived experiences in. This relates to the issues of connecting citizenship with legal access to rights as prophesized by Ardent, as access to rights is on the basis of citizenship within a political community rather than on the basis of humanity as suggested in the UDHR (UDHR, 1948). Citizenship, therefore, is not only a requirement for accessing political rights, but also civic and social rights (Degooyer & Hunt, 2018), and heritage citizenship excludes migrants from accessing these rights, making it unjust.
Jus nexi (Naturalisation Citizenship)
Jus nexi is the citizenship based upon citizens having a “real and effective link” (Shachar, 2009) to the land and the society, which for example can be displayed through permanent residence (Bauböck, 2008). This is known as the “stakeholder principle” (Shachar, 2009) describing the connection to a particular place as the dominant reason for citizenship. It aims to define the true citizens as those who are actively involved in the society, whose lives are dependent upon and affected by the countries laws, and those who share the societal norms of the country (Shachar, 2009). This connection to the land and society relates strongly to Aristotle’s vision of citizenship through active civic engagement.
Naturalisation is a way of illustrating commitment to a country, through gaining citizenship after living in a country for a certain length of time (Cambridge English Dictionary, n.d.). Numerous countries have a naturalisation process but the length of time and other requirements differs per country (McHugh, 2010). Migrants explicitly consent and intend to become citizens through naturalisation. The naturalisation tests supposedly outline questions that must be known to fit in society, yet many non-naturalised citizens (jus soli and jus sanguinis citizens) don’t know the answers to these questions as outlined in a recent survey where two-thirds of jus soli and jus sanguinis US citizens could not pass the naturalisation tests that migrants must take to become citizens (Lardieri, 2018). If a citizen must know the norms and laws of society outlined in the naturalisation exams then this would suggest that many non-naturalised citizens wouldn’t qualify as citizens. This creates segregation and suggests an unjustness of jus soli and jus sanguinis as a form of gaining citizenship, illuminating the question of the obligations of the citizen, and the justness of who gets to be one.
Jus nexi also relates to Arendt’s concept of political participation through her explanation that access to citizenship must be guaranteed if rights are to be universal (Arendt, 2017). Citizenship prevents statelessness and in theory allows for every person to access their basic rights through the provisions provided by the governing institution (Schuck & Smith, 2018), however, due to the ever globalising world, citizenship, migration and borders have become more complex and the tie between citizenship and access to basic rights has become problematic due to its current exclusionary nature. In order for citizenship to be considered just, it must not be exclusionary to the point that people are unable to access resources to fulfil their human rights. If human rights are provided through the state, then the state has a responsibility to fulfil the human rights of all within its jurisdiction. This has some logistical problems such as illegal immigration and to consider, yet from a purely moral standpoint, if citizenship is to be the continued means of accessing human rights then it must be provided to all within the jurisdiction on the basis that human rights are universal and inherent.
To conclude, this essay has explored the moral arbitrariness of birthright citizenship, and moral validity of citizenship as a whole based on contractarianism, and the thinking of Rawls, Hobbes, Locke, Aristotle and Ardent. In summary, the place of birth of a person is morally arbitrary and thus shouldn’t be the determining factor of access to citizenship. Additionally, the current model of citizenship is inherently problematic specifically due to the exclusionary nature on the basis of the moral arbitrariness of citizenship, and the complex and bureaucratic process of pursuing citizenship through naturalisation. If citizenship is the way to access human rights services then it must be inclusive for it to be morally just.
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