Tag Archives: international human rights law

Citizenship Deprivation: A Violation of Human Rights?

  1. Introduction: the relevance of the issue

During the past few years, there have been an extensive analysis and fervent political and legal debates over criminal and administrative measures to fight international terrorism, specifically to cease the flow and prosecute the so-called “foreign fighters” (FF). In various literature FFs are generally referring to as ‘home-grown terrorists’ or ‘radicalized citizens’ (Mendelsohn 2011, 189; Malet 2009, 13). Even if there is no well-established definition, this paper refers to the following: A FF is “an individual who leaves his or her country of origin or habitual residence to join a non-state armed group in an armed conflict abroad and who is primarily motivated by ideology, religion, and/or kinship”. (Krähenmann 2014, 6)

The impressive number of FFs joining terrorist organizations, and the international dimension of their activities, mobilization, and travel patterns have created heated political and legal discussions in various countries. It also resulted inan intensifying discourse around the‘growing threat to international security’.It has not only been about the number of FFs that is very impressive (more than 30,000), but also about the geographic diversity of individuals who have joined conflicts (de Guttry; Capone and Paulussen, (eds) 2016, 12-13; Bakker & Singleton 2016, 10-15 and Academy Briefing, 2014).

One of the means to fight international terrorism and punish individuals involved with terrorist activitieshas been applying citizenship deprivation, in other words, turning them into aliens. Noticeably, the practice of depriving individuals of their citizenshipis not a new phenomenon to the international legal domain. Itreached extreme levels during and after World Wars, as illustrated by the denaturalization of British and Belgian citizens of German origin after the World War I (Cloots 2017, 59). The Nazi era and inter-war years used it as a political tool to banish large numbers of people, such as political opponents and Jews. Belgium also applied citizenship deprivation to punish collaborators after World War II (Cloots 2017, 64).

The war against terrorism following the 9/11 events, together with the most recent terrorist attacks in Europe, revived the issue to the foreground. Effectively, as terrorist events can be considered as pure criminal acts (Travalio and Altenburg 2003, 98), various states have recently pondered citizenship stripping as a way of responding to these acts. In the UK, it was passed as part of the Immigration Act, which enabled the government to revoke citizenship in some cases even if it results in statelessness; in the US, it was proposed first as the Terrorist Expatriation Act and later as the Expatriate Terrorists Act, but neither passed (Sykes 2016, 749-763). In a comparable vein, reforms have meanwhile been announced in Israel, Spain, France, Belgium, Norway and the Netherlands (van Waas 2016, 472-475;Sykes 2016, 749-763).

This paper presents the thesis that citizenship is a human right and its deprivation violates this right particularly when it results in statelessness. In order to defend this opinion, the first section will highlight the definition of citizenship and its evolution as a human right and its legal status. The following section will elaborate on the universal and regional legal framework that regulates citizenship. The concluding section of this paper will outline an analysis of citizenship as a human right and the consequences of its deprivation will be drawn.

 

 

 

  1. Definition and evolution of citizenship as a human right and legal status

In her most famous work, The Origins of Totalitarianism, Hannah Arendt (2004, 297) argued that citizenship is ‘the right to have rights’, whereas ‘the Rights of Man’ proved to be inadequate to actually protect ‘abstract’ human beings who were no longer recognized by ‘their state’. Only belonging to ‘one’s own people, that is, as a fundamental status that gives rise to concrete rights’ could ensure protection of supposedly inalienable and universal human rights (Arendt 2004, 296). In a similar vein, Sandra Mantu (2015, 12) also expresses the same opinion and claims that ‘citizenship may be labelled as a secure status, if not the most secure status a person can enjoy. This is true because numerous political, civil, economic, and social rights are enjoyed through citizenship.’

One can conclude, from Arendt and Mantu´s mutual standpoint, that having citizenship is a gateway to other rights and that citizenship is the highest and most secure legal status one can hold in a state. It also seems that citizenship lies at the very heart of the concept of the nation-state. Further, there is the question of how citizenship is constructed as a legal right in a combination of domestic and international developments. Since IL and IHRL are designed to protect both state and individual interests, it is not surprising that they both form paths by which citizenship is constructed. Similarly, domestic law affirms who is and can or who is not and cannot become their citizen. For example, citizenship can be acquired through naturalization after complying with a state’s rules concerning its domestic citizenship regulations. In most States, one of the ways in which an individual can naturalize is through the jus domicilli principle or marriage. With regard to the relation between IL and IHRL as long as citizenship law concerned, for example, the Hague Convention states that: “This law shall be accepted by other states in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognized with regard to citizenship law.” (Article 1 (b) of The Hague Convention 1930)

This paper confirms that the principle of state autonomy in citizenship matters, and acknowledges the limits to the states’ prerogative to determine the membership of their citizenry.  Discussions on the formulation of a right to citizenship as a human right only took place in the mid-20th century. It was first confirmed as a right in non-binding regional documents, including the American Declaration on the Rights and Duties of Man (1948). The universal protection of the right to citizenship was envisaged by the Declaration, which has since become binding as customary international law. Although international human rights law under the UDHRaffirms that human rights apply to all individuals regardless of their citizenship or national origin, citizenship determines the scope of the application of basic human rights and obligations of states to other states and the international community, such as the application of multi- or bilateral conventions and treaties.

