Citizenship as Legal Infrastructure

Abstract

Whenever a person intends to cross a border, citizenship de facto determines—more than any other status—whether that person can enter the territory of another state. Yet, despite its ubiquity and centrality within global mobility infrastructures, the exact mechanisms through which citizenship shapes human movement on the planetary scale remain surprisingly ambiguous. This Article examines the multifaceted ways in which citizenship operates as an organizing principle within the complex of rules and norms governing transnational human mobility, including how the increasing acceptance of dual nationality status and the emergence of citizenship-by-investment schemes reverberate throughout the legal infrastructure and create new pathways for elite mobility. Using citizenship as an exploratory lens, the Article thereby seeks to theoretically complement and nuance existing scholarship in migration and mobility studies, arguing that physical space remains the dominant structure for human mobility. As we show, legal infrastructures reconfigure access to human mobility in ways that simultaneously fragment and compress physical space as it pertains to transnational movement.

A. Introduction

Technological advances have made transnational human movement easier than ever.¹ For the first time in history and for large parts of the global population, transnational mobility² is both relatively safe and affordable.³ As a result, human movement has risen enormously in the past three decades,⁴ with yearly border crossing estimates now close to three billion globally.⁵ Tourists make up a striking eighty-two percent of all transnational movement, international migrants 16.9 percent, while refugees and asylum seekers comprise less than one percent.⁶ Yet, despite borders being crossed by more people and at a higher frequency than ever before, human mobility has not become more global in nature, nor have borders become more permeable in recent years.⁷ Increases in transnational movement are, on the contrary, primarily driven by a small minority of privileged citizens who travel more often and to more destinations, while the majority of the global population is increasingly limited in their ability to move beyond the territory of the state to which they “belong.”⁸

Coinciding with this global mobility divide, recent empirical observations have shown that transnational mobility—contrary to popular belief—tends to cluster within, not across, geographical regions.⁹ Research by Deutschmann and Recchi shows that around eighty percent of all transnational mobility happens within world regions, and only twenty percent between regions.¹⁰ In other words, international human mobility is in fact not particularly global, or inter-regional, in nature, but overwhelmingly regionalized. While annual cross-border movements have steadily increased over the past decades, longitudinal data going back to the 1960s point to the regionalized spatial pattern of transnational movement being remarkably robust across time.¹¹ Based on these observations, Deutschmann & Recchi conclude that physical space remains the dominant structure shaping transnational movement and that the notion that human mobility has undergone a “death of distance”¹² or a “time–space compression”¹³ is empirically unfounded.¹⁴

The robust relationship between human mobility and physical space over time is a remarkable finding. It has significant implications not only for scholarly explanations of major shifts in immigration law and policy, as linked to for example the advent of “jet age asylum-seekers,”¹⁵ but also for ongoing policy discussions in many Global North countries, which for decades have remained wedded to a “deterrence paradigm”¹⁶ and rarely, if ever, consider how transnational migration control and legal mechanisms of non-entrée might obstruct free movement arrangements in other parts of the world.¹⁷ The conclusion drawn by Deutschmann and Recchi, however, seems to miss the other side of the equation—namely the extent to which complex webs of law related to, for example, immigration, travel, and deterrence themselves reconfigure transnational spaces for human mobility. It is not geographical distance, a lack of economic capacity, nor historical similarities that deter, say, Mexicans from crossing the border into the United States, North Koreans from entering South Korean territory, or Tunisians from entering the Schengen Area. In each of these cases, an assemblage of domestic, regional, and international laws creates additional sociotechnical barriers for mobility between otherwise proximate geographies.¹⁸

Without refuting the empirical observations around the enduring centrality of physical space or “distance decay” for human mobility,¹⁹ a central premise for this Article is that transnational movement cannot be reduced to a function of “spatial nearness” alone. In each of the examples above, law—together with its associated material configurations of border controls,²⁰ transportation services, airports and harbors—determine which borders a person can cross, how quickly they get to pass, for what purpose, and at what cost.²¹ Laws related to human mobility, in other words, both fragment and compress geographical distances, and as such significantly reshape global mobility patterns. This speaks not only to law’s infrastructural properties, but also to how, beyond geography and technology, law today has become a central organizing medium for the mobility not only of people, but also of goods, money, and information.

Yet, despite its ubiquity, the mechanisms by which law shapes human mobility on the global scale remain unclear and often obscured. Rules related to human mobility are dispersed across numerous fields of study—from human rights law, refugee and humanitarian law, through visa and diplomacy law, maritime and aviation law, labor law, immigration law, and nationality law, to name but a few.²² Traditional legal research on this issue is not only thematically and geographically skewed,²³ it has also remained largely siloed in terms of adopting regime-specific perspectives.²⁴ Consequently, we know surprisingly little about how legal mobility regimes interact and reconfigure in response to each other, and the outcomes produced by these dynamics.²⁵ Different calls have been made for more multidimensional and non-formalist approaches to the legal regimes that govern human mobility.²⁶ Recent research has already shown how legal mobility regimes indeed do interact and entangle in ways that may eventually impact and reshape its constituent parts²⁷ with both intended and unintended systemic effects for the evolution of international law.²⁸ For example, the so-called “human rights turn”²⁹ within international refugee law, and subsequent uptake of migration cases before regional human rights courts and international human rights bodies, illustrates how the two fields over the course of a gradual normative process have become so intimately interdependent that it is now virtually impossible to separate one from the other.³⁰

