Reconsidering the concept of citizenship

SUMMARY

I. INTRODUCTION

A. Preface

Citizenship is the embodiment of the strongest link between the individual and the State, a link which is reflected by the fact that the citizen is

Examination of citizenship on the threshold of the twenty-first century brings us face to face with a reality permeated by a multitude of contradictions and vagaries. On the one hand, the fall of the former Soviet Union has led to the birth of States founded on ethnic-- nationalist organization, associated with which is the issue to what extent an ethnic population may legitimately be split to justify separate political organization, a problem which can be seen in all its severity in the former Yugoslavia. On the other hand, opposing the processes of ethnicity and division are broad world trends of globalization which are sweeping away the borders between the various States and cultures and which are transforming the world into a single global village, in which many issues are regulated by international bodies that are either multinational or supranational.

Notwithstanding that these processes raise the issue whether the State has stopped functioning as the basic core of political organization and therefore of citizenship-which embodies the connection between the person and the political organization in which he lives, a question which must perhaps be examined in connection with a framework other than that of the State-the prevailing view among scholars is that the State does continue to comprise the basic core of political organization.2 Accordingly, the starting point of this article, which examines citizenship, will be the connection between the individual and the State. At the same time, within the context of ascertaining the nature of the connection and its substance, I shall of course have to give appropriate weight to world trends of ethnic grouping and globalization and show how and to what extent they influence citizenship.

Examination of the issue of citizenship from a prospective vantage point in the light of this conflicting reality of nationalist, ethnic insularity on the one hand, and universal, global opening-up on the other hand, is difficult and complex. However, this is not the only difficulty entailed in the examination of this issue. The primary difficulty ensues from the

fact that even a retroactive examination betrays uncertainty regarding the significance of nationality. Nationality, in practice, is the manifestation of the strongest connection between the person and the State; however, there are no clear international criteria for defining how this connection is created. There is no clear international law stating in which circumstances a State must confer nationality upon a person and when a person has the right to become a citizen. The uncertainty and lack of definition in international law ensue from the fact that international law has sanctified the principle of State sovereignty and nonintervention on the part of one State in the affairs of another. State sovereignty has primarily been reflected in the power of the State to determine who will be its permanent and preferred members, i.e., who will be its citizens. Indeed, every State has established its own rules regarding when, how, and upon whom nationality will be conferred.3

This development of international law, by which the State's duty to confer nationality is not defined, is, in my opinion, mistaken. It is unjustified in the sense that it disregards global justice. How States divide people into societies cannot be left to regulation by each individual State, as large numbers of people cannot be left to find themselves possessing dual or multiple nationalities, while others are deprived of nationality altogether. The issue must be regulated by a legal arrangement between States, i.e., by international law, in order that global justice be achieved and each person enjoy complete membership, i.e., citizenship, of at least one State.

As noted, the absence of a clear provision of international law in respect of when a State is required to grant nationality, leads to the situation where people may find themselves lacking nationality. Such a situation may deprive the entire concept of the protection of human rights of meaning, as, where a person is not a citizen of a State, the State is not obliged to enable him to continue living within its territory. Deporting a person from a State is a measure which a State may employ to avoid conferring upon him all the other rights to which he is entitled.

Thus, consideration of the concept of citizenship at the end of the twentieth century must, first and foremost, attempt to define, from a broad international perspective and with the aim of creating a binding international legal provision, what citizenship is and in what circumstances a duty lies upon a State to grant it to a person as an international human right. Professor Henkin succinctly put the importance of this task:

Leaving it to each state to determine how the concept of nationality will be applied is consistent with values of state autonomy but has led to unfortunate results .... It is time for international law to insist on the rationality and equity of state laws of citizenship and nationality and provide international protection for the human right to a nationality on rational terms .... Hence my plea that we eschew the mythology of state "sovereignty," break apart its presumed content, and retain only what is necessary and valuable.4

My goal in this article is to meet the call of Professor Henkin and attempt to formulate the international right to nationality despite its erosion within the classic perception of State sovereignty. I shall endeavor to define the components of nationality and the point at which a person becomes entitled to demand nationality from a State.

B. Mapping the Dilemma of Citizenship

As I have pointed out, as a matter of international law there is no duty upon a State to grant citizenship and therefore no rules have been developed which require the State do so. At the same time, in practice, States grant citizenship to individuals. An examination of the issue of citizenship must, initially, focus on the parameters which various countries take into account as the basis for their decision to grant citizenship and determine which of these parameters may suitably be transformed into international law which obliges States to grant citizenship.

I shall term this examination a "lateral examination" of citizenship, as it relates to the nature of the connection between persons, providing the basis for uniting them as citizens of the State.

The lateral connection which provides the basis for citizenship may be founded on a connection which originates in the past and which entails a shared history, language, and culture and, on occasion, even a common religion. These are the factors which create the nationalist-ethos, by virtue of which there is a basis for establishing a bond between people and uniting them as citizens of a State.

The lateral connection which provides the basis for citizenship may also be founded on a connection which is not dependent upon a common past, but rather on a common present and future. In other words, a society of people which lives in a State undertakes to live in accordance with governing principles set out in a social charter which they have created, a charter which is generally formulated as a constitution. The full affiliation of a person to a State is determined by his consent to live in the present and in the future in accordance with the principles which have been established in the constitution and not by virtue of a cultural link which was created in the past. The former is a link which is less nationalistic and to a certain extent more utilitarian.

We shall see in this article that these two links, that of the past and that of the present and the future, are legitimate links on the basis of which to grant citizenship. I shall point to the fact that the gap between these two approaches is not as great as might appear at first sight. Even when citizenship relies on a link to the past, it is not detached from utilitarian requirements of the present and the future, and when it relies on the present and the future, one may still find nationalist elements within it. Nevertheless, according to the thesis put

forward here, the existence of one of these links or even a combination of the two links, is not sufficient to provide the basis for compelling a State to grant citizenship.

The proposition which shall be developed in this article is that a nexus to the past or a nexus to the present and future provide a legitimate basis for conferring citizenship so long as States consent to grant citizenship to persons living within their territory. In my opinion, a State is obliged to grant citizenship to persons living within its territory for a significant and defined period of time, and a State is barred from granting citizenship where no residential link has been created to the place.

In such a situation, prima facie, a nexus to the past or a nexus to the present and future would be irrelevant, as the residential link would deprive these terms of meaning. In fact, this is not the case.

In my view, a nationalist nexus to the past or the more utilitarian nexus to the present and future are expressed in the earlier stage of immigration to the State. The laws of immigration are an important element in the issue of citizenship. Using the laws of immigration, a State may shape the character of its society of citizens and decide whether it prefers admittance for the purpose of settling and receiving citizenship of persons who are connected to each other through some nexus to the past or whether it prefers immigration on the utilitarian basis of nexus to the present and future. However, when people are located in the State and live a significant portion of their lives within its boundaries, they obtain the right to citizenship and the State is obliged to grant that citizenship to them.

Here I shall point out that a State is entitled to shape its immigration laws on the basis of a nexus to the past or a nexus to the present and future subject to the exception afforded by refugee laws. A State is obliged to enable people whose lives are at risk to enter its territory and reside there so long as the danger remains and no safe haven has been found for them.5

An extensive analysis of the issue of citizenship requires consideration of an additional factor which I shall term the "vertical aspect." This aspect is concerned with the relations between the person and the State which ensues from the status of citizenship. Here, one must examine which rights accrue to a citizen in his country of citizenship and what duties are imposed on him by reason of his citizenship. This examination reveals the factors which single out a citizen in relation to a State, as opposed to another person who is not a citizen.

An examination of rights and duties deriving from citizenship must be conducted on two levels: the international level and the domestic national level.

On the international level, a citizen is obliged to be loyal to his State, irrespective of where he happens to be in the world, and accordingly, by virtue of his citizenship, he is protected against violation of his basic rights by a foreign State.6

As a consequence of this relationship between the citizen and his State, it is also possible to understand the issue of the expansion of the criminal jurisdiction of the State beyond its territorial borders. The country of citizenship is entitled to compel its citizens to comply with its criminal law beyond the borders of the State and to bring those citizens to trial in the event that they breach those laws. In addition, the State is entitled to try persons who have committed offenses against its citizens outside the borders of the State.7

International law requires every State within the ambit of its domestic law to confer the majority of human rights on every person located within its borders, and not only on its own citizens.8 There are a few human rights which are conferred solely on citizens, and which are not conferred upon other persons located within the State who are not citizens. These rights are the political right to elect and to be elected,9 the right to hold high public office,10 and the right to enter a country and stay there.11

The duty of a national of a State focuses on the duty of loyalty, which is expressed by the duty of military service and the duty to maintain the rule of law in the State. It should be pointed out that the duty to maintain the rule of law is imposed on every person located in the State and is not confined to the citizens of the State.