In its famous judgement, the International Court of Justice (ICJ) in the Nottebohm (Liechtenstein v. Guatemala)case has described citizenship as a “legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties” (ICJ Reports 1955: 4, 23. See also art. 2 of the European Convention on Citizenship). Citizenship can thus be understood as a link between an individual, a country and the international community.

This link results in mutual rights and duties on all sides, including loyalty to the state of citizenship, while the very same state reciprocates by protecting its nationals. Further, citizenship holds the keys to international legal protection and holds States accountable for their actions and to recognition by a system cantered on Statehood. Under domestic law, citizenship is defined as denoting full membership in a state or as a sum of legal rights and duties of individuals attached to citizenship (Mantu, 2015, 1). Even if there is no symmetric catalogue of the rights and duties that nationals possess in relation to their state, Mantu states that ‘it is generally considered that the content of law to citizenship will vary from one State to another according to the domestic legal protections and political system surrounding the right to citizenship.’In this regard, Pocock also states that citizenship ‘enables us to define an indefinite series of interactions between persons and things, which may be restated as rights, used to define new persons as citizens.’ (Pocock, 1995, 45)

Moreover, it has been argued that several human rights instruments purposefully diminish the importance of citizenship so to prevent statelessness or the status as a non-citizen from being used as a basis for discrimination, in the sense that they make citizenship a non-prerequisite to enjoying human rights. Despite the central role the concept of citizenship played in the rise of human rights culture, the words “citizen” and “citizenship” are rare in the major international human rights instruments. Indeed, the sense of the instruments themselves is to erode the importance of the very concept which originally gave rise to the idea of fundamental human rights (citizenship), in the interest of doing away altogether with boundaries between privileged and non-privileged (Claude, 2003, 245).

Weissbrodt (2008, 248-250) also suggests that ‘because being human is the sole requirement entitling us to human rights, whether or not one possesses citizenship should have no bearing on whether we enjoy all of our human rights’. This has been stated by Donnelly (2003, 10), who sees human rights as literally ‘the rights that one has simply because one is a human being.’ Although States may have the primary responsibility for implementing internationally recognized human rights in their own countries… human rights are ‘the rights of all human beings, whether they are citizens or not.’(Weissbrodt and C. Collins 2006, 245) Because being human is, for him, the sole requirement entitling one to human rights, whether or not one possess citizenship should have no bearing on whether one enjoys all of her or his human rights.For example, the ICCPR requires states ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (Article 2, para 1). The European Convention for the Protection of Human Rights and Fundamental Freedoms requires state parties to “secure to everyone within their jurisdiction the rights and freedoms’(of the Convention). Similar provisions can be found in Article 2 of the UDHR.

Yet, having said that, it should not be understood that citizenship as a legal human right has always been protected and respected by States. As the most agreed opinion is that citizenship as a right means to ‘have rights’, this gives it the attribute of being far more than a legal sentiment of identity and belonging to a political community (state), more than a social fact of attachment to certain state. Therefore, to be deprived of citizenship means to weaken an access to other fundamental rights, such as the right of movement, right to access education, etc. Citizenship can be described as involving both inclusionary and exclusionary practices that are meant to express the meaning of identity and belonging within a specific political community (Mantu 2015, 3). From this, one indeed can see that the right to citizenship is widely recognized as a fundamental human right.

Kingston (2005, 23), in her article on the history of the practice of banishment, deportation and the deprivation of citizenship claims that ‘on the question of citizenship it is not often acknowledged that the state has power, not only to grant or deny residency and new citizenship in a political community, but also to revoke membership and expel those once deemed citizens.’ Additionally, one of the doctrines of state sovereignty refers to the fact that states have power over rules and principles for the loss and acquisition included in their domestic legal regime in respect to citizenship. As such, states are understood to be free to determine who the members of their national community are. Sandra Mantu (2015, 1) states that: ‘by designing legal rules dealing with the acquisition and loss of citizenship, states engage in a series of legal practices that shape the personal scope of national citizenship’.