In contribution to this burgeoning scholarship, this Article aims to unpack some of the complexities that pertain to the “juridical puzzle”³¹ that is “global mobility law.” It does so in two steps: The first section considers the benefits and pitfalls of approaching an inherently fragmented legal field such as mobility law as a legal infrastructure and, through this lens, reconnects existing scholarship on human mobilities with a legal perspective on how interlocking norms reconfigure physical space and mobility patterns. In the second section, we argue that citizenship provides a particularly useful analytical entry point for understanding the distributive effects of this legal infrastructure. As the legal status connecting person and state, citizenship not only serves as the prime determinant of individuals’ legal access to and range of transnational mobility, ³² but also functions as an organizing principle across the wide array of different rules and norms governing this area. Finally, we turn to how the legal infrastructure for citizenship itself is evolving through an increasing acceptance of dual nationality status across jurisdictions, and specifically how this creates new mobility pathways for a small global elite capable of navigating the opportunities this affords them.

B. The Legal Infrastructure of Transnational Mobility

A central theme in this Special Issue concerns the benefits and pitfalls of approaching assemblages of legal regimes as legal infrastructure for the purpose of improving current understandings of the interplay between law and socio-material dynamics.³³ Despite the ontology of “infrastructure” becoming increasingly open-ended within the social sciences, the notion that formally different laws—in this case pertaining to human mobility—operate as one still requires an expansive view on how law and infrastructure come together, affect each other, and their individual ontological meanings³⁴—which is clear for neither.³⁵ Infrastructures have been described as “matter that enable the movement of other matter,”³⁶ “the grounds on which other technologies can operate,”³⁷ or as “material systems of substrates”³⁸ working invisibly to make “other things work.”³⁹ Today, however, infrastructure terminology pertains as much to railroads, roads, and harbors as it does to the socio-technical distribution of digital information or financial ecosystems.⁴⁰ Despite this enlargement of its terminological meaning, a certain insistence remains consistent within the literature: Infrastructures are, at some level, human-made—something built as opposed to natural.⁴¹ In addition, infrastructures are defined as much by their structure as they are by the set of “relations, processes and imaginations”⁴² that connect their component parts; “they are things but also the relation between things.”⁴³ Enfolding and overlapping in multiple coexisting systems, infrastructural relations are often both recursive and entangled.⁴⁴ Personal access to the internet, for instance, relies on a computer connected to a host of network cables in the ground—both of which rely on electricity, which relies on power plants, which are in turn controlled by computer systems. Here, computers are both the parent and child of the systems that facilitate access to the internet. An infrastructure is thus not a hard-shelled system, “[n]ever a ‘thing’”⁴⁵ on which a particular set of functions or technologies operate, but always in a relationship or an infinite regress of relationships.

To speak of global mobility law as infrastructure in this vein may be met with opposition from certain scholars, arguing that the field lacks the kind of “formal or coherent multilateral institutional framework regulating states’ responses to international migration” that one would normally expect from international law.⁴⁶ Aleinikoff suggests that the field of international migration law “may well be conceived of as a body of legal norms of substance, but not one of architecture.”⁴⁷ Mégret questions whether the global body of law pertaining to human mobility might be more of a “law of obstacles to human mobility than a body of law premised on a more fundamental commitment to freedom of movement,”⁴⁸ and Chetail emphasizes that the architecture of international migration law is so contradictory, distorted, and asymmetrical that the legal field is better described in deconstructionist terms.⁴⁹ Shortcomings in terms of both codification issues and uneven ratification of existing instruments has led to arguments that “[w]hen it comes to human mobility, only refugees are the object of a legal regime.”⁵⁰ The legal framework for human mobility is indeed—as Lillich describes it—“a giant unassembled juridical jigsaw puzzle,” for which “the number of pieces is uncertain, and the grand design is still emerging.”⁵¹

Yet, it is precisely for these reasons that an infrastructural lens may be useful. First, in contrast to more doctrinal approaches invariably emphasizing normative gaps and fragmentation, an infrastructure approach enables us to explore normative connections and conjoined impacts between formally separate legal regimes. Ascertaining a person’s access to transnational movement only really makes sense when considering how different laws interoperate.⁵² In his article elsewhere in this Special Issue, Frédéric Mégret traces how travel visas have become a “ubiquitous legal infrastructure” for everyday mobility, with broad-scale and heavily skewed impact on global mobility.⁵³ On their own, however, visa rules are largely ineffective in preventing the physical arrival of, for example, asylum-seekers, thereby triggering core obligations of prospective host states in the Global North. The enforcement of visa rules instead depends on other legal constructs. The most important being the global spread of carrier sanction legislation, by which commercial travel operators are fined for carrying passengers without proper travel authorization. This has led to a de facto privatization of migration control, requiring airlines across the world to perform extensive pre-embarkation screening and registrations.⁵⁴ Another is the host of bilateral and cross-regional agreements between the Global North and transit and origin countries, enlisting national authorities in these states to perform exit or en route document and migration control.⁵⁵ It is only through the interaction between these different legal constructs that the osmotic “filtration” instigated by visa regimes gains its practical significance for (in)access to transnational mobility.⁵⁶ And it is only by bringing these different elements—of which the above-mentioned are only a few examples—into constellation that we may appreciate what Shachar terms the “shifting borders of the twenty-first century,” by which the physical enforcement of mobility restrictions in the form of border control is no longer based on affixed territorial markers, but rather subject to prosperous states’ constant utilization of sophisticated legal tools to either selectively restrict or incentivize particular mobility patterns.⁵⁷