An additional right which is conferred on citizens only is found on the borderline between the internal and international levels. Reference here is to the right of citizens not to be exposed to extradition proceedings. This right exists primarily in countries applying the continental system of law and is not recognized in the majority of common law countries.12

This article will focus on an analysis of the lateral aspect of nationality. Each of the components comprising the vertical aspect of the right to nationality requires research and analysis, the scope of which exceeds the framework of this article. At the same time, I cannot ignore the vertical aspect as it will provide an important tool for laying the foundations of the thesis that the central component of the duty of the State to grant citizenship is residence in the State.

Finally in this introduction, a note of caution should be sounded: when we attempt to shape the right of a person to be a full member of a State, to enjoy all its rights and take upon himself all its duties, we are talking of the right to nationality. In English, one on occasion encounters the term "citizenship" and on occasion the term "nationality." Originally, these terms were defined differently, however, today the distinction has almost completely disappeared and the legal literature refers to them as alternative terms.13 For the purpose of this article, the terms are synonymous and will be used interchangeably.

II. CITIZENSHIP--ITS LATERAL ASPECT

Citizenship, in its lateral aspect, refers to the character of the connection between persons who are full members of the State. Examination of the lateral aspect in effect amounts to a discussion of the criteria on the basis of which a person becomes a full member of the political entity of the State, i.e., the nature of the relationship existing between him and other persons in the State which justifies including him as a full member of the State.

Citizenship is a derivation of the division into States. Division into States reflects a reality in which human societies are positioned one alongside the other. In this reality, it is not possible for all the people in the world to be strangers to each other or for all the people in the world to be members of one society. In the reality of the existence of States, a division exists between citizens who are members of a State and foreigners who are not. So long as a distinction exists between citizens and foreigners, there is room for discussing the factors which determine the basis of such membership, i.e., the creation of citizenship.14

In the view of Waltzer, one must examine the nature of our membership within smaller frameworks, in order to understand the conditions of admission to a State. Waltzer points out that it is possible to liken admission to membership of a State to admission to membership of a neighborhood, club, or family.15

Membership of a neighborhood is characterized by the fact that it is conferred without a need to meet legal preconditions. A person may come to a neighborhood and be absorbed from a social point of view or be rejected by the society; however, his ability to enter the neighborhood and live there is not constricted by any requirements. Prima facie, if this is the basis for creating the social connection, then every person could be the citizen of a State. However, this is not the case. If the world were to be transformed into a single State, this would indeed be the case, however, as I have pointed out, the world is made up of diverse countries. The diversity creates factors which are unique to every country, and so long as human kind wishes to preserve uniqueness as a value, it must regard States as closed rather than open societies, bearing a resemblance to clubs or families and not to neighbourhoods.16

Thus, one must inquire whether membership of a State should be likened to membership of a club or a family. The difference between membership of a club and membership of a family is expressed by the fact that the latter is based on a blood link or marital link. These are extremely strong connections, admission to which, in the case of a blood link, is absolutely independent of the will of a person-it is forced on him and he also cannot deprive himself of it-and in the case of a marital link, is dependent on the will of the person; however, it symbolizes a stable relationship, entry into which is significant and departure from which is possible but difficult.

Membership of a club is dependent on an admissions committee, in other words, it is dependent on the decisions of the founders of the club as to whom they are willing to accept as members and whom they prefer to reject. It is not possible to compel the founders of the club to admit members. The founders of the club decide upon the type of club they wish to run and the identity of the persons together with whom they wish to implement their goals, and these are the persons who will be allowed membership of the club. Departure from the club is always possible.17

If we draw an analogy between membership of a family or a club and membership of a State (i.e., citizenship) we shall, in fact, find ourselves discussing the two lateral aspects of nationality.

The analogy to a family is compatible with nexus to the past. According to this, membership of a State is membership of components of a particular community, where the nexus between them is the outcome of cultural links which originated in the past. Membership in the present is based on the past. The only question is whether in this analogy, nationality based on nexus to the past is similar to parents and children, i.e., to a blood tie, or whether it is similar to marital ties. If it is similar to blood ties, a person who is not a family member cannot join, nor can he relinquish his ties, as blood ties cannot be removed. However, if nationality is similar to marital ties, then a person who chooses to join the society, set down roots and adopt its culture, can be accepted by the society as a full member-as a citizen-and, if he wishes, he may even leave it and relinquish his citizenship.

The analogy to a club is compatible with basing nationality on the nexus to the present and future. The State, like a club, decides which interests it wishes to promote, on the basis of which rules its members must conduct themselves, the nature of their duties and the nature of their rights. A person who accepts the rules of membership of the club will be admitted to the club, so long as the quota of places in the club remains unfilled.

III. BASING CITIZENSHIP ON NEXUS TO THE PAST

A. Defining the Nexus

When citizenship is based on nexus to the past it emphasizes the concept of nationalism or tribalism as the basis of membership of the State.

The concept of nationalism is based on the fact that a common history, uniform language, culture, and, on occasion, also religion, provide the basis for a link between people. One may even add that in many cases, wars between people waged for the purpose of preserving culture, religion, or language comprised an important and central factor in forming nationalism.18 According to this approach, only a person who has a connection to the nation by reason of being descended from people who together experienced history and who shared a common culture and religion and fought for their preservation, is entitled to be a full member, a citizen of the State.19

Such a perception of citizenship emphasizes the "communal self," and may be likened to a family connection between parents and child. According to this perception, a person is born into an ethnic community of which he is a full member. This is a highly insular perception of citizenship. The person has no control over it. It is dictated by his birth. The individual's wishes or other natural considerations, such as residence in the State, play no part in its formulation.20

Citizenship on the basis of nexus to the past may also be established in a more flexible manner, which enables the voluntary self as well as the communal self to be expressed in acquiring citizenship. According to this approach too, in most cases, the link between the citizens of the State is based on the particular culture which was created in the past, and citizenship is conferred by virtue of birth to persons linked by that same nexus which arose in the past. However, this is not the only way of becoming a citizen. This approach acknowledges that a person may, if he so wills, prove that he has undertaken to live in accordance with the particular culture and that he is prepared to be absorbed into it. In such a case he is naturalized and is transformed into a full member of the State.21 As distinct from the first model presented, the culture is not necessarily perceived as an hereditary product only but also as an acquired product. It may be likened to a family in which, in addition to blood ties, there are also marital ties.

B. Illustrations of the Application of Nexus to the Past

Basing citizenship on nexus to the past may be seen, for example, in Germany, the Baltic States of the former Soviet Union, and Israel.22

In Germany, nationalism crystallized in the eighteenth century. Prior thereto, affiliation was with or membership was in small local communities and religious communities. The eighteenth century saw the beginning of an appreciation for the existence of a cultural identity in Germany, an identity of language, poetry, philosophy and music. Indeed, when Napoleon conquered Prussia at the beginning of the nineteenth century, a counterfight was organized in order to defend German culture. Thus, throughout the nineteenth century, a State was constructed in Germany around the concept of cultural identity. This was the origin of the German Reich. William Barbieri wrote in his book, Ethics of Citizenship: "[E]ven if no German 'people' existed prior to political consolidation in fact, once the ideology of an old-aged, living volk became internalized politically, such a national group became a social reality."23

It was on the basis of this perception of nationalism, which comprised the grounds for membership of the German State, that Germany adopted the nationality laws of 1913. According to these laws, nationality was conferred by virtue of the blood laws (ius sanguinis), and naturalization was a rare process, depending on full cultural assimilation and renunciation of previous nationality. The complex process of naturalization was only possible when there was a pressing public interest justifying the admission of the foreigner into German society. Even after the Second World War, this trend remained in place and German society did not regard itself as a society absorbing immigration and accordingly very rarely allowed naturalization.24

The requirement of a nationalist nexus, dependent on a German cultural link, as the basis for conferring citizenship in Germany, is confirmed by Article 116 of the German Basic Law of 1945, which provides that "a German within the meaning of this Basic Law is a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the frontiers of 31 December 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendent of such a person."25 The German Federation too, gives effect to the concept of national identity as the basis for creating membership of the federal State. The cry "Wir sind ein Volk," meaning "we are one people," reflects this. In Germany, the German people distance themselves from refugees and foreigners, who are of unequal status and do not completely belong, as their cultural roots and language are not German.26

The nationality laws in the Baltic States that rose on the knees of the former Soviet Union also grant citizenship on the basis of a connection between people, having its origins in the past. In Latvia, the nationality laws enable all persons who were citizens of Latvia before June 1940, and their descendants, to obtain Latvian citizenship, provided, however,

that they reside in Latvia and did not become nationals of another State after May 1990. Similarly, the law enables persons of Latvian origin, who returned to Latvia after March 1996, to become citizens on the basis of their national origin.27

