This paper presentation on 'Economic Citizenship and International Nationality Law: Individual Equality, Domestic Citizenship and Democratic Legitimacy' is part of the Law and Justice Across Borders seminar series.
The process of commodification of democratic citizenship through the current proliferation of “economic citizenship” (EC) or “citizenship by investment” programmes, i.e. the various state-led programmes that offer the acquisition of domestic citizenship through financial contribution, needs to be addressed urgently, and, so the chapter argues, through stronger democracy-oriented interpretations of international nationality law (INL). Unlike other arguments against EC advanced in political theory, the present chapter argues from within the legal practice itself: it proposes its normative critique as the best interpretation of citizenship or nationality law. In contrast to other existing legal critiques of EC, however, it does not focus on domestic or European Union law, but on international law: it develops a new interpretation of INL that excludes granting nationality on monetary grounds only. In short, the chapter argues that contemporary INL is best interpreted in the light of international democracy law (IDL), and the customary international law principle of individual equality, as a form of international pre-commitment of democratic citizenship. What this means is that the factual conditions for the justification of democracy need to be protected not only under IDL, but also under INL. In turn, this implies that the conditions of naturalization encompass the sharing of equal and interdependent stakes, both negatively so as not to include those who do not share such stakes, but also positively so as to include those who do. The matching of those conditions under IDL and INL explains in turn how the genuine-connection test in Nottebohm is best interpreted, under contemporary circumstances, as a test for the sharing of equal and interdependent stakes. The consequence, the chapter argues, is the lack of validity and opposability of EC under INL.
Samantha Besson is Professor of Public International Law and European Law at the University of Fribourg (Switzerland). Her research interests lie in the interface of public international law, EU public law and political and legal theory, and in particular in international human rights law and theory and in international institutional law and theory. She is currently completing a monograph entitled The Making of Equality. A Legal Theory of Human Rights. Her publications in English include among others: The Morality of Conflict. Reasonable Disagreement and the Law (Hart Publishing: Oxford 2005); Deliberative Democracy and its Discontents (Ashgate: Aldershot, 2006) co-edited with José Luis Martí; Legal Republicanism: National and International Perspectives (Oxford University Press: Oxford 2009) co-edited with José Luis Martí; The Philosophy of International Law (Oxford University Press: Oxford, 2010) co-edited with John Tasioulas; and The Oxford Handbook on the Sources of International Law (Oxford University Press: Oxford, 2017) co-edited with Jean d’Aspremont.
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