Banishment and the pre-history of legitimate expulsion power

Abstract

In the introduction of a recent work on the denationalization of terrorists across the West, the legal scholar Audrey Macklin announced that "after decades in exile, banishment is back" (Macklin 2015). Over the last decade, as new laws allowing individuals to be stripped of citizenship have sprung up in states including the UK, Canada, Australia, Finland and the Netherlands, many others have also analogised denationalization to this medieval practice (Sassen 2015;Lenard 2019; Pillai & Williams 2017). By allowing states to deport their own citizens or, if present overseas, to prevent their return, denationalization, like banishment, enables states effectively to disown their members (Macklin 2015; Gibney 2013a;Mantu 2015).Scholars have recently given a great deal of attention to the question of why citizen banishment qua denationalization has returned to our political lexicon. Citizen expulsion has important implications for ideas of equal citizenship, democracy, and norms relating to statelessness

No Country For ‘Bad’ Men: Volatile Citizenship and the Emerging Features Of Global Neo-colonial Penality

“…Furthermore, such transferred, incomplete punishment initiated by (in many cases) developed Western states, exploits existing vulnerabilities of conflict-ridden states, and amplifies their dominated status. Gibney (2020) exposes the constraints of citizenship revocation in modern times caused by a lack of unoccupied territories, but this article nevertheless reveals the ways in which countries suffering from prolonged conflict which weakens their institutional framework and exposes them to non-state governance by militarized groups, effectively become the new terrae nullius for discarding undesirable citizens. Therefore, rather than depicting the appearance of global non-citizens as the inadvertent collateral consequence of enhanced global mobility, it is necessary to recognize the ways in which the (mostly) Western states consciously exploit existing pathways of dependencies of vulnerable states caused by their complex economic, political and institutional frailties.…”

“…Denationalization, therefore, is ideally conceived as a two-step process of disowning citizens and transferring them to a country of their 'residual' (Bolhuis and van Wijk 2020) citizenship (Macklin 2015;Mantu 2015;Esbrook 2016;Gibney 2020). While the process centres on transferring a person, it also importantly allocates control and responsibility over the person: 'deportees are… returned or repatriated to their country of membership rather than banished or exiled' (Gibney 2020: 296, emphasis in the original).…”

“…Gibney explains that modern denationalization is almost entirely 'constrained' due to a lack of unoccupied territories to which offenders could be sent, which effectively 'denies to the state a formal right to expel its own members as a punishment' (Gibney 2020: 278). The recent rise in denationalization is thus positively correlated with the rise in dual citizenship (Gibney 2020). Once considered an anomaly, multiple affiliations became increasingly accepted after the Second World War due to international migration, subsequently securing international protection (Spiro 2011).…”

The Dichotomy within Denationalisation: Perpetuating or Emancipating from its Discriminatory Past?

“…And while the modus operandi of current-day denationalisation is partially distinct from its predecessor modes, 4 recent contestations of both a legal, normative and historical nature suggest that contemporary citizenship revocation have not truly shaken off its discriminatory past. 5 Matthew Gibney (2019) has pointed to citizenship revocation laws in the U.K. as an example of how some denationalisation provisions continue to have discriminatory effects. 6 While underlying motives may vary from case to case, discrimination is often at the heart of the matter, when states strip citizens of their status and for this reason alone, the rise of denationalisation across Western liberal societies calls for scepticism.…”

“…Contemporary denationalisation operates in a different context than its historical predecessors and must navigate international obligations including the prohibition on the creation of statelessness. 69 Yet, 'doctrinal approvals' and the gradual acceptance of denationalisation laws that target dual citizens are in constant risk of 'human rights-washing' a practice that otherwise, by most normative accounts, is considered destructive to liberal society by propagating the misconception that denationalisation in the 21st century has somehow become morally 'right'. There is, in essence, nothing egalitarian about indirectly protecting the citizenship of a 'puritan' majority of citizens, while enabling the deprivation of citizenship from dual citizens who are often of another ethnicity, race, national origin or religion.…”