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Justifications for Nationality Based Rights and Obligations

-- By CodyHuyan - 22 Apr 2024

Introduction

We live in a world where our rights and obligations are defined by national borders. Nationality is our form of membership in a country. With the obtainment of membership comes rights and obligations. These rights and obligations are protected by rules of law unique to each nation. U.S. nationals are obligated to pay taxes and social security used to benefit members of the community, but these benefits are not extended to individuals in other nations. What justifies these nationality-based rights and obligations? This is the question Yael Tamir identifies in the modern liberal theory.

Yael Tamir's Associative Obligation Framework and Its Inherent Dangers

Tamir suggests that liberal theory itself is not enough to provide an answer and points to national ideals hidden in the liberal agenda. In exploration for an answer, she considers the contractarian approach commonly adopted by liberal philosophers in their perspective on modern liberal societies. Yet, she soon rejects the approach as an explanation for national obligations. Criteria of state membership prioritize birthright and kinship rather than individual consent. Since “political obligations in a liberal state are not assumed in as free and rational a process as is commonly argued” (Tamir 1995, p.130), the voluntary assumption of obligations does not necessarily imply consent. Thus, the social contract theory cannot fill in the missing component in the social contract theory.

Yael Tamir suggests that the only way to justify the assumption of obligations in liberal theory is to view liberal welfare states as communities that generate associative obligations, which derive from feelings of membership, rather than contractarian entities (Tamir 1995, p.130). There is a difference in formally being a member and feeling like a member: “The fact that we are citizens of a particular state, however is a necessary but not a sufficient condition for creating obligations. […] The second statement (‘X feels that he is a member’) is the one that carries the thrust of the associative argument, suggesting that one is bound by obligations because one sees oneself as a member” (p.134-135). Although the associative approach reasonably explains the formation of the sense of community required for the voluntary assumption of mutual burdens on a philosophical approach, dangers of its realistic application cannot be ignored.

The freedom to assume and discard membership and obligation is inherently dangerous to domestic governance and the enforcement of the rule of law. Tamir would agree that obligations to a nation include obedience to rules of law that are reasonably just (p.131). Suppose a Chinese American feels alienated in the United States and chooses to pledge allegiance to China instead, despite remaining a U.S. citizen formally. Following Tamir’s associative framework, he would be released from any obligations to the U.S. based on his feelings. Such discharge from U.S. obligations justifies the alienated Chinese American to disobey American laws in areas that differ from Chinese laws. This implication endangers the rights of other members that a nation is obliged to protect, as it opens the door to exploitation of jurisdictional differences of law. Rationalization of discharge from obligations to obey laws of a country that one is still a formal member of essentially invents a new form of legal defense that cannot be proven evidentiarily but must be accepted by the court. Whenever facing a charge that may be legal in another country, the defendant can simply claim that they had assumed obligations there at the time of the offense. Neither the timing nor accuracy can be evidentiarily accountable. Furthermore, the functioning of associative obligation framework requires accountability for the accuracy of laws of other nations, which is difficult to achieve in reality. The previous scenario of jurisdictional exploitation presumes a truthful application of another jurisdiction’s law. But what if the defendant simply chose a county of which the judge is unfamiliar with the law? Adjudication of offenses under the associative framework essentially require judges and attorneys to understand the language and laws of all countries to produce just judgments, which is an impossible ask.

An Alternative Cosmopolitan Approach

An alternative, perhaps, is to approach the question from a cosmopolitan point of view. Rather than independent entities, the world should be viewed as one exhaustive community, where birthright citizenship is nothing more than the same type of contingency that race, gender, or social class are. Nationality, then, is simply a governance mechanism to better facilitate and enforce the rights and obligations each person owes as a citizen of the world. Ultimately, irrespective of individual backgrounds and nationality, we all should be owed a common baseline of rights as human. Similar to race or religion base communities within a nation, who may hold themselves to a higher moral standard, only owe fellow citizens outside their group what the law requires; some countries may impose higher legal obligations upon their members but this does not necessarily interfere with the baseline that the world as a whole requires.

The approach seems to cure certain flaws of the associative obligation framework. The legal baseline adopted in the world community must necessarily be at the level of the lowest bar posed by any single “country”, or a bar uniformly agreed upon. Either way, a uniform basis of rights and obligations would eliminate legal enforcement difficulties created by jurisdictional differences. “Countries” may certainly opt to maintain a higher obligation requirement of its members, but such requirement will be merely moral and enforced by community norms. However, since no country will have a lower requirement than the uniform basis, freedom to assume obligations based on feelings of association will not become a fundamental vulnerability to social orders.

Conclusion

Though, the cosmopolitan approach is not free of flaws. The uniformity of law inevitably points towards a binding global enforcement agency. Elimination of jurisdictional exploitations require consistent interpretation, application, and enforcement of law, which would be best achieved by legislative and judicial bodies binding on every member country of the global community. Although guiding international organizations exist now, the envisioned governing mechanism requires another level of international cooperation and relinquishment of power from the superpowers, rendering the feasibility of the cosmopolitan approach debatable. Even if such governing mechanism can be employed, preservation of voices and rights of minorities and small “countries” will be continued issues just like racial and gender equality are now. But, perhaps, this attempt to justify nationality-based rights and obligations may motivate further explorations of the cosmopolitan approach and its realistic implications to present a solution to some issue we are currently facing in the world.

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