Second, a legal infrastructure approach underscores that mobility law—like all infrastructures—is not a hard-shelled system operating within a vacuum, but a structure inextricably linked to other mobility determinants and wider normative structures. Mobility law both shapes and is being shaped by socioeconomic, spatial, and material structures that pertain to human mobility.⁵⁸ Just as geography and technology have historically shaped spatial accessibility,⁵⁹ social structures—whether legal, socioeconomic, or material—form their own topographies of accessibility. Free movement of people regimes (“FMPRs”) are a case in point. As legal constructs, the European Schengen Zone or the South American Common Market (“MERCOSUR”) are often hailed as liberal models that enhance social circulation by limiting states’ capacity for restricting the entry of foreigners into their territory.⁶⁰ Yet as “macroterritorializations”⁶¹ formed along socioeconomic divides, FMPRs not only promote social circulation internally, but are equally legal arrangements that reconfigure social stratifications and economic divides by simultaneously hardening external borders.⁶²

In our context, the legal infrastructure actively distorts and reorganizes physical mobility pathways, rather than merely reflecting pre-existing or “natural” boundaries. On the one hand, this may serve to compress physical distances by creating specific mobility corridors or “legal wormholes” facilitating specific patterns of transnational movement. Consider, for example, the bilateral visa waiver agreements between Australia/New Zealand and European countries, the web of bilateral transnational labor agreements between the Gulf and various countries in Africa and Asia, or the so-called China–Ghana corridor. Each of these are legal arrangements that have reshaped mobility flows by facilitating cross-regional movements. Vice versa, legal infrastructures in many cases carve up and obstruct human movement between otherwise proximate territories. Consider, for example, how EU enlargements in both 2004 and 2007, and the subsequent Schengen processes, created new “hard borders” in parts of Eastern Europe, which previously had enjoyed free movement—literally splitting villages along the new Schengen border down the middle.⁶³

These dynamics can be observed on larger scales as well. International tourism, student mobility, and labor migration are all characterized by a “global mobility divide”⁶⁴ produced and sustained by law. The evolution of visa-waiver rules have meant that travel opportunities have increased for citizens of OECD countries over the past forty years, but have stagnated or diminished for citizens in less affluent countries.⁶⁵ Across the same period, visa costs have become almost perfectly inversely proportional to the GDP of a country: Low for citizens of wealthy countries—if not waived entirely—while citizens of poor countries pay exceedingly more for a visa in both relative and absolute terms, in some countries costing more than an average monthly income.⁶⁶ Finally, increasingly high visa rejection rates for citizens of low-income countries exacerbate the mobility divide. Forty to fifty percent of visa applicants from Ghana, Senegal, and Nigeria are, for example, rejected in the EU.⁶⁷

In sum, even if eight out of ten transnational movements do occur intra-regionally, it would be reductive to conclude, as Deutschmann and Recchi do, that transnational movement is predominantly structured by physical space.⁶⁸ What is missing from this interpretation is that legal infrastructure (re-)configures mobility opportunities across any “portion of the surface of the globe.”⁶⁹ Laws related to transnational mobility in many cases do sustain intra-regional movement—either directly, such as in the case of regional free movement arrangements, or indirectly through corollary barriers for mobility between world regions. Yet, at a more fundamental level, mobility law enables exactly the kind of “time-space compression”⁷⁰ that Deutschmann and Recchi seek to refute—on the one hand, it establishes distinct mobility corridors across world regions, and on the other it carves up hard boundaries within historically important spaces of transnational mobility. The importance of law in this context is not a new insight, even among social scientists. Sociologists such as Torpey have insightfully pointed to visas and passports as means of “population movement control” through which states “monopolize the legitimate means of movement.”⁷¹ Yet, in both law and other disciplines such analyses have largely focused on singular legal regimes. The significance of an infrastructural approach in this context is thus first and foremost to draw out the structural and accumulative effects of law in shaping transnational mobility patterns.⁷² It enables a combined perspective on how laws related to mobility produce “differentiation, stratification, and hierarchy”⁷³—not just in terms of geography and space, but equally in relation to elements such as nationality, class, and socio-material conditions.⁷⁴ Second, by foregrounding law as a particular type of infrastructure, our approach brings attention to the complex interplay between different bodies of law and how changes in one legal regime may reverberate across several others, ultimately producing system-wide reconfigurations. In the following sections, we turn to illustrate each of these dynamics using citizenship as an explorative frame.

