The grey area between nationality and citizenship: an analysis of external citizenship policies in Latin America and the Caribbean

Abstract

Literature on diaspora engagement policies, transnational and extra-territorial citizenship has painted the increasing recognition of dual nationality and the extension of state policies to the diaspora as a signal of states leaving behind the paradigms of exclusive nationality and residence as conditions to exercise citizenship. In doing this, this literature tends to treat citizenship and nationality as synonyms. By analysing the citizenship policies of 22 Latin American and Caribbean states towards their nationals who reside abroad and/or acquire another nationality, we add key nuances to such consideration: nationality and citizenship may relate to different legal statuses – with important consequences for migrants – and there might be differences also between the citizen rights of nationals by origin and of nationals by naturalization. In particular, we show that citizenship and nationality interact in different ways when it comes to the preservation of rights for emigrants: the distinctions allow restricting the portability of citizenship rights for nationals by birth, and other groups of nationals, depending on the exclusivity, and origin, of their national belonging. These distinctions tell a potentially different story of how citizenship is conceived of by states as they approach the challenges of membership and participation posed by emigration, and paint a less rosy picture with regard to the demise of exclusive nationality.

Keywords:

• Citizenship
• discrimination
• mobility
• rights
• status
• nationality

Notes

1. We understand nationality as the legal relation of membership between an individual and a nation state; source of (traditionally exclusive) rights/obligations between the two (i.e. not human rights which are enjoyed irrespective of nationality); usually only acquired by birth or by naturalization; and attestable through birth certificates or travel documents (passport). We understand citizenship as the entitlement (the condition of having a right) to exercise formal civic rights and duties within a political community.

2. In his study of nationality laws in the Western Hemisphere, Vonk uses the terms interchangeably, arguing that his focus is the English-speaking world, for which the differentiation is superfluous, and that he follows empirical indicators developed by the EUDO Citizenship Observatory. While we understand these reasons, it is key to note that this distinction is consequential for migrants and other groups who are seemingly trapped in in-between categories, such as the naturalized).

3. See Gosewinkel (2001) for relation between nationality and citizenship in the USA.

4. The other six do not: Trinidad and Tobago, Jamaica, Belize, Brazil, Ecuador and Cuba.

5. Also taking into account a regional and even transnational (multifocal) reading of citizenship historical developments in Latin America, Sznajder and Roniger (2009) have shown how this tension crystallized in exile, a situation which deprived those beyond the borders of their political rights, but not of voice, as it was precisely in exile that many displaced nationals invented the ‘collective soul’ of the nation. Similarly, thinking about both exile and the politics of transnational migration, Hoffmann (2010) suggests that the Hirschmanian categories of exit, voice and loyalty are not mutually exclusive, but may be simultaneous and overlapping.

6. The contrast that we are able to make with Caribbean countries, well immerse in the geography, yet part other colonial legal traditions, supports this interpretation.

7. We are aware that a meaningful understanding of the actual range of rights that can be exercised abroad (i.e. their portability) requires considering electoral rights, but we see this as a second step, which must be preceded by a proper understanding of the distinctions made between citizenship and nationality as an enabling condition to exercise citizen rights (see Palop-García and Pedroza 2016).

8. The Dominican Constitutional Court ruled in 2013 that children born in the Dominic Republic to undocumented residents ought not to be considered Dominican nationals. It is estimated that this ruling affected more than 250,000 Dominicans (Gamboa and Harrington 2014). This, however, is not related directly to our object of study since that denial of nationality did not derive from the adoption of another foreign nationality, but from the administrative situation of the parents of Dominican born persons with Haitian ancestry.

9. In 2011, the conditions enrol in the civil registry and prove residence (as to acquire legal citizenship) were facilitated by Law 18.858 and in 2016 Law 19.362 made it possible for Uruguayans abroad to pass on nationality to a third generation. However, citizenship is still only acquired if they establish residence in Uruguay.

10. Honourable Cámara de Diputados de la Nación, Ley N° 346 – Ciudadanía Y Naturalización, 2004, Art. 8.

11. Dirección Nacional de Migraciones, Resolución No 2.650, Anexo II, 1c.

12. Interestingly, contemporary Spain makes no differentiation between citizenship and nationality, yet it has a dormant nationality clause in its treaties of with Latin American states – e.g. Convenio de Nacionalidad entre España y Colombia 1980; Convenio sobre Doble Nacionalidad entre España y Perú 1960.

13. It might strike some readers that Uruguayan and Argentine emigrants who are non-residents in the former case, and dual nationals in the second, still exercise their right to vote. This is, however, the result of incoherence between legal regulations (which is what we studied and coded) and (lack of) implementation likely due to the complication of the procedure to enforce them. For Argentina such procedure is explained in the Decreto sobre ciudadanía y naturalización 3.213/1984, Arts. 15–17.

14. Both components have the same weight (50%). The final indicator ranges from 0 to 1, being 0 the more restrictive regulation and 1 the more inclusive.