In Lithuania too, a person who was a Lithuanian citizen prior to June 1940, and resides in Lithuania, as well as his descendants, are regarded as Lithuanian citizens. Persons of Lithuanian origin who do not reside in Lithuania have the right to acquire Lithuanian citizenship.28

Unlike Germany and the Baltic States, the Israeli concept of nationality could not be based on a nexus to the past of a common history and common culture which developed in a defined territory. The persons who provide the potential for creating the nation were separated from the territory for many generations but despite this preserved a common culture throughout the Diaspora in which they lived, by preserving the Jewish religion. Jewish nationality which is being renewed in the State of Israel is therefore connected by an umbilical cord to the Jewish religion. Its basis is located in Jewish culture which was shaped by the laws of the Jewish religion. Against this background, the principle of return was developed in the Law of Return, according to which every Jew possesses the right to enter Israel for the purpose of settling there. Such a Jew is termed an "oleh" (immigrant) in the Law of Return.29 A person is also deemed to be an "oleh" who is a Jew who was born in Israel or lived there when the Law of Return came into force. An additional law, namely, the Nationality Law, provides that "[e]very 'oleh' under the Law of Return shall become an Israeli national,"30 without making the acquisition of nationality of the oleh subject to any other precondition.31

The Nationality Law indeed sets out alternative means for acquiring citizenship in accordance with Israeli law, but there is no doubt that acquiring citizenship by virtue of "return" is the easiest and most automatic method, whereas the other methods are complex and heap numerous difficulties on persons wishing to become citizens of the country.32 It follows that according to the Law of Return and the Nationality Law, significant preference is given to Jews in the acquisition of citizenship of Israel, compared to persons who are not affiliated with the Jewish nation.33

The application of the Law of Return has given rise to profound dilemmas over the years in relation to the significance of the Jewish identity which provides the basis of

affiliation to the Jewish nation, on the grounds of which it is possible to acquire full membership or citizenship of the State of Israel. The questions have primarily turned on whether the test of Jewish affiliation is objective and determined in accordance with religious law, or whether it is subjective and every person who regards himself as belonging to the Jewish nation can join that nation and become part of it. After the Supreme Court decided in the Shalit case, by a majority of five to four, that the test is subjective,34 the legislature felt the need to change this legal outcome and provided that a Jew is a person who is born to a Jewish mother or who has converted and is not a member of another faith.35 After this test was established by statute, a question arose relating to the manner of conversion which justifies joining the Jewish nation: Is reference only to orthodox conversion or should reform and conservative conversion also be recognized as enabling a person to become part of the Jewish nation?36

These dilemmas are difficult; they touch upon the roots of the existence of the Jewish people and require an independent discussion which shall not be conducted within this framework, as my main purpose in this article is to examine the preliminary question of the legitimacy per se to base membership-citizenship on nexus to the past. Before moving to this discussion, I should note that the amendment of the Law of Return, consequent upon the Shalit case, defined Israeli nationality as an institution which in most cases is closed and bears greater similarity to a relationship within a family-between parents and children-- than to the relationship between a married couple, where the universal or voluntary self is dwarfed by the communal self.37 A certain moderation of the provision that the test for affiliation to the Jewish people is objective, was carried out by a concurrent amendment to the law, to the effect that "[t]he rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 1952, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew ...."38

C. Dilemmas in Conferring Citizenship by Virtue of Nexus to the Past

Criticism has been advanced in the legal literature regarding the process of basing the right to citizenship on nexus to the past.

One argument is that the entire framework of a nation is not a natural framework, but rather an artificial structure which does not reflect the true reality of cultural unity.

In his article Clan and Superclan: Loyalty, Identity and Community in Law and Practice, Professor Thomas Franck puts forward the opinion that there are few States in which a single nationality completely corresponds with the State.39 In his view, the State in fact comprises a union of diverse cultural groups which have been compelled by external factors to unite nationally, but in practice such unity does not exist.40 According to Franck, both Germany and Britain are imaginary nations and no cultural unity exists among the

diverse groups located therein: "Throughout the world, despite the power of the nationalist and self-determination movements, there are today almost no 'nations' in the pure ethnic, genetic or cultural sense."41

Franck also refers to the State of Israel which is certainly defined as a State where citizenship primarily relies on a connection to a common past.42 He draws attention to the fact that the Jews now living in the State of Israel are not part of a homogenous group.43 They belong to various groups of European, African, and Middle Eastern origin.44 According to him, the difference between these groups is expressed in the political, social, and cultural life of Israel.45 Franck adds that in the past too, prior to the exile, Israel was divided into tribes, and, in particular, into the Kingdom of Judah and the Kingdom of Israel.46

In my view, even if the birth of the national State has its origins in a certain fiction, from a defined point in time and thereafter, the fiction is nonetheless transformed into a concrete reality which cannot be ignored. If we return to the example of the State of Israel, Franck himself points out that despite the fact that a close examination of Israeli society reveals the existence of diverse groups, one cannot ignore the fact that Israelis speak a common language, and that they share a sense of a common past and culture.47 similarly, since the establishment of the State, Isreal is united around the feeling of existential danger and the need to defend itself against annihilation by the enemies surrounding it.48 Such unity and the desire to fight in order to preserve life in the State reflects a real national bond between people which testifies to the nation being more than a mere collection of immigrants from different parts of the world.49

Further, an argument made against basing nationality on a nexus to the past is that it is not founded on political logic bu ton emotion and the unconscious:

Its roots seemed to reach into the dark soil of primitive times and to have grown though thousands of hidden channels of unconscious development, not in the bright light of rational political ends, but in the mysterious womb of the people, deemed to be so much nearer the forces of nature.50

And being based on emotion, nationalism also gives rise to dark feelings of xenophobia and a sharp tendency towards insularity and aggression in order to protect it. On nationalist feelings, it has been written:

[T]hey have capacities for generating emotion in successive generations, they possess explosive power that goes far beyond the 'rational' uses which elites and social scientists deem appropriate. Evoking an heroic past is like playing with fire, as the history of all too many ethnic and nations locked in conflict today,

can tell. The fires generated by these mythical pasts burn for several generations, long after the events that first stimulated their acceptance.51

One cannot deny the fact that in adopting the myth of a common past as the basis for granting citizenship, use is made of an element of emotion. However, this element of emotion does not only strengthen the feeling of common belief that preservation of the framework of the nation is an important and valuable purpose. In fact, patriotic feeling contains a positive element, strengthening the feeling of belonging, unity, solidarity, and loyalty to the State.52 Franck lucidly described this advantage as follows:

America is only a state, Germany a nation (which also, after a hiatus, was again able to regain statehood). But whatever fragmentation and suppression the German nation-state may have endured after its defeat in 1945, its people never for a moment ceased to think of themselves as a nation. The powerful pull of loyalty exerted by the imagined nation demonstrates that, even in the age of science, a loyalty system based on romantic myths of shared history and kinship has a capacity to endure that may be the envy of a state with the most liberal civil society and patriotic citizenry.53

The added value of being subsumed with the feeling of a bond and link to the past of the society in which one lives, is expressed by that person's added spiritual happiness and feeling of meaning in his life. When the factor uniting each member of the nation is a common past, that member sees himself not as a lonely creature in a vacuum but as a part of history, as someone connected to the past of the nation, who is constructing its future by preserving the values of the society in which he lives, and who is even willing to fight to preserve them.54 In the language of Yael Tamir:

Why should we, Jews, Palestinians, Basques, or Irish-establish our own separate political entities? Because there is something distinct about us that we wish to preserve and the best, although not the only, way of doing this, is ensuring for ourselves a public sphere imprinted with our own cultural and political institutions.55

My conclusion is that despite the problematic nature of the nexus to the past by reason of it being based on fiction and entailing myths and emotions, nexus to the past has an added value for human life and therefore a moral justification for use as a central pillar in the construction of societies in a State. This conclusion, however, does not put an end to the issue under discussion, as one may still ask the question to what extent may one, in the name of the interest of crystallizing the connection between people on the basis of a common history and common fate, create a closed society and prevent others from being absorbed within it as citizens.

This question has two aspects: first, what is the fate of the membership of those who already live in the State but have no common past with its citizens; and second, what is the fate of those people who are located outside the State and wish to enter and be absorbed as

full members? I shall confront these dilemmas at a later stage,56 but first I shall consider the acquisition of nationality on the basis of a partnership in the present and construction of a common future.

IV. BASING CITIZENSHIP ON NEXUS TO THE PRESENT AND FUTURE

A. Defining the Nexus

There are countries where the grant of citizenship is not based on links of common fate, history, or religion. The willingness of the members of the State to live on the basis of defined principles which have been established by its founders, and which are generally incorporated within a constitution, is the basis for citizenship. Underlying this is the faith that living in the light of these principles is the basis for a desirable present and future life.57

Such a framework is completely unlike the framework of a family. It is similar to the framework of a club.58 The State, like the club, is established in order to enable the implementation of defined purposes. The State admits members who are prepared to fulfill pre-determined requirements which are designed to enable the State to exist and achieve its goals.