C. Citizenship and (Im)Mobility

Moving beyond regime-specific perspectives to consider the wide array of laws related to human mobility as forming a particular type of infrastructure presents an immediate analytical challenge. Like other large-scale infrastructures, it is much easier to offer examples of mobility law’s structuring role or its impacts from an experiential basis than it is to neatly delineate its boundaries or attempt to perceive its totality.⁷⁵ Within infrastructure studies this problem has led to a host of different analytical strategies, from vertically unearthing different layers (“substrata”) of infrastructure,⁷⁶ to shifting attention to the activities and actors that enable infrastructures to function (referred to as “infrastructural inversion”).⁷⁷ The solution offered here is more horizontal, namely to exploratively trace particular nodes of the legal infrastructure—in our case those related to citizenship. Building on the notion that all infrastructures are “distributions of features or qualities along several axes,”⁷⁸ we argue that citizenship operates almost as an axial centerpiece within the legal infrastructure of mobility. As both a medium and outcome of the assemblage of rules, norms, and institutions that regulate human mobility, citizenship is in one way or the other connected to most, if not all, legal regimes pertaining to human mobility. Beyond its role within mobility law, citizenship also influences global mobility across socioeconomic, spatial and material dimensions. Indeed—as we will come to see—once approached for its multidimensionality, citizenship, more than any other social or legal status, determines the extent to which an individual can move freely around the world.⁷⁹ For this reason, citizenship serves as a particularly useful lens to explore, examine, and ultimately elucidate how law shapes human movement on the planetary scale.

In the following, we thus examine how citizenship operates within the legal infrastructure for human mobility. Specifically, we highlight five central mechanisms through which citizenship structures global patterns of (im)mobility. First, while in most states citizenship confers on its holder an—almost—unconditional right to reside and move within the territory of the granting state, citizenship is simultaneously leveraged to disenfranchise large parts of the world’s population from moving beyond the borders of the state to which they “belong.” Because only citizens can move, reside, and work within the borders of the issuing country without fear of deportation,⁸⁰ citizenship offers on the one hand an unrivaled degree of freedom of movement within the territory of the citizenship-granting state, yet on the other it is a status that effectively ties people down to the physical locality recognized as the territory of the issuing state. Second, citizenship indirectly provides its holder with varying degrees of extraterritorial mobility privileges, that is legal permissions granted by other states to cross into territories other than that of the citizenship-granting state. Extraterritorial mobility privileges are the reason why, for example, a French citizen may settle or travel in large parts of the world visa-free, while a Somalian can only travel visa-free to a handful of countries—most of which are other African states.⁸¹ As both bilateral and multilateral visa waiver programs and domestic visa rules almost exclusively differentiate based on nationality status, extraterritorial mobility privileges pivot on citizenship. Third, more subtly and on a smaller scale, nationality status shapes transnational mobility as an increasingly important criterion across a range of other international legal regimes, including refugee law, human rights law, and statelessness law. Fourth, citizenship determines not only where a person lives, but also from where a person’s transnational movement may begin, exhibiting profound impacts on both the spatiotemporal and economic costs of—and access to—transnational movement. Finally, we consider how two recent and intersecting legal developments in nationality law—namely the increasing acceptance of dual nationality status and the emergence of citizenship by investment (“CBI”) schemes—might reverberate throughout the legal infrastructure of transnational mobility and create new mobility pathways for economic elites.

I. Citizenship as Mobility Disenfranchisement

Although empirical research shows that transnational movement predominantly occurs within world regions, it says little about the large demographic left entirely out of such statistics because they do not move transnationally at all. With respect to spatial mobility, the starting point and principal feature of citizenship is that it is a legal status that ties people down to the territory in which they were born—a “spatial fixation”⁸² of the individual to the geographically delineated area internationally recognized as under the rightful sovereign control of the state.⁸³ While this may contradict the lived experience of say, a Danish or Singaporean citizen, who precisely because of their citizenship can travel to more countries than ever before, it is here crucial to emphasize that while a few “super citizenships” may indeed provide access to a plethora of transnational mobility opportunities, nationality status per se is never the source of such extraterritorial mobility privileges. Rather, extraterritorial mobility springs from, and is thus contingent on, other states granting such mobility privileges based on either domestic law, bilateral or multilateral agreements. Ultimately, access to another territory is always a privilege contingent on the hospitality of a receiving state and never a right deriving from citizenship. With respect to transnational mobility, citizenship represents at its core rather immobility—a legal and ultimately physical confinement of the individual to the territory of the issuing state.⁸⁴ The fact that most states today grant their citizens a right to leave their own country⁸⁵ has not changed this fundamental aspect of the citizenship–mobility nexus, as the exit from one country always relies on the entering of another. In the absence of a permissive right—such as a visa—to enter another country, the legal infrastructure of mobility works to ensure that people remain where they hold citizenship. From this perspective, the minority of the global population who, due to the color of their passport, may travel and reside within large parts of world are thus not transnationally mobile because of their citizenship, but rather because of mobility law having been organized around citizenship.

