Investment Citizenship and Democracy in a Global Age. Towards a Democratic Interpretation of International Nationality Law
Fribourg International Law Research Papers 01/2019
20 Pages Posted: 20 Jun 2019
Date Written: June 12, 2019
The process of commodification of democratic citizenship through the current proliferation of “investment citizenship” (IC) programs, i.e. the various state-led programs that offer the acquisition of domestic citizenship through financial contribution only, needs to be addressed urgently, and, so the chapter argues, through stronger democracy-oriented interpretations of international nationality law (INL). Unlike other arguments against IC advanced in political theory, the present chapter argues from within the legal practice itself: it proposes its normative critique as the best interpretation of nationality law. In contrast to other existing legal critiques of IC, 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 the international principle of democracy (the IPD), 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 the IPD, but also under INL. In turn, this implies that the conditions of naturalization encompass the sharing of equal and interdependent stakes, both positively so as to include those who share such stakes and negatively so as not to include those who do not. The matching of those conditions under the IPD 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 not only the lack of opposability, but also of validity of IC under INL.
Keywords: democratic theory; international nationality law; domestic citizenship; Nottebohm case; genuine-connection test; international principle of democracy; conditions for the justification of democratic citizenship; sharing of equal and interdependent stakes
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