The individual self finds greater expression in this type of framework of a State than in a framework based on a nexus to the past, as the conditions of admission are not beyond the control of a person; they are not hereditary, but rather they are acquired. At the same time, even this type of framework of a State as a club is not a framework which allows expression to be given to every individual-self, as there is a defined quota of places in the club, and it may certainly be the case that an individual who expresses the desire to gain admission to the club will be rejected even if he meets all the criteria for admission. In other words, notwithstanding that acquisition of citizenship by virtue of nexus to the present and future is different from the acquisition of citizenship by virtue of nexus to the past, even in the former case citizenship remains a closed club, albeit for different reasons. The reasons will not stem from affiliation created on the basis of criteria originating from the past, but from matters connection with the present and future reality.

B. Application of Nexus to the Present and Future in the United States

The United States provides a classic model of a State in which citizenship is granted on the basis of nexus to the present and future. The United States was established as an immigrant country and it may be said that the first hundred years of its existence were characterized by unlimited immigration and absorption of people arriving within its territory. In principle, the United States did not decide to absorb immigrants from any particular ethnic background, but enabled the entry of all persons wishing to make their life within the country.59 Entry was permitted to every person; however, full membership-- citizenship-was only granted to free white persons, resident in the United States for two

years, of which one full consecutive year was accomplished in one of the States of the United States, and who could prove that they had a positive character and were willing to swear to uphold the constitution of the United States.60

Over the years, immigration laws also developed in the United States. These transformed the United States into a closed club. As the United States was a country which was not designed to give expression to the self-determination of groups of people who declared themselves to possess a shared fate, history, and culture, but rather a country which was intended to open its gates to all, an expectation existed that legislation which restricted entry into the United States would focus exclusively on considerations of compatibility with the constitutional framework of life in the United States and its quality. This however was not the case.

A perusal of the immigration legislation of the end of the nineteenth century and beginning of the twentieth century reveals that the legal reality did not always conform to the declared policy, and that the restrictions on immigration also bore a nationalist character. Alongside the laws restricting immigration of criminals, prostitutes, lunatics, the poor, the ill, and polygamiStS,61 which were entry restrictions based on considerations of compatibility with the framework of life in the United States, we also find laws restricting immigration on a national basis. Laws were enacted which restricted the entry of Chinese into the United States, and which prohibited granting them citizenship, 62 as well as laws which prohibited the entry of Japanese into the United States, 63 and Asians to certain areas in the United States.64 In 1917 a law was enacted which made reading and writing a precondition for immigration into the United States.65 This law was prima facie intended to raise the standard of persons arriving in the United States, but indirectly it served as a barrier to the entry of people from East Europe who were flooding into the United States in the first decades of the twentieth century. The population in the United States which, in the main, was Anglo-Saxon, was not eager to absord immigrants from East Europe and indirectly ensured that obstacles were placed to their entry into the United States.

The entry of persons into the United States in accordance with national-ethnic considerations was also expressed later, in 1924, when a shift was made to admissions on the basis of quotas. The system of quotas to a certain extent preserved the North-West European majority in the United states. It provided that a fixed percentage of every ethnic group would be allowed to enter the United States every year. Thus, if, for example, the quota stood at three percent, then clearly three percent of the population figure living in the United States that originated from Ireland was much greater than three percent of the population figure living in the United States the originated from Poland. According to this system, the majority of immigrants who arrived in the United States would be from the same countries as the majority of persons already living in the United States. The shift to a quota system based on geographic areas, unequally divided, were again a reflection not of pure utilitarian considerations on the part of American society but rather of a manifest desire to

preserve a West European majority in the United States, comprised, in particular, of native English speakers.67

Beginning in 1965, the quotas based on national origin were repealed.68 The current immigration law, which was enacted in 1990, crystallized into a framework which allows immigration based on utilitarian considerations of American society. It no longer seeks to directly or indirectly preserve the national interests of any particular population group. At its core is a determination of the maximum number of people which the United States is prepared to absorb every year. About two-thirds of these people are relatives of citizens of the United States, about 20 percent enter the country on the basis of a professional skill in demand, and the remainder are processed on the basis of their needs in the light of various crises around the world.

The next stage that immigrants must undergo in order to acquire full membership in one of the States of the United States is naturalization. Here, in contrast to States which base nationality on nexus to the past, for the purpose of obtaining nationality, no distinction is drawn between people of different ethnic background. Every one who enters the United States as an immigrant, and who has been awarded the status of a permanent resident, and has lived for five years in the United States,69 may become a citizen of the United States.

The purpose of this period of residence between being awarded the status of a permanent resident and being granted citizenship is to sever the relations between the person desiring to be naturalized and his country of origin, to enable him to learn the principles of the American constitutional system, and thus become assimilated in the United States from a national-cultural point of view.70 The legal reality in the United States does not recognize a process of automatic naturalization. A permanent resident must live in the United States prior to becoming a citizen.

Similarly, a person desiring to become naturalized must prove knowledge of the English language. A number of tests are carried out during the naturalization process which ascertain the applicant's ability to speak and understand English, as well as to read and write the language. The applicant must also be tested on and prove a basic knowledge of the elementary aspects of United States history and its governmental structure.71 The tests are not strict and applicants are given the opportunity to be re-examined if they fail.72

In addition, in order to become a citizen, the applicant must show that he is bound to the constitutional principles and knows and appreciates the advantages and happiness encompassed by life in accordance with the order fixed by them.73 This appreciation is proved by his conduct over the years, for example, that he has not performed subversive acts against the regime in the United States. Further, he must swear allegiance:

(1) to support and bear faith and allegiance to the Constitution of the United States; (2) to renounce ... all allegiance to any foreign ... state or sovereign ... (4) to support and defend the Constitution and laws of the United States against all enemies, foreign and domestic; ... (5)(A) and to bear arms on behalf of the United States when required by law ....74

Here I will merely point out that citizenship of the United States is not only granted by virtue of naturalization. According to the Fourteenth Amendment to the Constitution, every person born in the United States, even if to foreign parents, is a citizen of the United States.75 Similarly, citizenship is vested in foreign-born children of U.S. citizens.76

C. Common Features of Nexus to the Past and Nexus to the Present and Future

In the nexus to the present and future, the problems that are prima facie raised by the nexus to the past are resolved. Nexus to the present and future is not portrayed as an emotional nexus which relies on myths and fates originating in the past, but rather as a way of confronting a prevailing reality for the purpose of creating a common future. Such an approach which allows the individual the possibility of adapting himself to the democratic principles of life in the State and thereby earn full membership of it, is on the face of it more liberal, less dictated, and enables implementation of the voluntary self.

However, further consideration of the two approaches leads to the conclusion that the gap between them is not as great as appears at first sight. First, if we consider the nexus to the past: the basis for citizenship indeed relies on a common fate and past, but the present and the future also play a role in creating the nationality. If we take as an example Israeli citizenship, the Laws of Return and Nationality indeed give priority in immigration and naturalization to Jews,77 but the Law of Return expressly states that an oleh visa will not be given, inter alia, to someone who is likely to endanger the safety of the State.78 In other words, the starting point of the legislature is that the basis of citizenship originates in the past, but even when the basis is such, the potential citizen must be loyal to the State in its current format. Accordingly, the Nationality Law adds that the "Minister of the Interior is entitled to revoke the Israeli nationality of a person who has committed an act of disloyalty towards the State of Israel."79 It would be unreasonable to grant citizenship or preserve the citizenship of people who endanger the existence of the State from within or without. People who wish to undermine the security of the State or the fundamental structure of the

regime, cannot be citizens, even if they are connected to the majority of the population through a clear and strong nexus to the past.

If we consider the nexus to the present and the future, we shall see that defining it as a nexus based solely on loyalty to the prevailing governing regime out of a desire to also preserve it in the future, is inaccurate. Such a definition prima facie creates nationality on a less emotional and more modern and liberal basis. However, it appears that it is difficult to completely neutralize the emotional ties which seek to link through citizenship persons who have a close cultural background. If we return to the American example which characterizes the model of nationality on the basis of nexus to the present and future, we shall see that it contains many of the elements which make up the model of the past.