That citizenship ties people down to territories is abundantly evident in the spatial distribution of the global population. As shown by Milanovic, a hallmark of the spatial distribution of the global population is indeed that people overwhelmingly live where they are born.⁸⁶ When coupled with the fact that international migrants account for less than four percent of the world’s population⁸⁷ and citizenship acquisition after birth remains an exceptionally rare occurrence—currently accounting for less than two percent of all citizenship statuses in the world⁸⁸—the absolute majority of the global population not only live where they are born—they live where they hold citizenship. The fact that transnational movement has soared tremendously over the past decades⁸⁹ is not an indication that this territorial confinement prompted by citizenship has lessened. On the contrary, it is a testament to, on the one hand, the technological ease and affordability of cross-border travel today, and, on the other hand, the unprecedented degree of access to visa-free movement that a small minority of the world’s more privileged citizens enjoy. For the absolute majority of the global population, freedom of movement exists only within the geographically delineated area, territory, to which they “belong”—and in some cases not even there either.⁹⁰

II. Extending Mobility Privileges Through Citizenship

In reverse, the second mechanism by which citizenship shapes transnational mobility is as the medium through which extraterritorial mobility privileges—the legal permissions granted by other states to cross into territories other than that of the citizenship-granting state—are distributed.

As shown by empirical research on visa waivers⁹¹ and visa costs,⁹² access to transnational mobility is today both regionally stratified and highly unequally distributed, producing a “global mobility divide” between the Global North and South⁹³ or indeed “multiple regional mobility divides in an increasingly multi-polar world.”⁹⁴ Whereas a Norwegian or Singaporean citizen may effortlessly travel large parts of the world, the average Sudanese or Pakistani citizen has very limited legal options for moving beyond the territory of their state.⁹⁵ For a variety of reasons,⁹⁶ most countries design their domestic visa and immigration rules to deliberately “filter out” citizens from low-income countries such as Sudan or Pakistan. This kind of differential treatment based on nationality status has long been a hallmark of the global visa regime, which, in the words of Czaika et al, can be seen as “systems of institutionalized discrimination based on nationality,” justified from a logic of “protecting the exclusive residency and political rights of citizens.”⁹⁷ While principally nationality-based, EU visa policies have further been shown to strongly correlate with ethnic, religious, class, and gender divides, fueling arguments that visa rules broadly violate non-discrimination principles.⁹⁸ Within legal scholarship, Spijkerboer has argued that a legal infrastructural approach may precisely aid such arguments by bringing attention to the intimate connections between different rulesets and their combined effects, ultimately pointing to international law’s “partisan character” in sustaining a marginalization of mobility rights for large parts of the world’s population along these lines.⁹⁹ According to den Heijer, the legal proceedings around the 2017 US travel ban, which targeted predominantly Muslim countries, show some potential for concrete actions in this regard—even if a revised policy ultimately was accepted by the US Supreme Court.¹⁰⁰ At the same time, however, concrete attempts to challenge this status quo face the obstacle that international law has for more than a century granted states an extraordinary degree of leeway to adopt differential treatment based on citizenship, not just in migration law but on a range of different issues.¹⁰¹ Indeed, the way in which mobility law has historically developed through webs of bilateral or regional agreements reciprocally extending certain rights and privileges to third-country nationals means that citizenship-based discrimination is effectively baked in. By formally classifying nationality as a non-hierarchical status, despite all evidence to the contrary, mobility law effectively allows states to circumvent evolving discrimination norms within the domain of territorial access.

III. Citizenship-Based Differentiation Across Different Mobility Regimes

Citizenship-based differentiation likewise plays an important, albeit more subtle, role for access to transnational mobility across several other international legal regimes, including human rights law, refugee law, and statelessness law.¹⁰² These are legal regimes usually celebrated as universalist exceptions to the principles of sovereignty and self-determination. Consider, for example, the international refugee regime: While refugee organizations in the Global North may insist on individual determinations of asylum seekers’ protection needs as part of national procedures, the reality in many large-scale refugee hosting countries in regions of origin is often strikingly different in terms of adopting prima facie or group-based recognition based largely on nationality.¹⁰³ In Europe, a similar approach was adopted in regard to Ukrainian refugees, again prompting arguments about differential treatment based on nationality.¹⁰⁴ Important in this regard was the EU’s prior extension of visa-free access for Ukrainian nationals as part of labor agreements, which not only incapacitated the EU’s existing model for asylum reception—the so-called Dublin system—but also highlights how nationality-based distinctions in one area of mobility law, labor, may ultimately come to determine responses in other areas, asylum.¹⁰⁵

Even within the ordinary asylum systems of many Global North states, there is an increasing tendency to short-cut legal niceties through collective procedures strictly based on nationality status.¹⁰⁶ As part of the recently adopted EU Pact on Migration and Asylum, many more asylum applicants will be subjected to expedited procedures if they are deemed nationals of countries with an acceptance rate of lower than twenty percent.¹⁰⁷ Vice versa, Frontex routinely refers to “a large number of false declarations of nationality among claimed Palestinian nationals, in particular by nationals from Maghreb (Algeria, Morocco) and Middle East countries (Iraq).”¹⁰⁸ While an asylum seeker potentially declaring another nationality may be incentivized by imaginations about their rights, the phenomenon ultimately reveals how the “right nationality” translates into refugee and human rights protection. As Itamar Mann notes, asylum seekers declaring a false nationality is not about seeking the cover of another nationality, but rather calls for “universal humanism”—being human “sans the added layer of citizenship.”¹⁰⁹ For those falsely claiming to be Palestinian, for instance, Palestine functions as “a symbol for crisis”; a locality so awful that it calls for the immediate protection for all those who come from there.