Yet, the individual remains a state´s citizen and enjoys the rights guaranteed under its citizenship law but loses some of the rights that go with it. Being deprived of one’s own citizenship effectively causes one to lose all rights other than those recognized in international law as basic human rights. Thus, to revoke someone´s citizenship is not a measure to be taken lightly. The rights linked with citizenship, such as the right of movement, right to access to education, etc., are inherently affected, amounting to a severe limitation of human rights enjoyment and protection. Notwithstanding, international law does not absolutely prohibit deprivation of citizenship but it is, nevertheless, in accordance with various legal texts, sets out strict conditions for States to follow in order to deprive their citizens of their citizenship. It should not be forgotten, however, that citizenship loss is not only on the basis of public security threats or political motives. There are other justifications for its deprivation, such as, among others, fraud in naturalization, expiry of citizenship after long-term residence abroad or loss in case of acquisition of a foreign citizenship. Macklin (2014, 1) states that some States that prohibit dual citizenship may revoke the citizenship of an individual who gains the citizenship of another state. Many states also retain the power to naturalize the citizenship of a citizen who obtained citizenship through fraud or misrepresentation.

As we have seen, questions related to citizenship and the legal framework that constitute it were within the exclusive domaine réservéof states (Weis 1979, 66). States were autonomous in their citizenship matters. However, in the new millennium many international standards were developed regarding the rules and principles of acquisition and loss of citizenship. This development in the international arena has challenged this understanding. Arendt´s conceptualization ‘right to have rights’ would gradually be secured by shifting the power of citizenship and its deprivation from liberal democratic States to the international legal system (Spiro 2013, 2169).

This does not mean that a state’s right to determine citizenship law has remained unaffected by the development of human rights and human dignity, which has shifted the very foundation of public international law from a system of coordination of sovereign states to the well-being of human beings. Rather than making general assumptions about to what extent the sovereign rights of states are replaced or limited by human rights concepts of self-fulfilment and personal identity, it seems appropriate from a legal point of view to differentiate different areas in which human rights considerations influence the determination of citizenship or have been recognized in the process of obtaining increasing recognition by states. As examples, we refer to the naturalization of migrant workers, the issues of denationalization and arbitrary deprivation of citizenship and, finally, discrimination in granting naturalization. It is important to recall that in practice States have not always been willing to implement the principles of IL, IHR or CIL on citizenship prescribed by the relevant legal instruments and for different reasons. There are some states which have not signed and/or ratified relevant international law instruments, and which do not comply with even the general standards of CIL. Others have signed and ratified treaties, but still fail to implement all key provisions, opening themselves up to political criticism and the possibility of legal action in the domestic courts depending upon the domestic effects of international treaties. Other states again comply with certain international standards while not having signed and/or ratified the treaty they are contained in.

On this standpoint, one can claim that banishment has been used as a form to prevent future crimes and express the power of a state´s ability to meet its responsibility towards its sovereignty and to punish those who do not respect the law. This leads us to understand why citizenship is seen as a privilege not as a right, which in turn might explain why more often than not rules dealing with loss of citizenship will, as Mantu puts it: ‘indirectly target naturalized citizens’ (Mantu, 2015, 1). The citizenship link between a state and individuals was conceived mainly as a privilege, which at the international law level guaranteed the individual the enjoyment of a certain degree of protection outside his or her own country.

Citizenship should not be considered as a personal relationship between an individual and a state or allegiance of an individual towards his state, the development of IHRL on citizenship makes it a legal status embracing a set of mutual rights and obligations towards a state fulfilling certain requirements necessary for the coexistence of a sovereign state and IHRL. Regulating the right to citizenship on the international level reflects the interests of states, and the wording of relevant documents is typically vague and lacking in order to enable states to retain the regulation of citizenship as far as possible within their respective domestic spheres and the right ensured on the international level is frequently rendered meaningless in practice.

  1. The right to citizenship as set out in international legal instruments

Citizenship as a legal right confirms the membership of an individual in a state, and the definition of who is a national of a state is almost exclusively a product of domestic legislation. Further, an individual having a state´s citizenship is in many important respects subject to its own domestic laws, meaning that this individual may be recalled and penalized for his failure to return to his country. A national may be punished for crimes committed outside the state of citizenship or he may be subjected to judgements obtained against him in absentia. This in a way gives a pathway to the fact that foreign fighters are, and seem bound to always remain, ‘citizens of State X or B’ and, thus, are bound to its domestic laws.