First, as we have seen above, a perusal of the immigration and nationality laws of the United States over the years testifies to a very clear effort to create a population possessing cultural homogeneity. This was expressed in various immigration laws in different times which prevented the flow of immigration which might have undermined the existence of a white, northwest European majority in the United States.80 Only in recent years has the United States become free of selective absorption of people on the basis of their origin and shifted to a process of absorption on the merits, according to the individual needs of the local population (unification of families) and needs of the community (needed professional skills).81

However this does not conclude the debate in the United States concerning American citizenship and culture. American society is today confronting problems of absorbing floods of illegal immigrants, particularly from the countries of Central and South America. A large part of the problem centers around the numerous Mexicans, who are primarily found in the area of California, some legally but most as illegal aliens. Until recently, none of these people considered obtaining citizenship in the United States; now, however, they are flooding the immigration office with applications precisely for that purpose. The reasons are twofold: first, the 1996 welfare laws in the United States confined the grant of welfare benefits to citizens only and revoked payment to persons who are not citizens.82 Second, increased flexibility in the citizenship laws of Mexico, to the effect that a Mexican citizen who becomes a citizen in another country will not have his Mexican citizenship rescinded-- is also a factor which spurs Mexicans living in the United States to apply for American citizenship.83

This reality gives rise to substantial public debate in the United States. The debate does not only focus on the benefit or economic damage involved in the absorption of these immigrants but also on the cultural significance of absorbing into American society such a huge mass of people possessing a foreign culture.84 In this context, calls are being made to amend the immigration laws of the United States and even to modify the Fourteenth Amendment of the Constitution so that nationality by birth will only be conferred upon a person born in the United States to a woman who is a citizen or legal resident. In practice,

the persons living illegally in the United States are Mexicans and other immigrants from Central America, and therefore a modification such as this to the Constitution, were it enacted, would reduce the number of persons of Latin American origin who would be granted citizenship. The dominant consideration for such a modification would be the preservation of American culture and fear of injury to it by reason of the absorption of large numbers of people coming from a single foreign culture.85

The cultural dimension in the perception of American nationality is also expressed in the idea of Americanization which is part of the process of naturalization. In order for a person to become a national, his knowledge of the English language and the history and elements of government in the United States must be tested.86 This process too is a subject of great controversy in the United States. The liberal approach holds that the obligation to learn English and be tested on English and American history as a condition for obtaining nationality is wrong because the factor connecting the citizens of the United States is a neutral attitude towards the principles of the Constitution and a decision to live in accordance with them.87 According to this approach, beyond the agreement to preserve the principles of the Constitution, persons living in the United States should not be required to have any particular nexus, and they must be enabled to develop their cultural affiliations as they wish. In this context, talk in the United States is of multiculturalism or even of nationalist-cosmopolitanism, which means "a nationalism that can get along with a much thinner, less sharply defined national culture than is characteristic of most nationalisms."88

This approach has been criticized sharply, primarily by reason of the fear that great cultural division will, in the long term, not allow the country to continue to exist, as the loyalty to the different groups will reduce the loyalty to the fundamental principles of the State.89 According to this approach, learning the English language and knowing American culture must be ensured as a vital condition for the continued preservation of the principles of the Constitution. The argument is that the loyalty to the Constitution and its principles (what I have termed nexus to the present and the future) would be placed in real danger if the United States did not develop a sensitive nationalist culture of a common language and a sensitive nationalist attachment to the importance of the acts of the Founding Fathers-- comprising a substitute for the patriotic feelings existing in States relying on a nexus to the past.90 The Founding Fathers themselves were aware of the need to create nationalist feelings of belonging as the basis for creating a common life in accordance with the Constitution in the United States. The Founding Fathers spoke of "nationalist spirit" and "nationalist character" of a people who can live as citizens. They demanded that people living in the United States as well as immigrants develop a common language, and establish work norms and norms of life in accordance with the Constitution. Likewise, they talked of a warm and loving emotional attitude towards the Constitution and to the idea of unification of the various States into a single State: the United States.91 Lincoln spoke of "the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together ...."92

A committee which was established in the United States in 1997 in order to examine the policy of immigration and absorption of immigrants supported the need to teach immigrants English, American culture, and the elements of government as the basis for absorbing them in the United States. At the same time the committee declared that "[it] has altered its view of Americanization from the traditional view of one-way adaptation by immigrants to majoritarian norms to a reciprocal and more mutually respectful process."93

Even if the committee ameliorated to some extent the substance of the Americanization of the immigrants by declaring that citizens of the United States must respect the cultural world of the immigrants, it nevertheless retained the requirement that immigrants be taught English and American culture. The conclusions of the committee in fact strengthened the approach holding that there is a need to create a certain level of cultural homogeneity in the United States. This cultural homogeneity is vital in order to build a nexus and bond between the citizens of the United States beyond the "thin" neutral nexus of a collective life in accordance with the principles of the Constitution. This is because in the absence of a joint cultural link there is no feeling of a shared destiny and no emotional sense of loyalty. In the absence of all these, the principles of the Constitution cannot be preserved over the long term.94

In this section I have in practice blurred the distinction between nationality based on nexus to the past and that based on nexus to the present and the future. Nexus to the past without loyalty to the basic principles of the State in the present for the purpose of preserving them for the future, fails to provide a possible basis for nationality. Nexus to the present and to the future, detached from a nexus to the past in which a feeling of loyalty and emotional attachment to the State and its culture is developed, also is incapable of conferring nationality.

Citizenship on the basis of nexus to the past, which is analogous to a family nexus, and citizenship on the basis of a nexus to the present and future, which is analogous to membership of a club, have an additional common factor. In both, the number of participants is limited. Both limit the number of participants in the same ways: they refrain from conferring citizenship upon persons who live within their territory and in addition they prevent persons who are located outside the State from entering it, even if they wish it.95 Below I shall examine the legitimacy of restricting the conferral of citizenship both in relation to those residing in the State and in relation to those wishing to gain entry to it.

V. CITIZENSHIP AND RESIDENCE

A. Residence as the Basis of Citizenship

The analogy of nationality by virtue of nexus to the past to family links, and by virtue of nexus to the present and the future to membership of a club is not complete. States are not only family or clubs. States, whether they are likened to families or likened to a club, have an additional component, namely, territory. Indeed, both families and clubs have property but they do not have sovereignty over the property. The fact that a State has sovereignty over territory means that it is morally committed towards those who chose to make this territory the center of their lives.96 Waltzer says of this:

The State owes something to its inhabitants simply, without reference to their collective or national identity. And the first place to which the inhabitants are entitled is surely the place where they and their families have lived and made a life .... The process of self-determination through which a democratic State shapes its national life, must be open, and equally open, to all these men and women who live within its territory, work in the local economy and are subject to local law.97

What are the grounds which underlie the determination that residence in a State is the primary basis for conferring nationality?

According to Waltzer, sovereignty is the central ground for determining that nationality should be conferred by virtue of residence, as a sovereign State is first and foremost a defined territory with a population and an effective regime which regulates the life of the population.98 Accordingly, a person who resides in the State is a person who comprises one of the components of its existence, and by virtue of this he is entitled to be a full member of it, i.e., a citizen. A slight variation on this reasoning states that persons who live in a State are the persons who take part in creating its experiences, developing its economy, and developing its social life, and accordingly they are the ones who are primarily entitled to become full members of it:

Why should the legal requirements be limited to residence? ...

Fundamentally, this is an argument about the moral priority of civil society in relation to political society. Living in a society is what makes a person a member of civil society. In living in a society, one inevitably becomes involved in a dense network of social associations and acquires interests and identities tied up with other members of the society. Legal citizenship offers one important means by which those interests and identities can be protected and expressed. For many people it will seem an essential means. In sum, long-term membership in civil society creates a moral right to political membership.99

The longer one lives in a State, the closer one gets to the status of nationality in the sense of belonging and nexus, and in this way provides a greater contribution to society in

terms of the payment of taxes, military service, and involvement in society. When a population lives for many years in a State and, in practice, functions as a population of citizens but it is not given the full right to become a population of citizens, a category of second-class persons is created, a result which is unjustified, immoral and dangerous to democracy, with the potential to lead to uprisings and civil revolt: "the existence of a substantial population that is a permanent party of the community but can never acquire a voice in its governance is over time, a serious threat to liberal democracy at all."100

An additional way of rationalizing the determination that citizenship should be granted on the basis of residence requires reference to the vertical aspect of nationality.

The legal significance of a person being a citizen of a State is the conferral of rights and imposition of duties. If we take as an example the central right which arises out of citizenship, namely, the right to participate in political life, to elect and to be elected,101 we can see that this right enables people to shape the nature of life in society. By means of the democratic process of elections, a person decides who will stand at the head of the executive authority in his State, and decides the nature of the legislative authority.

If this is the case, it is logical that the persons who will decide the nature of life in the State are those persons who live in the State, reside in it, work in it, and educate their children in it. Enabling persons who live outside the State to elect and be elected and thereby to determine and influence the nature of the life of those who live in the State, by reason only of the fact that they hold nationality by virtue of the laws of the State notwithstanding that they do not live there, is undesirable. Persons who do not take an active part in the life of the State cannot assert their influence on that life. And in contrast, removing the right to elect and be elected from persons who have resided for many years in the State and have taken an active part in creating reality there, is also undesirable.