IV. Citizenship, Socioeconomic Status and Global Mobility

Our fourth perspective is that citizenship not only determines where a person lives, but also from where—in both geographic and socioeconomic terms—a person may embark on a transnational journey. While increasingly affordable, transnational movement remains a demanding financial expenditure relative to average income levels for most of the world’s population. As the average person’s socioeconomic capacity is increasingly, and in many cases almost entirely, determined by the country in which one is born, the importance of citizenship in this regard has only been magnified in recent years.

Traditionally, research on citizenship has concerned itself with the status within the nation-state entity. Foregrounding the rules for acquisition and loss of citizenship within general politics of inclusion and resistance, much citizenship literature focuses on citizenship as a legal reflection of citizens’ (in)ability to affect change in society, citizenship as a means of social inclusion—and exclusion—and citizenship as a tool for integration through equal rights, national belonging, identity, and civic responsibility.¹¹⁰ Rights-based approaches in particular have dominated citizenship literature over the past many decades, with countless variations of either Marshall’s formative conceptualization of citizenship as a bundle of political, civil, and social rights along with duties such as taxation, military service, and political participation,¹¹¹ or Arendt’s notion of citizenship as a “right to have rights,” a meta-right necessary for the protection of all other rights.¹¹²

In contrast, a growing critical strand of citizenship literature has approached citizenship as a distinct form of social closure—in both national, regional, and global contexts.¹¹³ Noting the lack of any sustained analysis of the relevance for citizenship in Weber’s concept of social closure, Brubaker, for instance, argues that closure—as embodied in a host of institutions and practices such as the territorial border, universal suffrage, universal military service, and naturalization—always pivots on the legal institution of citizenship.¹¹⁴ Only citizens have an unqualified right to enter and remain in the geographical space defined as a state’s “territory,” and naturalization—which governs access to citizenship status after birth—is itself restricted to the qualified. For these reasons, Brubaker argues, citizenship is both an instrument and object of closure.¹¹⁵ Spatially, citizenship excludes unauthorized non-citizens from the national territory; politically, citizenship excludes non-citizens from political decision-making; economically, citizenship excludes non-citizens from the labor market and welfare rights; socially, citizenship excludes non-citizens from the national community.¹¹⁶

Within this critical strand of literature, a particular focus is on citizenship as a driver of global socioeconomic inequalities. From different disciplinary backgrounds, scholars such as Joseph Carens, Seyla Benhabib, Aylet Shacar, and Branko Milanovic—and more recently, Dimitry Kochenov, Yossi Harpaz and Sara Kalm—have all argued that citizenship, in combination with the international system of passports and visa restrictions, reinforces global socioeconomic inequalities.¹¹⁷ Moving further in this direction, Mau argues that the institution of citizenship operates as a “global hierarchy of mobility,” designed to keep the masses from accessing the territories and limit benefits to a privileged few.¹¹⁸ Brubaker describes the institution of citizenship as an “international filing system” allocating persons to states.¹¹⁹ Perhaps most seminally, Shachar labels modern citizenship as a “birthright lottery,” in which life opportunities are bestowed on the essentially “morally arbitrary terms of where (ius soli) or to whom (ius sanguinis) one is born.”¹²⁰ Shachar’s criticism echoes that of Benhabib and Carens who for decades have held that citizenship is merely the “modern equivalent of the feudal privilege”—an inherited status that either greatly enhances or diminishes one’s life chances.¹²¹

When coupled with the fact that around ninety-eight percent of all citizenships today are granted by either bloodline (ius sanguinis) or territory (ius soli),¹²² the idea that citizenship is an inequality-perpetuating institution rests on a solid empirical foundation. The very same status which within the polity was “the antidote to the feudal privilege and barriers to internal movement,”¹²³ today propagates precisely the kind of hierarchical ordering of individual rights, worth, and freedom of movement in the transnational sphere that it was once designed to eliminate. Increasingly, as a legal institution, citizenship has produced “the naturalization of its own arbitrariness.”¹²⁴

This criticism has gained substantial empirical support from economists such as Branko Milanovic. Based on his comprehensive study of global income-level distribution, Milanovic explicates how the territory into which one is born is the single most important predictor of the level of economic prosperity one is likely to experience in life.¹²⁵ According to his study, two-thirds of income variability across country percentiles is governed by one variable: The country in which people live. For example, a person born in the United States will earn on average ninety-three times more than a person born in Congo. On this basis, Milanovic puts an empirical spotlight on the remarkable socioeconomic privilege that comes with a “top–tier citizenship”—what he terms the “citizenship premium.”¹²⁶ Furthermore, because socioeconomic inequalities are increasingly occurring in between states, as opposed to class–based within the state, citizenship—Milanovic argues—becomes a key driver for migration as “people born in poor countries will naturally seek their fortunes in relatively richer ones.”¹²⁷

