There is a growing tendency toward the devaluation of the concept of citizenship. It was perceived for many years as a key instrument of internal sovereignty. Once states become transparent as a consequence of globalization and global governance, internal instruments of sovereignty become less powerful.
This is particularly evident in the tendency which may be identified in both scholarly works and state practice toward extending broader legal rights to non-citizens.
Although this may appear to be a means to guarantee political rights and effective participation of migrants in the community, I do not believe it is the best way of integrating migrants in the polity.
Scholars have developed several theories on the changing phenomena of citizenship. While some have declared the devaluation of citizenship, others have recognized the pulverization of its elements and propose slicing the concept and extending some of its elements to migrants. These theories are generally classified as transnational or global citizenship.
There is room, however, for a different proposal for reassessing citizenship and the interconnection of the concept with both the global arena and internal democratic policies.
In fact, when migrants move to live in another country, they become, in the expression of Motomura, citizens in waiting.
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This means that to some extent expectations are raised with regard to obtaining the citizenship of the country where they are living and whose economic, social, and political growth they contribute to.
It would be a democratic paradox to exclude these people permanently from the citizenship status. Of course we can claim that the concept is irrelevant or we can even slice it, give it away, and then claim the irrelevance of the status. Yet, it will always be a matter of discrimination, and ultimately, of democratic failings to admit that, according to a certain perception of sovereignty, the member of the “club”—in the words of Walzer—can permanently exclude the others from the exercise of political rights.
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Seen from this perspective, we need to acknowledge the power of citizenship as an instrument of inclusion—and deny the theory of the decline of citizenship—and also acknowledge that diffusing elements of citizenship and granting them to migrants will not be enough to achieve the ultimate inclusive target as the status will always be lacking.
If we study naturalization policies around the world, a certain pattern can be found. There are also international legal instruments—such as the European Convention on Nationality (ECN)—that impose duties on states related to the granting of citizenship and the aforesaid naturalization policies.
It is necessary to reinterpret the right to citizenship set out in the Universal Declaration of Human Rights. For many years, it was interpreted as prohibiting policies that created or contributed to a situation of Statelessness. For that purpose, international legal instruments were created and judicial decisions were proclaimed. The right to citizenship was perceived as a negative limit to state sovereignty. A state could deny or overrule another state’s decision on citizenship if that decision was arbitrary (with no effective link) or contributed to the situation of Statelessness.
It is now necessary to reinterpret that reading of the Declaration. In a globalized world where even citizenship—the last bastion of sovereignty (Legomsky)—has gone global—it is not enough to consider citizenship as a negative limit to state sovereignty.
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It is probably necessary to consider it as a positive imposition on states. That means that if—as I will argue here—we consider the right to citizenship as a natural consequence of a path, down the road, that someone initiated the moment they set foot as a migrant in a country, one should probably recognize that the right to citizenship is no longer merely the right to have one citizenship but the right to have access to a certain citizenship.
Based on basic principles of transnational citizenship law, such as the principle of protection of legitimate expectations, the principle of proportionality, ius domicilii and adverse possessions, as well as the democratic principle and also based on the naturalization pattern around the world, it should be possible to determine that no citizen in waiting should be permanently excluded from citizenship. Although this proposition might sound quite consensual—especially within Western countries with standard naturalization policies—the basic essence of what has been said is very controversial. It not only imposes a positive duty overriding an important dimension of sovereignty—the symbolic definition of the people—but it also gives rise to a discussion about undocumented migration. The Western pattern on naturalization policies certainly does not include undocumented migrants. However, the same considerations about the democratic principle apply to this category of migrants, most of who stay for several years in a country with the tolerance of the host state, to say the least. The access of these migrants to citizenship is an active question in the USA and is becoming one in Europe as well. There is no legal answer whatsoever, even though it is widely recognized that undocumented migrants have, as would seem obvious, human rights. Does that mean that they also hold the right to citizenship?
I will not try to provide a definitive answer to these questions, but, through research and reasoning, I will attempt to understand the state of the art in this field and ultimately identify a trend and predict what the near future of legal scholarship and court decisions in this area will be.
This book does not focus on a particular jurisdiction. Even the focus on the evolution of instruments of international law and on European citizenship is intended to merely provide examples and contextual explanations of what broader citizenship law is.
Rather, I will follow a transnational law approach. By transnational law, I mean the set of rules, principles, and arguments that contribute to a certain legal solution regardless of the place or jurisdiction where that solution originates or takes place. The locus of the rule is not important; it is its relevance to the global legal order that matters.