The fact that a person who resides in a State must be granted citizenship in order to enable him to exercise the right to elect and be elected is discussed by Peter Spiro in his comprehensive article on citizenship.102 According to him, the reason for this is that

the more residents who become citizens, the more inclusive the deliberative process will be, and more likely the general good will be furthered. As Peter Schuck observes, higher naturalization rates will improve "the quality of both the governmental process and policy outcomes that it generates," for if many territorial residents remain aliens, and thus without the franchise, political actors cannot be held accountable and policymaking becomes "seriously deformed." One only has to pose the hypothetical (not so far-fetched, given today's pronounced geographical concentration of aliens) in which a majority of residents in a particular jurisdiction are aliens and are thus disabled from participating in the political dialogue. That event would, obviously, "threaten to diminish the connection between rulers and ruled," anathema to the republican synthesis. Accountability would be diluted. In the absence of political participation one would expect the triumph of particular interests over common ones.103

Like the right to elect and be elected, so too the right to be nominated to high political office:104 A person who is nominated to such office has the task of serving the people among whom he sits and with whom he lives.

A person who is detached from the local experiences of a certain State cannot join the top of the pyramid of decision-makers who shape the life of the country. In order to be fit and capable of performing a function which influences the public in the State, a person must be a resident of the State, know its language, its culture, its reality, and be actively involved in events there.

If we examine, as an example, the right of a citizen not to be extradited from his State to a foreign State for the purpose of standing trial and undergoing punishment for an offense which he committed in the foreign State, the question whether it is proper to grant citizens such a right is a matter in dispute. 105 But even if we support the approach which favors providing a citizen with a defense against extradition, the defense becomes distorted and devoid of any basis if it is given to a citizen who is not a resident of the State affording him protection and refusing to give him up. Such a situation recently arose in its full starkness in the context of the application for the extradition of a Jewish youth, who is a citizen and resident of the United States, as well as a citizen of Israel. Charges of murder were brought against the youth in the United States. The youth fled from the United States to Israel. He exploited the right of entry enjoyed by citizens of the State and argued that he was entitled to protection against extradition to the United States by virtue of the Israeli Extradition Law which prohibits the extradition of citizens.

Beyond the many legal problems involved in the issue of extradition from Israel to the United States raised by this case, a particularly prominent difficulty concerns protection by virtue of citizenship, demanded by a person who is a citizen of the State whose protection he seeks, but in which he does not reside.

This distorted situation led to an amendment of the Extradition Law. The amendment limited the scope of the protection afforded to citizens against extradition, and in addition provided that any protection given to a citizen against extradition would only be given to citizens who are also residents in the country. 106

As with rights so too with duties. It is not reasonable to oblige a person who is not a resident of the State to bear the burden of defending it in the security forces.107 The National Defence Law in Israel requires that citizens and residents perform military service. Many Israeli citizens who are not residents of Israel are wary of coming to Israel for fear of being drafted into the Army. Accordingly an arrangement has been established whereby they receive a certificate from the Israeli consul at their place of residence confirming that they are indeed residents of a foreign country and that they should not be drafted in the event that they come to Israel. This process teaches us that the State undertakes not to draft into the Army persons who are not residents of the country. Accordingly, the State believes that citizens who are not residents are not bound to carry the central duty derived from citizenship, namely, military service for the purpose of protecting the homeland.

The citizen's general duty of loyalty to the State, irrespective of where he is located in the world, may also be problematic for a person who is not a resident of the State. In practice, such a person has a closer connection to the place in which he resides. In many

cases he will also become a citizen of that State. In the event of a conflict of interests between the States, there is certainly the possibility that his primary duty of loyalty will be towards the State in which he resides.

One may conclude from the foregoing that if there is no room to confer rights or to impose duties upon persons who are citizens but not residents by virtue of that citizenship, it is illogical to confer citizenship upon a person who does not reside in the State. Citizenship is, in essence, the closest link between a person and a State which invests him with rights and duties. If there is no room for conferring rights and duties which are derived from citizenship upon a person who is a citizen but not a resident, there is in fact no room for granting him citizenship at all.108

Is it possible to conclude from this that every person who lives in the State is entitled to demand that the State recognize him as a citizen? Waltzer states in relation to this that "[nationalization is] subject only to certain constraints of time and qualification never to the ultimate constraint of closure ...."109

Put differently, reference is to residence in the State for a certain significant period of time, following which a person becomes entitled to the right to citizenship. In addition, certain qualifications are required.

Waltzer does not specify the nature of the qualifications required. It is clear from his comments that it would be immoral and illegitimate to assert that the qualifications are derived from any nationalist connections"o or even from the benefits which such a person can bring to society. Accordingly, one must assume that the qualifications are derived from the willingness of the person to live in accordance with the laws of the State and to be loyal to it and to its constitutional principles. A person who lives in a State and seeks to undermine it or who is not loyal to the elements of its regime, loses the ability to be a full member of it.

B. Residence and Citizenship by Virtue of Naturalization

1. Requirement of Residence as a Precondition for Naturalization

A person may acquire citizenship in one of two ways: by way of naturalization or by birth.111 In the process of naturalization, a person acquires citizenship at a certain stage during the course of his life. If residence is the basic moral justification for obtaining citizenship, then the process of naturalization which is not preceded by residence in the place is defective in nature.

In the United States, obtaining nationality by way of naturalization has always been dependent on the precondition of residence.112 The period required today as a condition for naturalization is five years, out of which the applicant must not have been absent from the country for more than two and a half years, or more than six months during any one absence.113 Such a time framework for residence prior to conferral of citizenship appears reasonable, desirable, and necessary in order to create a link between the person and the place which justifies granting him citizenship. Prima facie, according to the Israeli Nationality Law too, a person cannot be naturalized unless "he has been in Israel for three years out of five years preceding the date of the submission of his application."114 However, in practice, most of the naturalization processes in Israel take place without a preceding period of residence in Israel. The Nationality Law recognizes the special process of naturalization for Jews and family members, called "nationality by virtue of return." According to this process, "every oleh under the Law of Return-1950 shall become an Israel national by virtue of return."115 In other words, the Nationality Law enables the oleh, who, according to the Law of Return, may be a Jew or one of his family members,116 to automatically become an Israeli national upon his immigration into the country.

Such a legal reality, in which a person becomes a citizen without having created any residential link to Israel, is problematic. As I have shown, the justification for conferring full membership of a State is dependent on the person becoming an integral part of the life there.117 A person who does not reside in the State, does not take any part in building its economic and social life, therefore is not a component of the population which comprises the State and is not entitled to become a full member of that State. If a person does not live in the State at all and does not intervene in its culture, the State will also lack any opportunity to test his loyalty to the elements of its government and to the fundamental principles underlying its existence.

Accordingly, I believe that with the crystallization of the international human right to nationality on the basis of a residential link, room exists to amend the Law of Return and also to make the naturalization of Jews in the State of Israel contingent upon a preceding period of residence.

2. The Duty to Grant Citizenship to a Resident in the State

If residence is the central link required for giving rise to the right to nationality, then when the requirement of residence has been met, the State will be under a duty to grant nationality.

Modern reality has created a situation whereby in every State people live and reside who are not citizens of that State. This reality can be the result of a number of factors.

First, on occasion there are populations in a State which have been transformed into minorities by reason of political processes and changes, such as the dissolution of the former Soviet Union. If we take the Baltic area, its residents, whether of Lithuanian, Latvian or Russian origin, were all citizens of the Soviet Union. When the Soviet Union dissolved, and

States such as Lithuania and Latvia arose anew, they established nationality laws on the basis of identity deriving from nexus to the past, and possessing a connection to the Lithuanian or Latvian ethnic origin, respectively. In each of these States, there are also persons living who are not of this origin, for example, persons of Russian origin. These persons suddenly found themselves a minority without nationality.118

Second, in many States throughout the world there are populations of migrants. Broadly, it is possible to categorize them as migrants who are recognized by the State as persons who, following a period of residence, will become citizens of the State,119 and temporary migrants. In modern reality, the majority of the temporary migrants are what are termed "foreign workers," in other words, persons who received permission to enter the country in order to augment the local labor force. A sub-category of this category of foreign workers is the group of illegal foreign laborers. In Europe, like in the United States and in recent years in Israel, there are highly significant concentrations of persons who have infiltrated into the State illegally or who have stayed in the State beyond the period permitted by their visas, and who are now staying illegally. On occasion the authorities are not interested and on occasion do not wish to arrest and deport them, so that the States end up with large populations of foreigners who live in the country for many years.120

Third, the population of strangers in a State may also consist of refugees. Refugees are persons who face a danger to their lives if they return to the country from which they fled. The country of refuge is obliged to afford them protection in the sense that it is forbidden to repatriate them to the place where their lives are at risk. Situations exist in which refugees stay in the country of refuge for many years, as the danger in the country of origin persists and no third country is willing to take them in. In this way an additional population of foreigners may be created in the State.121

All these foreigners, minorities, foreign workers, and refugees are people who, in practice, reside in the State. The question which therefore arises is whether their residence over a long period of time within the State does not require the State to grant them nationality.