This inextricable link between geography, citizenship and global socioeconomic inequalities has a profound impact on the nexus between citizenship and transnational mobility. As citizenship status determines where on the surface of Earth one may reside, citizenship ultimately also determines from where a person’s transnational movement may begin. This reflects not only the level of socioeconomic capacity one may leverage in the pursuit of transnational movement, but also in which corner of the physical world one’s travel begins. As the average person’s socioeconomic capacity increasingly varies based on the country in which one is born, the importance of citizenship for transnational mobility has thus only been intensified in recent decades. While gradually becoming more affordable, cross-border travel—and in particular cross-regional travel—is still a demanding financial expenditure relative to average income levels for most of the world’s population. With this in mind, we may think of citizenship not only as a legal infrastructure that distributes access to transnational mobility based on nationality status, but also as an infrastructure that co-shapes the socioeconomic position from where one’s transnational movement may begin in the first place.¹²⁸

V. Evolving Infrastructures: Citizenship Changing

Over the past century, the greatest transformation of modern citizenship has been imposed by the gradual “deterritorialization” of rights regimes led by the proliferation of human rights instruments.¹²⁹ The fact that most rights today are granted based on one’s humanity rather than one’s citizenship status stands today not only as a major triumph of the human rights movement, but also as one of the most foundational transformations of modern citizenship.¹³⁰ Despite historical and still reverberating hesitations of international human rights institutions to properly engage with migrants’ and foreigners’ rights,¹³¹ human rights law makes perfectly clear that rights protection cannot be based on citizenship status, but solely on territoriality and jurisdiction.¹³² By gradually dissociating rights from citizenship, human rights norms have increasingly challenged traditional conceptions of citizenship as a “right to have rights,” and prompted contemporary citizenship scholars to distill a new and altered meaning of citizenship in light of its historical, rights-based rooting.¹³³ A growing body of literature has in this regard pointed to citizenship undergoing an “instrumental turn.”¹³⁴ Approaching citizenship for its ability to increase personal mobility, quality of life, education, business opportunities, and tax advantages, Harpaz argues that we are in the midst of a shift towards a “new form of citizenship” driven by those with inferior citizenship’s quest for a “compensatory citizenship.”¹³⁵ Joppke argues that citizenship is undergoing an inevitable “lightening.” Characterized by a gradual thinning as a concept, “citizenship light”, he argues, is increasingly dissociated from the nationhood, rights, and exclusive allegiance that historically gave the status its weight.¹³⁶ Yet, while the importance of citizenship has undeniably diminished in recent decades in terms of political, civil, and social rights, the “lightening” of citizenship has, as Spiro points out, one significant exception: Mobility privileges.¹³⁷ With respect to transnational mobility, the particular nationality status one holds has only become more central in recent years.

In this final section, we turn, however briefly, to two recent and intersecting developments within citizenship law to illustrate how the legal infrastructure of citizenship itself might be changing in ways that will ultimately reverberate throughout the legal infrastructure, and deepen the global mobility divide by creating new mobility corridors and opportunities for economic elites.

Over the past two decades, a newfound consensus has emerged: While “land cannot belong to two states at the same time, […] people can.”¹³⁸ As a result, dual nationality status has gained widespread popularity in recent years, with the share of countries fully accepting dual citizenship increasing significantly.¹³⁹ Driven most strongly by origin country reforms on dual citizenship,¹⁴⁰ increasing from twenty-seven percent in 1960 to seventy percent in 2022, acceptance of dual citizenship is now a predominant trend in nationality laws across the world.¹⁴¹ This “liberalization of dual citizenship”¹⁴² is remarkable considering that until recently the idea of a person holding two citizenships was regarded as entirely incompatible with the foundational principles of state sovereignty. Citizenship, after all, marked an exclusive allegiance to the state.¹⁴³ This shift towards citizenship acquisition after birth no longer operating on “zero-sum” conditions, has opened the possibility for nationality statuses to be accumulated and leveraged for a number of different reasons. This includes the pursuit of improved rights and related economic, educational or other livelihood opportunities—as well as higher degrees of global freedom of movement. Catering to such interests, a commercialized market for citizenship has unsurprisingly emerged in recent years with some countries offering their national membership in return for a financial investment,¹⁴⁴ and various commercial brokers operating in this market.¹⁴⁵

Depending on the size of the investment, CBI schemes¹⁴⁶ exempt applicants from traditional naturalization requirements such as a period with permanent residence or employment in the country.¹⁴⁷ Gaining momentum over the past decade,¹⁴⁸ dozens of countries, most of them small islands in the Mediterranean, Caribbean, and South Pacific, today sell up to 50,000 citizenships annually.¹⁴⁹ While many states have for decades offered residence programs with fast-tracks for citizenship status,¹⁵⁰ the idea of states selling their citizenship for cash is both a novel and significant development with several potential repercussions. Some scholars have criticized CBI schemes for potentially distorting the interests and meaning of active membership within the polity, while others highlight the practice’s potential for exacerbating global inequalities by offering the “global elite” the means to unshackle itself “from any meaningful relation to a particular location.”¹⁵¹ Shachar highlights how both golden visas and CBI schemes exacerbate, rather than alleviate, “pre-existing economic inequality by distorting the opportunity for individuals to gain access to membership in safer and more prosperous nations.”¹⁵² In the context of wealth taxation, Piketty has described how “secession of wealth tends […] to obscure the very idea of nationality, since the wealthiest individuals can to some extent take their money and change their nationality, cutting all ties to their original community.”

