The government is getting ready to respond to a legal challenge from the European Commission to Malta’s passport-selling scheme. Judging by arguments by Parliamentary Secretary Alex Muscat, the government plans to argue that citizenship is a sovereign matter in which the EU cannot interfere and that it is up to Malta to decide who is or isn’t Maltese.

If ‘citizenship’ is the competence of national governments, then, surely, the matter stops in Valletta. But the Labour government already knows this isn’t the case. When they first wrote the citizenship for sale law, the commission challenged the Maltese government which made changes in the law to get their ‘approval’. That alone does away with the argument of competence. The Maltese government has already accepted (in 2014) that it isn’t entirely autonomous when deciding whom to call Maltese. It can’t ignore now what it recognised then.

There are two reasons why Muscat is wrong when he says that the Maltese government is not subject to international law in this.

Firstly, it is expected under international law for people recognised as citizens of a country to have some ‘genuine link’ with it. That idea was elaborated by the International Court of Justice in 1955. The case was about a Friedrich Nottebohm, born in Germany but living mostly in Guatemala. Just before the outbreak of World War II, he visited Liechtenstein and bought from that little country a new citizenship. Since he acquired a foreign nationality, Germany no longer considered him German. When he returned to Guatemala, he entered a country that was technically at war with his country of birth. They interned him and took away his property.

Liechtenstein sought to protect their new citizen but the International Court of Justice agreed with Guatemala that it is not enough for someone to pay to become a citizen of a new country. They need to show some meaningful connection with it if they expect other countries to respect the diplomatic protection their ‘new’ country gives them.

We cannot adopt policies that undermine our European partners or the European project itself- Manuel Delia

Now international law is hard to enforce but it is reasonable to expect countries that want to be trusted members of the international community to respect it.

Malta is an EU member state and European laws are not merely international here: they are our own laws. Consider what the Treaty of European Union says: “Pursuant to the principle of sincere cooperation, the Union and the member states shall, in full mutual respect, assist each other in carrying out tasks which flow from the treaties... The member states shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.”

Now try to fit this with Muscat’s argument that it’s up to us alone to decide who gets to be recognised as a citizen of this country. It isn’t.

The European Court of Justice, in a 2019 case about a decision by the Netherlands’ authorities on the granting and denial of citizenship, ruled that the “the principle of proportionality requires an individual examination of the consequences… from the point of view of EU law”. But, perhaps to illustrate my point, some analogies that may seem at first absurd should be looked at.

Analogy one:  I exchange with my neighbour the keys to each other’s back garden because we trust each other enough to help each other out if there’s a fire or one of us loses the keys. One day, I start selling tickets to loud parties in my house because in my house I’m king. Is it ok if I open my neighbour’s back door to let my party guests overflow into their garden as well?

Analogy two:  my neighbours ask me to go into their house to feed the cat every morning while they’re on holiday. While they’re away, I organise a party in their house which causes material damage to their property. Is it ok to say in my defence that the neighbour gave me their keys in the first place?

Analogy three: this one is more macro. Eire gives passports to anyone born in Northern Ireland who wants to be recognised as belonging to the southern republic. What if Poland were to decide to grant citizenship to anyone born in Ukraine because it’s pining for a mythical Greater Poland? Would we have a right to complain that, overnight, so many new millions have been given the right to roam freely throughout Europe?

The whole point of this is that it is true that every European member state has the power to decide who is to be the citizen of their country. But that does not mean they can ignore what the rest of the world understands at the conceptual level what ‘citizenship’ is or that we can adopt policies that undermine our European partners or the European project itself.

“Others do it” is not a defence either. The Netherlands allows third-country nationals to acquire Dutch citizenship but only after they invest in companies they run, employing people and contributing to the economy in a material sense. Romania allows third-country nationals to buy a fast track ticket to a Romanian passport but only after they have lived in the country for four years.

Cyprus and Malta are the two countries with ‘citizenship by investment’ schemes with no investment requirements. Paying the government is a fee or a tax, not an investment. They are also countries where the legal definition of residence does not require passport buyers to live there. At all. Ever.

That is the complete opposite of having a ‘meaningful’ and ‘genuine’ link with the country. Muscat will be defending a lie.

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