Waltzer refers to this issue, but in one context only, namely, that of foreign workers. He points out that in practice States treat foreign workers as people who come to live in a neighborhood. They can enter the State for the purpose of work and leave it at will, but they cannot become part of the family or the club. In his view, such a reality is discriminatory and unjustifiable, as the non-grant of nationality to workers who reside in the place for a lengthy period of time turns them into an inferior and fearful class-since, without

citizenship, the threat of deportation will always hang over them. In order to preserve their source of income, they are willing to work at cheap rates, and thus the non-grant of nationality will lead to exploitation as far as they are concerned. Waltzer likens a State with foreign workers to a family with live-in servants: "Why are they admitted? To free the citizens from hard and unpleasant work. Then the State is like a family with live-in servants. That is not an attractive image, for a family with live-in servants is-inevitably, I think-a little tyranny."122

In Waltzer's view, these foreign workers who live for years in the country, work there, are involved in it, and contribute to its economy are entitled to obtain citizenship. He notes:

The relevant principle here is not mutual aid but political justice .... [T]hey are living among citizens. They do socially necessary work, and they are deeply enmeshed in the legal system of the country to which they have come. Participants in economy .... [T]hey ought to be able to regard themselves as potential or future participants in politics as well.123

Waltzer's position is correct so long as reference is to foreign workers who are permitted to stay for a long time in the State but who are not granted citizenship. In those cases the problem of exploitation exists, and in Waltzer's words political justice requires granting them nationality. However, when reference is to foreign workers who obtain a visa for only a short stay in the country, for example, a visa which is for less than five years, the right to citizenship by virtue of residence will not arise, as in this short period the foreign workers will not yet become part of Israeli society and thus no moral duty to confer citizenship upon them will arise.

A difficult question arises in relation to the status of illegal foreign workers. On the one hand, it is possible to ascribe the blame for the illegal residence exclusively to them and argue that the State prohibits their entry and therefore they cannot become part of society, as their presence has its roots in an offense. However, this argument is tainted by hypocrisy, as many Western States, including the State of Israel, to a large extent ignore the phenomenon of illegal foreign workers. Notwithstanding the constant threat of imminent deportation, they provide a source of very cheap labor, and it is convenient for Western countries to enable them to remain without granting them any rights. The fact that the State covertly collaborates with the creation of this phenomenon of illegal foreign workers, is expressed by the fact that the authorities do not impose sanctions against citizens of the State who employ these foreign workers. In this way, the State aids the creation of the phenomenon of foreign workers living in the country without permits over long periods of time. Thus, so long as the State does not send out a clear message to its citizens to the effect that it opposes the continued presence of illegal aliens within its territory, the State in practice indirectly enables them to remain. In light of this practice, serious consideration must be given to whether illegal foreign workers who are located within the State for a number of years should not also be entitled to citizenship by virtue of their residence in the State.

As I have noted above,124 there are States which deny minorities the right to citizenship. These minorities are generally made up of persons who lived in the place even prior to the establishment of the State. If residence is the central basis for granting citizenship, then such persons are entitled to citizenship.

Brownlie stated his views on this issue as early as 1963, to the effect that when a new State is established by virtue of any process of State succession, the residents of the new State must be granted citizenship by virtue of their residence. Brownlie argued that the grant of citizenship to the residents of the new State was obligatory by virtue of the practice of States, and amounted to an international binding custom.125

Brownlie's opinion was attacked as too far-reaching. The scholars did not attack the idea that it was desirable and proper to grant citizenship of the new State to everyone residing within its boundaries, but they criticized the statement that this principle amounted to a binding rule of customary international law. In their view, a presumption existed to this effect, and indeed the practice in many cases was compatible with this principle; however, this was not evidence of the establishment of a binding rule of customary international law.126

Recently, the International Law Commission of the United Nations published a draft convention together with explanatory notes, concerning the nationality of persons in the context of State succession (the Draft).127 In this Draft, which itself comprises an important and progressive chapter in understanding the attitude of international law to the issue of nationality as a whole and State succession in particular, it is provided that the guiding principle in the grant of nationality by States involved in changes in sovereignty will be residence. Article 5 of the Draft sets out the principle that: "Subject to the provisions of the present draft articles, persons concerned having their habitual residence in the territory affected by the succession of States, are presumed to acquire the nationality of the successor State on the date of such succession."128

Indeed, this rule does not compel the new State to grant nationality to everyone residing within its territory; however, it provides that unless otherwise decided, the basic presumption is that this is the state of affairs.129

An interesting example of the implementation of the principle of the grant of nationality on the basis of residence in respect of persons living in a new State, and in

particular persons belonging to a minority, may be found in Israeli law. Israel distinguishes between the grant of nationality to Jews and the grant of nationality to non-Jews.130 The distinction between Jews and non-Jews is expressed both in relation to the possibilities of entering Israel and acquiring nationality and in relation to the conferral of nationality upon persons already living in the State at the time of its establishment and at the time of the enactment of the Laws of Return and Nationality. Jews who immigrated to Israel prior to the enactment of these laws or who were born in Israel, i.e., Jews who resided in Israel at the time of its establishment, and for whom Israel was the center of their lives, were automatically entitled to nationality by virtue of return.131 Non-Jews (this group comprised in particular Arabs living in the country) were entitled to obtain nationality only if they met the conditions set out in Section 3 of the Nationality Law.132

According to these conditions, the non-Jew had to be registered on March 1, 1952 as an inhabitant in the Registry of Inhabitants, he had to be an inhabitant of Israel on the day of coming into force of the Law, and he had to prove that from the day of the establishment of the State to the day of the coming into force of the Law he was in Israel or had entered Israel legally.

This latter requirement created a heavy burden on numerous Arabs who had fled during Israel's War of Independence, and had returned after the fighting to live their lives within the territory of the State of Israel. In 1980, Section 3 of the Nationality Law was amended, and, inter alia, this requirement was repealed. Repeal of the requirement enabled the majority of Arabs living in the State of Israel during the initial years of its establishment (and it may be assumed that most of them also lived there prior thereto) to become citizens of the State. These Arabs expressly acquired nationality "by residence in Israel."133

A similar problem of a minority living in a State demanding nationality exists in relation to the Arabs of East Jerusalem. After the Six Day Way, the State of Israel applied its law, jurisdiction, and administration to East Jerusalem.134 The State of Israel regards Jerusalem as a whole as part of the State of Israel, a fact which is also reflected in Basic Law: Jerusalem, Capital of Israel.135 The residents of East Jerusalem have officially lived within the territory of the State of Israel for more than 30 years, and the question which arises is whether they are not entitled by virtue of this residence to be citizens of Israel. Prima facie, on the basis of the principle set out above, the answer to this must be in the affirmative. However, it must be remembered that conferral of nationality by virtue of residence is not an absolute right and it may be restricted by considerations of time and capacity.136 The residents of East Jerusalem meet the requirements of time; they have lived in the area for many years under Israeli sovereignty. However, the question is whether the Arabs of East Jerusalem have the capacity to become citizens of Israel: whether, in the political context of their demand to make East Jerusalem the capital of the State of Palestine, a demand which is contrary to the policy of the government of Israel and Basic Law: Jerusalem, Capital of Israel, they may be seen as a population which is loyal to the

State of Israel and its values. In the absence of loyalty on the part of the residents to the fundamental principles of the State, the capacity to become citizens is also lacking.137

An additional class of foreigners in a State may be made up of refugees. Whether the refugee has entered the country with a permit or not, the State has the duty-by virtue of the principle of non-refoulement-not to return him to the country in which his life is at risk.138 The great fear of countries granting refuge is that they will be flooded by massive waves of refugees even though they are not interested in absorbing immigrants. In other words, the entry of refugees into the country is often against the will of the receiving country.