There is no shortage of reasons as to why CBI schemes are increasingly popular and cater to the industry’s current “clientele.”¹⁵³ Research by Surak shows that individuals who purchase an additional citizenship are predominantly incentivized by the ability to travel visa-free to more countries.¹⁵⁴ Yet for those capable of purchasing it, an investor citizenship in Malta, for example, functions as a “gilded backdoor to Europe”¹⁵⁵ that offers not only a unique degree of visa-free mobility within European territories, but also the residency rights and privileges that come with an EU citizenship.¹⁵⁶ From this viewpoint, the acceptance of dual nationality and its enablement of a commercialized market for citizenship has indeed opened a new and attractive pathway for wealthy individuals to gain not only unrestricted global freedom of movement, but also the financial, cultural, and social benefits that often come with it. Not unlike Harvey’s notion of mobility, which foregrounds the expansionist nature of capitalism constantly seeking new ways to expand further and faster,¹⁵⁷ “golden passports” emerge as something catering to an elite for whom everything is increasingly within reach—even citizenship in a state where one never has nor intends to set foot. Conversely, some might argue that the marketization of citizenship could—at least in theory—reflect an imperfect yet progressive new form of naturalization. A way for minorities of economically affluent but otherwise mobility disenfranchised individuals to “unchain” themselves from the physical confinement enforced upon them by the citizenship status granted by birth—a naturalization mode that operates on market conditions rather than feudal principles.

Ultimately, the marketization of citizenship and the increasing possibility for individuals to hold two or more citizenships contribute to an increasing “strategization” of citizenship¹⁵⁸ by establishing a novel and significant pathway through which economic elites can leverage economic capital to become “kinetic elites.”¹⁵⁹ The current impact of CBI remain limited in actual practice. Dual nationality status remains a rarity on the global level—currently comprising less than two percent of all citizenship statuses worldwide, and CBI programs remain only economically feasible for a relatively small fraction of the global population.¹⁶⁰ Nevertheless, both still in their infancy, the legal acceptance of dual nationality status and the emergence of CBI schemes are today fast-growing global phenomena that foreshadow a potentially profound reconfiguration of the citizenship–mobility nexus. These developments may reverberate in unforeseen ways throughout the legal infrastructure of transnational mobility. However, by tethering access to particular citizenships to individual economic capacity, CBI schemes seem poised to drive yet another wedge into the global mobility divide, further bifurcating the global population into a small minority for whom the legal infrastructure increasingly facilitates transnational movement, and the global majority for whom the legal infrastructure is increasingly a source of mobility disenfranchisement.

D. Conclusion

In this Article we have underscored the significance of law in shaping patterns of transnational mobility on the global scale. We have shown this by, firstly, approaching the array of laws related to human mobility as a coherent legal infrastructure that operates to both facilitate and obstruct transnational mobility and thereby significantly reconfigure global mobility patterns. Secondly, using citizenship as an exploratory lens to analyze this legal infrastructure, we have outlined five central—yet often overlooked—mechanisms through which mobility laws increasingly pivot on citizenship. Each of these mechanisms serve to stretch or compress the physical world—establishing mobility corridors that explicitly enhance transnational movements between distant geographies or posing immense socio-technical barriers to transnational movement between otherwise proximate geographies. Elucidating how mobility laws unevenly distribute access to transnational mobility based on the nationality status of the traveler in question, we have sought to spotlight the legal infrastructure’s distributive and stratifying effects, with legal opportunities for transnational mobility increasingly distributed along socioeconomic divides.

As a centerpiece of mobility law, citizenship has provided a particularly useful analytical entry point for understanding the conjoined effects of this legal infrastructure. As shown, citizenship de facto determines not only the territories a person can access and reside in, but also the level of socioeconomic resources that a person may leverage in the pursuit of transnational movement. For a small “kinetic elite,”¹⁶¹ nationality status increasingly operates as a unique resource which enables them to navigate the legal infrastructure in historically unprecedented ways to maximize individual mobility capital. Yet, for the vast majority of the global population, citizenship and the swath of mobility laws orchestrated around it form an infrastructure of transnational immobility, with territorial borders transformed into tightly knit osmotic filters that selectively prevent almost all attempts of regular border crossing.

Without refuting the empirical findings by Deutschmann & Recchi that transnational movement remains overwhelmingly intra-regional,¹⁶² our overarching contention is thus that global mobility patterns are not resistant to “alterable social factors,”¹⁶³ but rather inextricably linked to and co-constituted by an assemblage of mobility laws, which ultimately both fragment and compress traditional notions of geographical space as it pertains to human movement.