Jean Monnet Center at NYU School of Law

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1. Citizens and aliens: the traditional borderline

The political map of the modern world has a quality of simplicity and clarity that almost resembles a Mondrian painting. States are marked by different colours and separated from each other by black lines. Only the crooked features of these borders, which are partly due to nature and partly to human history, trouble the clear geometry. What a political map shows us are state territories, not populations. State territories do not overlap and there are no more territories which are claimed by no state. Only the high seas are not divided between states and only Antarctica has been temporarily declared a demilitarized zone where sovereignty is shared by several states.[2] Yet there are no people living permanently on the high seas or in Antartica and states are, above all, organizations of human populations. So a modern political map marks all places inhabited by people as belonging to mutually exclusive state territories.[3] If we tried to mark people rather than land in the colours that symbolize states the picture would become more complex. Should we choose the colours according to the individuals' habitual or present residence or according to their citizenship? People who live in a state are subject to the law of the land, but people living outside their country of origin may still be that state's citizens. We could resolve this problem by creating bi-coloured categories of people and using white for stateless people on the move. From a bird's eye perspective this would introduce shades of different colours in some spots where migrants and refugees concentrate. Yet there is also a difficulty in the time dimension. Territorial borders of states are relatively stable and when they change the political map must be redrawn. However, many people move all the time. Rather than looking like a painting our political map of populations will therefore resemble one of these animated computer graphics which change their shapes and colours so quickly that the eye can hardly grasp what is going on.

Many political theorists, legal scholars and statesmen have seen a profound beauty in the simplicity of Mondrian paintings. They have often applied Procrustean methods in order to reduce the disturbing complexity which results from multiple affiliations and geographical mobility to a legal dichotomy of citizens versus aliens. In this view, the distinction between citizen and alien ought to be just as clear-cut as that between the two sides of a land border. Four basic premises underly this conception of citizenship: (1) aliens are fully subjected to territorial sovereignty; (2) aliens are excluded from citizenship rights; (3) states are sovereign in determining rules for the acquisition and loss of their citizenship; (4) human rights effectively depend on citizenship. These principles are meant to strengthen the individual state's control over territory and populations and to serve as guidelines for resolving conflicts between states over who is subjected to their rule. However, once they are combined and applied by all states, they generate themselves a number of contradictions and irregularities. I will first briefly outline the implications of the four principles and then discuss how each of the premises has been challenged by developments towards more inclusive forms of liberal democracy after the Second World War. The novel elements of transnational citizenship, which emerge from this, provide a starting point for analyzing the citizenship of the European Union. I will argue that it remains severely limited at present not only in terms of its content (the individual rights established in Article 8a-d of the Maastricht Treaty) but also with regard to the structural features of what I call its architecture. I will evaluate different strategies for overcoming the exclusionary aspects of Union citizenship and will discuss in the final sections which kind of collective identity could support a more inclusive conception of common European citizenship.

(1) Subjection to territorial sovereignty

If states are sovereign within their territory and if sovereignty is the highest, final and independent political power as which it has been conceived ever since Bodin (King 1987), then the basic political unit of population must be defined as those who live under the rule of a state. In this respect there is no fundamental difference between citizens and aliens; they are both equally subjected to the laws of their state of residence.

If such absolute territorial sovereignty were consistently established, its flip side would be that states could not relate to anybody outside their territories as their subjects or citizens, because this would necessarily infringe on the sovereignty of the host country.[4] Emigrants could be neither protected nor controlled by their states of origin. Thomas Hobbes, the foremost theorist of absolute sovereignty, does allow for an exception: "But he that is sent on a message, or hath leave to travell, is still Subject; but it is, by Contract between Soveraignes, not by vertue of the covenant of Subjection. For whosoever entreth into anothers' dominion, is Subject to all the Laws thereof, unlesse he have a privilege by the amity of the Soveraigns or by speciall licence." (Hobbes, 1973, XXI:117). Yet this is a fragile solution. What if sovereigns do not grant a permission to leave or do not maintain friendly relations among each other? If the international system is in a state of nature with a continuous danger of war, then emigrants will generally not be protected by their citizenship of origin.

(2) Exclusion from citizenship rights

If the state is a despotic Leviathan, citizens and aliens are both mere subjects. But if the state is a republic their position is vastly different. Citizens will be seen as members of the political community who collectively rule themselves while aliens are outsiders who remain in a status of legitimate subjection. As a result, aliens have no fundamental claim to civil and social rights enjoyed by citizens and they are by definition excluded from political rights of participation such as the franchise or access to public office. Aliens may be treated politely or even generously but only in the way guests are dealt with. Hosts may have moral duties towards guests, but guests have few if any claims to rights. Most importantly, they may always be told to go home again. Permanent security of residence is a citizens' privilege.