There may be cases where refugees will live for many years in the country of refuge, as no third State agrees to take them in, and they cannot return to their country of origin. The question arises whether in such cases too, a State must be compelled to grant the refugee citizenship. International law speaks in moderate language of this as follows: "The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees."139

In other words, there is no duty upon the country of refuge, by virtue of the law of refugees, to confer nationality upon refugees. However, on the basis of the principles which I have set out in this article, it seems that if the refugees have lived for many years in the State, there is room to grant them nationality on the basis of their residence in the place. However, it should be remembered that a distinction exists between residence of refugees in a State and residence of other foreigners, such as foreign workers or minorities. A State allows refugees to enter as a gesture of mercy. These are not persons who lived in the place prior to the State being established, and they are also not foreign workers in respect of whom the State is interested in their coming. There is a fear that if a country of refuge is compelled to confer nationality upon refugees it will refrain from giving help and opening its gates to those who are in danger. Accordingly, when reference is to refugees, haste should not be made to compel the State of refuge to grant them citizenship. If, for example, it is decided that residence of five years in the State is sufficient to create a link of residence which mandates the grant of citizenship, then, in the case of refugees, the period of residence which will be a precondition for the grant of citizenship, should be much longer, for example, ten years. During this longer period there is a greater chance that these refugees will be assimilated outside the country of refuge-and if they fail to do so, the country of refuge will be compelled to grant them citizenship. According to this principle, the various countries in which Palestinian refugees have lived for over half a century would be obliged to grant them citizenship.

3. The Element of Consent in Granting Citizenship by Virtue of Residence

Our assumption has been that a person residing in a State is entitled to become a citizen, and in the absence of the precondition of residence, a person cannot become a citizen. However, can a State compel a person residing in the State to accept citizenship?

The process of obtaining citizenship by means of naturalization is designed to be voluntary and not compulsory. In order to become a citizen, a person must apply to the State authorities, i.e., he must agree to become a citizen. Persons residing in a State do not always exercise their rights to citizenship. A phenomenon exists whereby people may live in a place for many years and still not apply to the authorities for naturalization. In the

United States, this phenomenon was prominent in relation to Mexican aliens whose naturalization in the United States would have led to the loss of their Mexican nationality, with the result that they refrained from applying to the immigration authorities of the United States for naturalization.140 Similarly, a phenomenon exists of persons, the center of whose lives is in Israel, however, in order to evade military service141 or for other reasons of convenience-such as, for example, until recently, evasion of foreign currency regulations 142-they enter Israel as tourists and apply for tourist or visitors visas.143 Each time the visa is about to expire, they will leave the country for a short period and enter again as tourists. De facto they live in Israel, however, this is not reflected in their legal status.

Notwithstanding this difficulty, in my view, it would be improper to compel a person living in a State to become a citizen. This must be a voluntary process. At the same time, duties which are imposed on citizens, such as military service or currency control or tax payments or any other duty, should also apply to people residing in Israel on a permanent basis. By this I do not mean that the duty will only apply to persons who have been officially granted the status of permanent residents, but also that it will apply to those people who actually live in the country, irrespective of their official status.144

The illegitimacy of forcing a person to acquire citizenship is also expressed in the conclusions of the UN Commission of International Law, which recently issued its Draft regarding nationality in cases of State succession. As noted, the Draft states that there is a presumption that in a new State, nationality is granted to everyone living within its borders.145 Concurrently, however, in an additional article, it is stated that this presumption is subject to the desire of the individual to acquire that nationality.

Article 11(1) of the Draft, which is entitled "Respect for the Will of Persons Concerned," says: "States concerned shall give consideration to the will of persons concerned whenever those persons are qualified to acquire the nationality of two or more States concerned."146

Article 8(2) of the Draft also refers to the agreement of the individual to acquire nationality: "A successor State shall not attribute its nationality to persons concerned who have their habitual residence in another State against the will of the persons concerned unless they would otherwise become stateless."147

Thus, under the Draft, a State which confers nationality must take into consideration the will of the individual whether or not to acquire that nationality, irrespective of whether the conferral of nationality is based on the principle of residence in the State. However, the State must only respect the will of the individual so long as his rejection of nationality will not result in his being stateless.

C. Residence and Citizenship by Virtue of Birth

Many people throughout the world never go through the process of naturalization and their citizenship is acquired by virtue of birth. Two possible ways exist of acquiring citizenship by virtue of birth: birth in the territory of the State conferring citizenship (ius soli) and being born anywhere to parents who are citizens of the State (ius sanguinis).148

Whether a child acquires nationality by virtue of ius soli or by virtue of ius sanguinis, there may be situations where he holds this nationality his entire life without having any residential connection to his country of nationality. For example, a child can be born in the United States where nationality is conferred by virtue of birth, and leave the United States while still an infant without ever having lived there. He will continue to remain a U.S. citizen for the rest of his life and will even be able to pass this nationality on to his offspring if he marries a person who is also a U.S. citizen.149 Another example would be where a child is born outside Israel to a parent who is an Israeli national (it is sufficient if one of the parents is an Israeli national) and he will remain an Israeli national for the rest of his life even if he never visits Israel.150

Professor Henkin criticizes this phenomenon of conferral of nationality by virtue of birth detached from the place where the person lives-both in relation to ius soli and in relation to ius sanguinis:

[I]t may be time to reconsider birth in the State as an acceptable basis for nationality in cases where place of birth is in fact not the same as long residence nor an indication of a voluntary "social contract" of commitment to the society. lus sanguinis may be an even less rational, less satisfactory basis where the State of the parents' nationality is not the individual's place of birth, residence or other link suggesting mutual commitment.151

In the light of my perception of citizenship as being based primarily on the place where a person lives, we can understand the difficulty pointed to by Professor Henkin. This difficulty also exists in relation to persons who become naturalized in a particular country

and leave it thereafter, choosing to reside in their country of origin or a third country for long periods of time.

The answer to this problem lies in revoking the citizenship of a person who does not live in the country of his citizenship for a significant period of time which is predetermined (for example ten years). Prima facie, this solution is problematic because it may create the legal reality of stateless persons while the (correct, in my view) trend in international law is to prevent in so far as possible the phenomenon of statelessness.152 However, this solution is possible if it is considered within the general framework suggested here. Thus, if international law compels every State to confer citizenship upon persons living therein for a defined period of time, then revocation of citizenship by a country in which the person does not live will not cause the person to become stateless. The person will be a citizen of the country in which he lives and in which he acquires the right to be a full member.

VI. CITIZENSHIP AND GLOBAL JUSTICE

Whether a country chooses to base its citizenship laws on nexus to the past or on nexus to the present and the future, citizenship laws in effect create a barrier preventing persons from becoming citizens of a country at will. On occasion, the barrier to full admission as a member of the State is directed towards people living in the country and located therein. In relation to this group, I showed in the previous section that long term residence in a State is a justified basis for the creation of the right of a person to become a citizen of the State in which he lives. On occasion, the barrier to the conferral of citizenship is directed towards people who are not located within the State. The State prevents people from entering for lengthy periods, for the purpose of immigration, and as a result they do not obtain the opportunity to become citizens of the State. In other words, immigration and citizenship laws by their very nature and character discriminate against people who are located outside the State, in that they prevent some of them from entering the State and becoming citizens, notwithstanding that they wish it.

One way to confront this problem is to refer to justice from a local communal perspective and not from a global perspective-in other words, not to regard global discrimination as a reality which requires improvement, as justice must be examined from the point of view of the community. In the words of Dworkin: "[W]e treat community as prior to justice and fairness in the sense that questions of justice and fairness are regarded as questions of what would be fair or just within a particular political group."153

A second approach is to examine justice from a global vantage point as opposed to the community one. Professor Haim Ganz described this succinctly in his article on the Law of Return:

The answer to the question to what extent the enactment of such laws impairs the important interests of people whom they discriminate against-is largely dependent on an understanding of the moral position of States and peoples, one in relation to the other and in relation to the individuals who are counted with them; this is because laws of return are political laws which discriminate between

individuals on a national basis. In the light of the fact that the map of the countries of the world does not overlap the map of the peoples and that most of the countries of the world are multi-national, this discrimination may be acceptable only on condition that those discriminated against by such laws in certain countries will be treated preferentially by such laws in other countries. Accordingly, questions relating to the justice of laws of return are necessarily not only questions of political justice, but also of global justice.154

Even when the laws of immigration are not based on national principles which originate from nexus to the past but rather on principles of nexus to the present and the future, for example, unification of families, essential labor, and the like, situations still arise whereby people wish to enter the country, but the immigration laws discriminate against them and refuse them admission. Here too, as in discrimination on a national basis-such as on grounds of return-once the perception of justice is global there is a need to consider the justifications for such discrimination.

In the view of Ganz, a State has the right to discriminate between people and refuse to allow admittance to some who wish to acquire nationality, so long as those discriminated against in one State are made the subject of positive discrimination in another State.155 According to my approach whereby residence in a State provides a ground for compelling a State to confer nationality, even if certain people wish to immigrate into a particular State and the latter refuses to assimilate them, then the State in which they live is required to grant them nationality. Accordingly, there is no defect from the point of view of global justice in the existence of immigration laws which restrict admission and absorption into a particular State, whether these