Transnational law has reached all areas of law, including the last bastions of sovereignty such as immigration and citizenship.
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Global constitutionalism has become an active area of research in transnational law. This means that the general assumptions in law, such as the institutionalization of lawmaking, relations among states and state law nexus are no longer the sole sources of law. Legal pluralism is making its course.
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Principles like the ones I use to identify the trend toward a right to citizenship, such as proportionality, expectations, and democracy, have all been developed within this transnational framework. Some of them—proportionality and democracy—as I will later expand on, have even become bold examples of transnationalization of general legal principles.
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Citizenship has been associated with transnational law for a long time, longer than the recent movement of scholarly discussion on transnational law. As will be discussed in Chap. 4, transnational citizenship is a concept rooted in the tradition of citizenship studies.
If there is one characteristic of transnational citizenship, it is that it is decentered from the state, outside the traditional institutional locus. That is one of the criticisms usually leveled against the concept.
Interestingly, citizenship, a concept in the realm of sovereignty, was one of the first concepts to be explored from a transnational law standpoint.
Even if we diverge from the common approach of the transnational citizenship theorists, as I will later elaborate, these days it is impossible to conduct thorough research on citizenship from a purely internal standpoint. The same can be said of the classical international law standpoint.
Although I do not focus on any particular jurisdiction, I pay attention to internal rules of citizenship as well as to public international law rules whenever their relevance justifies attention.
The transnational law approach does not ignore these dimensions. However, to identify a transnational trend, a rule that has freed itself from a particular jurisdiction and gained relevance at the transnational level, one must not be attached to a locus or legal system.
This perspective may be regarded as being too broad or vain and one might say that law cannot be constructed on unstable roots. As legal pluralism shows us, it is becoming increasingly difficult to understand law within the classical mind frames. States no longer represent all the richness of law and legal sources. It is necessary to search beyond the states.
As I will also demonstrate, an important part of this movement is explained by the transparency of states that has been brought about by globalization. The era of information and human rights changes a world of states into a world of people.
Individuals do not relate solely, in this era, with their neighbor citizens and countrymen but with people, no matter how far away they are, that share the same interests. This has given rise to all sorts of movements. Some of these movements are captured under the idea of transnational citizenship.
So, citizenship is also a key concept to understand the transnationalization of law. Transnational law cannot be understood without citizenship and citizenship cannot be fully understood without transnational law.
This approach does not ignore the nation-state. Quite to the contrary, unlike theories of citizenship decline, associated with the transnationalization of citizenship, I acknowledge the importance of the status and its inclusive potential. The nation-state is far from being destroyed.
However, there is certainly a different position for the nation-state from Westphalia to the global world. A global world without a global state still needs traditional states to enforce its principles and rules. As I see it, states are obliged by the transnational law to enforce basic principles and rules through their traditional enforcement channels. It is very clear that international and transnational law will not be enforced otherwise.
This does not mean, though, that states remain free to do whatever they wish as long as this does not conflict with other states. Internal constraints increasingly result from international and transnational law, even in areas considered to be the realm of sovereignty, such as citizenship.
This book covers, in Chap. 2, a conceptual evolution of citizenship, ranging from semantic variations to the evolution from the classic civilizations, the Middle Ages, and the French Revolution.
Chapter 3 focuses on the evolution of international law of citizenship and the new international law of citizenship.
In Chap. 4, I address the transnational citizenship concept and its variations. I will also criticize the concept in the context of the traditional citizenship status.
Chapter 5 analyses European citizenship as the only institutional example of transnational citizenship. I will dedicate attention especially to the relations between national and European citizenship and will discuss the recent and very relevant court decision by the European courts.
In Chap. 6, I will look into the concept of migrants as citizens in waiting, looking at migrants’ rights and their path to citizenship.
The conclusion will be presented in Chap. 7 where, by identifying a trend toward a general right to a specific citizenship, I sum up different arguments that support such a trend.
Notes
1.
HIROSHI MOTOMURA, Americans in Waiting (2006).
2.
MICHAEL WALZER, Spheres of Justice. A defense of pluralism and equality (1983).
3.
STEPHEN LEGOMSKY, The Last Bastions of state Sovereignty: Immigration and Nationality Go Global (2009), 43–57.
4.
STEPHEN LEGOMSKY, The Last Bastions of state Sovereignty: Immigration and Nationality Go Global (2009), 43–57.
5.
PEER ZUMBANSEN, Defining the Space of Transnational Law: Legal Theory, Global Governance & Legal Pluralism (2011).
6.
MATTIAS KUMM, Democracy is not enough: Rights, proportionality and the point of judicial review (2009).