In John Locke's view the social contract is strictly based on individual consent. By consequence foreigners who have not signed the contract may enjoy some protection but residence does not confer membership:

"But submitting to the laws of any country, living quietly and enjoying privileges and protection under them, makes not a man a member of that society... And thus we see, that foreigners by living all their lives under another government, and enjoying the privileges and protection of it, though they are bound even in conscience to submit to its administration as far forth as any denizen, yet do not thereby come to be subjects or members of that commonwealth. Nothing can make any man so, but his actually entering into it by positive engagement, and express promise and compact." (Locke, 1956, VIII:62-3).

(3) Sovereign determination of acquisition and loss of citizenship

According to article 1 of the The Hague Convention on Matters of Nationality of 1930 it is for each State to determine under its own law who are its nationals. Sovereignty thus seems to extend to the rules under which individuals may acquire a citizenship at birth or through naturalization and the conditions for voluntary expatriation or involuntary denaturalization of emigrants. However, this is an area where unlimited sovereignty becomes ultimately self-defeating.

First, free determination of citizenship creates a tension with territorial sovereignty. The former defines the area of sovereignty with regard to a population tied to a state by a durable legal bond which normally extends over a whole individual life and even across generations. It thus provides not only reasons for privileging citizens over resident aliens in the territory, but also for regarding emigrant citizens abroad as remaining members of their political communities of origin. While the tension between premises 1 and 2 is normally resolved by distinguishing between aliens as mere subjects and citizens as both subjects and shareholders in sovereignty, the conflict between territorial sovereignty and what we may call external citizenship is more acute because it involves overlapping claims of two different states to include the same group of resident aliens among the addressees of their laws.

Secondly, the free determination of who are a states' nationals is bound to create problems of coordination between states with regard to acquisition, loss and changes of citizenship. Imagine a board game in which a set of players are told to initially distribute pins between them according to rules which each player may invent for herself. They are also told that they are sovereign because there is no arbiter to resolve conflicts between them. It's a recipe for chaos. In the real world there is no chaos, first, because there is never a fresh start of the game - almost all the pins are at any time already on fields belonging to specified players, and, second, because most people are sedentary - only few pins move into another player's field. However, the allocation of pins to players becomes a difficult question in the absence of generally agreed rules when fields are embattled between contesting players, or when their borders change, or when new players enter the game. Similarly, when many people move and do so frequently, the issue of determining citizenship involves more than just one state and with sovereignty of rule-making for each the outcome is bound to be contested.

The result is the inevitable emergence of multiple citizenship and of statelessness. Multiple citizenship obviously contradicts the intention of preventing any overlap of sovereignties with regard to populations. It may come about even if each state tries to avoid it. If, for example, a country of immigration has a rule of ius soli for the acquisition of citizenship at birth, but countries of emigration adopt ius sanguinis for the first generation born abroad (as most actually do), then children of immigrant parents will be dual citizens. If both sending and receiving countries choose gender-blind ius sanguinis then children of mixed native and immigrant parentage will also be dual citizens. Finally, if a country requires renunciation of a previous citizenship as a condition for naturalization, but the state of origin refuses to expatriate or allows renaturalization after a change of citizenship abroad, then first generation immigrants can also acquire dual citizenship.

Statelessness may result when both sending and receiving states of migrants apply restrictive rules for citizenship acquisition at birth (e.g. when ius sanguinis and ius soli are combined so that automatic citizenship requires birth in the territory and of citizen parents, or when both parents must be citizens in order to pass this status on to their children[5]). In our times statelessness has more commonly emerged from the break-up of empires and multinational federations whose successor states deny access to the new citizenship to groups they regard as belonging to the former oppressor state or to another successor nation. In some cases states have expatriated their dissidents in exile. More generally, political refugees have to be considered as stateless even when they formally retain their citizenship, because they are unable "to avail [themselves] of the protection of the government of the country of [their] nationality"[6] and cannot return to that country without risk.

