residence and citizenship-for-investment programs1 and the interests of the investors themselves are perfectly legitimate starting points. Yet, while states usually benefit from great resources in their program design, as well as from the scrutiny of the proposals in the context of the political process, individual investors cannot boast the same level of empowerment and are in need of clear and reliable advice. Opting for placing an emphasis on the person, rather than on the state, Henley & Partners has thus made the right choice: this is precisely the most needed and also the most justified starting point to adopt in approaching the evaluation and ranking of residence and citizenship-by-investment programs.
The fact that a need has arisen to rank these programs testifies to the changing realities of the global understanding of citizenship and residence that the world is currently going through. Crucially, the global assent of residence and citizenship-by-investment is not the cause, but a consequence – as Professor Spiro also underlined2 – of the changing perception of the core of state power and the relationship between the individual and the state: in the majority of the countries around the ‘Western’ world we, the citizens, are being freed from the ‘suffocating bonds’. States, from a presumed and unalterable given – the role they used to play in human lives – become an object of choice and contestation.
This is what I would like to present a glimpse of here: the rise of the programs in question is far from haphazard and is backed by clear legal-historical roots, which are connected – in the most direct way – with the contemporary legal-philosophical understanding of the nature of the state, of human worth, and the idea of liberty. In short, a quasi-sacred nature of the state as well as the idea of citizenship and residence as the two primary ways to establish the ties between an individual and a state authority, came to be naturally contested towards the end of the 20th century. This process, which is ongoing, triggered a global rethinking of the essential meaning of the individual-state connection: the ‘inevitable lightening of citizenship’.3
Our world is a reflection of ideas4 and the idea of the state is, potentially, one of the most repugnant of them all,5 despite it being so much a part of our reality that, as you would expect, it is constantly taken for granted. At the origin of states and nations lies ‘creating or elaborating an “ideological” myth of origins and descent’.6 In Mythologies Roland Barthes explains that myths are not important for the story they tell, but for what they do.7 The identity side of citizenship works in exactly the same way. Although the myth itself is always absurd: ‘nationality is to a greater or lesser degree a manufactured item’8 – ‘l’oublie et l’erreur historique’9 – the identity’s perceived true nature is not thereby undermined, ensuring that people are ready to sacrifice it all, mourir pour la Patrie.10 While states and nations significantly contribute to human social organization, the ideological stances about their eventual ‘inherent good’ should be dismissed outright: a state or a nation cannot legitimately be approached as possessing any sacred value. This triggers numerous important questions, especially in those contexts when the willingness to die for the state abounds. ‘If national allegiances can be based on false beliefs, how is it possible for a purportedly rational institution such as morality to accommodate them?’11
The same applies to citizenship. Unquestionably a truth created by law,12 being a citizen depends, to a lawyer at least,13 on one and only one thing: the possession of the status of citizenship in accordance with the law of a particular jurisdiction, to which certain rights can be attached. Just like ‘nationality’ or ‘state’, ‘citizenship’ is a notion with no ethical content, notwithstanding constant ideological spectacle surrounding it.14 The core element of citizenship is exclusion15 and the grounds for inclusion are as variable as they are random.16 There is no objective truth in who should belong and who should not – any principle accepted in a particular society can necessarily be criticized or overturned.
The same largely applies to the legal notion of residence, which knows many forms and is not to be confused with presence in the territory. Residence is by definition elusive and, like citizenship, comes with a thick bundle of popular assumptions, as well as legally-consequential duties and entitlements. These can be held by an individual even in the legal contexts where residence and presence do not overlap.
Residence and, especially, citizenship, are thus profoundly problematic concepts. These problems, once realized and set against the background of the growing importance of tolerance and human rights, as well as the general rise in the world migration which increases the exposure of people and groups with radically diverging world views to each other, result in the remarkable erosion of citizenship’s substantive content which can be observed over recent decades. Citizenship and residence are in the middle of an important transformation. Neither of the two is ‘good’. Neither of the two is ‘sacred’. While the states came to be more perceptive and tolerant of the actual differences between their citizens as human beings,17 the obligations of citizenship started fading away,18 just as the right to be left alone received prominence: citizenship is now a sparer notion than it has ever been: the state cannot tell you whom to be, it respects who you are.19
As a result, we are witnessing a certain rise of residence to prominence: as citizenship is thinning, residence has been thickening in a contrarian development, partly replacing citizenship’s role of a legal connector between the individual and rights. Residence now grants access to non-discrimination claims in the ever-expanding number of important contexts; it comes with an articulated bundle of rights, including social rights even – and is recognised as greatly important also in relations between states, as legal residence in certain countries can even be the basis for visa-free access to others.
Notwithstanding the fact that such a presentation is necessarily somewhat exaggerated, it is unquestionable that liberal democracies are having a hard time justifying their own non-existent ‘uniqueness’, which, in the heyday of the nation-state, was simply presumed and formed the patriotic core of citizenship. It is now clear to the Dutch that they are in no way better – by virtue of being Dutch – than the British or the French are:20 citizenship is now developing in the direction of becoming a purely legalistic status and it cannot be otherwise.
Viewed against this general context, the rising trends of citizenship-by-investment and residence-by-investment are truly illuminating, as they exemplify the practical nature of the two concepts in the world where the word ‘sacred’ – previously applied to the state and the logic of belonging, has progressively fallen out of use.
It has been a true privilege for me to participate as an expert and to contribute the introduction to this study – now already in its second year – as its interest and illustrative potential stretches much further than a simple ranking of a handful of investment programs: it is a testimony to the changing nature of the ties linking persons to authority in the contemporary world.
Prof. Kochenov holds a Chair in EU Constitutional Law at the University of Groningen, Faculty of Law; is a Visiting Professor of the College of Europe (Natolin) and chairs the Investment Migration Council (IMC).
During the 2015–2016 academic year Prof. Kochenov is the Martin and Kathleen Crane Fellow in Law and Public Affairs at the Woodrow Wilson School at Princeton, teaching a seminar on citizenship. He has published widely on different aspects of comparative and European citizenship law, and migration regulation, and consults governments and international organizations on EU Constitutional Law and citizenship issues.
1The perspective adopted by Madeleine Sumption in her chapter in this report
2P Spiro, Cash for Passports and the End of Citizenship (EUI RSCAS Working Paper 2014/1 (A Shachar and R Bauböck (eds.)), 2014, 9)
3C