While statelessness fundamentally endangers the protection of rights for individuals, multiple citizenship is mainly perceived as a threat to state sovereignty. There are four major objections against multiple citizenship: conflicting loyalties, incompatibility of legal norms, evasion of citizen duties or diminishing of citizen right. First, citizenship entails not only rights but also obligations, the most fundamental of which is that of loyalty. According to Hobbes, "no man can obey two masters." (Hobbes, 1973:105). Jean Bodin states more cautiously that a man can be a slave or vassal of two masters of equal status but a citizen can never be subject to several sovereign princes without agreement among them (Bodin:173-4). Secondly, consistency of laws relating to persons is normally guaranteed only within but not between states. Incompatible laws may thus apply simultaneously to multiple citizens. The most familiar example are collisions in private and family law with regard to marriage, divorce, parental custody rights and inheritance. Thirdly, multiple citizenship may make it difficult for states to enforce individual compliance with duties and to control the abuse of rights. Multiple citizens may find opportunities to avoid military service or paying taxes in any state, while voting or cashing in social welfare benefits in several states. Conversely and fourthly, dual citizenship may also be detrimental to the individual's interests and rights. When they are in one of their states of citizenship dual citizens do not enjoy diplomatic protection by the other state and if there are no conventions, states may also separately impose multiple duties such as that of military service.

(4) Human rights are premised upon citizenship

The fourth feature of the traditional borderline between alien and citizen is what Hannah Arendt has called the paradox of human rights. The human rights enshrined in the declarations of the American and French revolutions were meant to be universal only in the sense that all legitimate governments ought to guarantee them for their citizens. In the 20th century the paradox became apparent in the fate of the refugees and stateless people of the inter-war period: "The Rights of Man, supposedly inalienable, proved to be unenforceable - even in countries whose constitutions were based upon them - whenever people appeared who were no longer citizens of any sovereign state" (Arendt, 1967:105). Human rights are by definition rights of natural persons independently of their citizenship, national affiliation or territorial residence. However, in Arendt's analysis, they are premised upon citizenship as the "right to have rights" (ibid.:296).[7] Stateless persons or refugees who are no longer protected by their citizenship have been deprived of membership in a polity, which is a practical precondition for their enjoyment of human rights. Other foreigners who retain their citizenship of origin may still be threatened in their human rights when their states of origin and residence go to war against each other. The examples of denaturalization of Jews in Vichy France or the collective internment of US-Americans of Japanese origin during World War II show that even birthright citizenship or naturalization may provide no protection of human rights for groups who are turned into foreigners by raison d'etat.

Our discussion shows that the four traditional features of the border between citizens and aliens do not quite achieve the intended result of creating an unambiguous and stable order of populations in their relations to states. What they do is subordinating the concern for a comprehensive and fully inclusive protection of individual rights to concerns for state sovereignty. The strongest expression of this conception is Carl Schmitt's distinction between friend and foe as the essence of politics. The Hobbesian perspective of international relations as a latent state of war between sovereign nations is thus complemented by the view of foreign citizens as potential enemies.

[2]. Antarctic Treaty of December 1, 1959, originally signed by 12 states.

[3]."For nearly every human being, and for almost every piece of territory, there is exactly one government with preeminent authority over, and primary responsibility for, this person or territory" (Pogge, 1992:58).

[4]. According to Thomas Pogge, A's sovereignty over B is absolute if and only if "no other agency has any authority over A or over B which is not supervised and revocable by A" (Pogge, 1992:57). This definition implies that state A's sovereignty over the citizens of state B living in A's territory cannot be absolute if citizenship entails some exercise of B's authority over its citizens abroad and if A cannot deprive B's emigrants of their citizenship of origin.

[5]. Aristotle thought that this latter rule was the natural one to follow and that lack of population was the usual reason for states to depart from it temporarily (Aristotle 1962,III.ii:171, III.v:185).

[6]. United Nations Convention relating to the Status of Refugees (Geneva Refugee Convention of 1951).

[7].While Arendt saw this as a tragic but inescapable fact about the modern world, other writers in the civic republican tradition still affirm the "self-reflexivity of democratic citizenship" which makes any rights unenforceable outside its framework: "Öthe rights by which we claim access to citizenship are themselves given force only by citizenship" (Barber, 1996:357). Although Barber does not explicitly refer to aliens but rather to the access of those who are formal citizens to full and active membership, his perspective seems to deny that human rights are normatively prior to the outcome of democratic deliberation among citizens. While deliberative and republican theories of democracy may argue that reasonable citizens will support a constitution that respects human rights, the problem is to show how such rights would be truly human ones in applying to any human being independently of her citizenship.

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