The power of a state to regulate issues of citizenship, depriving foreign fighters of their citizenship as a result of terrorist acts for instance, is nonetheless limited by international human rights law.For one reason, this is due to the interplay between the citizenship rules of states and their commitments to the international legal regime on citizenship and, for another, any interference with the enjoyment of citizenship has a significant impact on the enjoyment of rights (UN 2011). This is evidenced by the IHRL limiting States’ discretion, through the principle of avoidance of statelessness, the right to respect for private and family life, non-discrimination, the principle of non-arbitrariness, the right to freedom of movement, and the right to enter one’s own country (Goethem, 2006, 4-6)

The legal regime on citizenship can be found in customary international law, in very few instances of case law, and arguably also within the universal human rights regime (Bilgram 2011, 2). Most importantly, however, its international standards are being developed in bilateral and multilateral treaties, supported by international bodies such as the UN. This is at the international level. However, this study is interested to focus on the European system as well, thus it is important to mention, at the European Union level, standards that have been set by the Council of Europe and to a certain extent also by the EU through EU law, although the latter has no competence per sein citizenship matters.

How states will address foreign fighters stems from the international human rights law which its cornerstone is that everyone has a right to, at least, citizenship, albeit no right to a specific citizenship of a specific state. The documents concerned, at least a great number of them, contain provisions on the law of citizenship. The approach of international legal instruments in this matter is necessarily in a sense that multilateral conventions obligate States Parties to criminalize specific terrorist conducts under national criminal law.

At the international level, the very first source of this cornerstone principle corollary to the right to citizenship is the 1948 Universal Declaration of Human Rights (UDHR), which accords everyone ‘the right to a citizenship’and guards against arbitrary deprivation of citizenship. (Article 15). Under its Article 15, the importance of the UDHR appears, with regard to citizenship law, as it guarantees protection against statelessness and arbitrary denationalization. However, although the UDHR is significant as a leading instrument to other legal instruments which was created after 1948, the UDHR is not legally binding on States, so this paper is merely considering the UDHR as reference.

Following its adoption, it became ‘necessary to spell out the general standards of the UDHR in legally binding instruments…covering the whole range of human rights’ at both universal and regional levels (Cassese 2005, 381). Moreover, Waas claim that the American Convention on Human Rights (ACHR)is ‘the most far-reaching right to citizenship in a legally binding human rights document to date’ (Waas 2008, 3). It is the aim of this study to consider Article 20 of the ACHR as of great importance. This article contains significant elements, including a fundamental recognition of the general right to citizenship, in particular by imposing a specific obligation to grant citizenship jus solito every person that otherwise would be stateless, the prohibition of arbitrary deprivation of citizenship, which contains the prohibition of discriminatory practices in citizenship matters.

As a side note, the combination of the mentioned elements results in a very comprehensive article that contains solid protections for the individual’s right to citizenship, and for this reason the discussion on protection of citizenship will be roughly around these elements. In addition to the American system, the IHRL on citizenship also consists of other regional human rights systems, including the Inter-American system, the European system, the African system, the Arab system, and the ASEAN system. These systems, as Vela puts it, share various common features, including the fact that they all possess at least one fundamental right’s instrument, at least one human rights body, and they were all ‘established under the auspices of an intergovernmental organization’. (Vela 2014, 54).

Like in the Inter-American system, the European and African systems are equipped with courts that can hear cases of violations of the rights stipulated in their respective regional documents, and a substantial amount of case law on issues of citizenship exists. The Arab charter is a relatively new development, and as a document it does not possess the same enforcement mechanism as the documents in the Americas, Europe and Africa possess. In the 1994 version of the Arab Charter, the article 24 did not contain an acknowledgement of a general right to citizenship. It stated that ‘Everyone has the right to citizenship. No one shall be arbitrarily or unlawfully deprived of his citizenship’.However, in the 2004 version of the charter, article 29 (1) acknowledges this right, saying that ‘Every person has the right to a citizenship as prescribed by law. No person shall be arbitrarily deprived of such citizenship nor denied the right to change that citizenship’.

Finally, the ASEAN declaration is a declaration, which means it contains the rights that all ASEAN members should strive try to protect, but it does not give rise to obligations. Article 18 ASEAN HRD does not recognize a general right to citizenship; the right to citizenship is limited insofar as the individual has the right to citizenship ‘as prescribed by law.’ The Inter-American, European, and African systems have complaints mechanisms, ‘through which individuals can seek justice and reparation for human rights violations committed by a State party’ (Vela 2014, 54) and have organs which have issued decisions on cases dealing with citizenship and statelessness. Both the Arab and ASEAN systems lack a complaints mechanism which makes the jurisprudence of citizenship in their human rights law underdeveloped. Importantly, the five systems lack regular enforcement mechanisms. In fact, the structure of the international adjudication makes it very difficult to enforce international norms governing the relationship between an individual and the state of his  citizenship.

The object of both binding and non-binding instruments on citizenship is to guarantee every individual with at least one citizenship, and instruments have aimed particularly at also restricting denial of citizenship, with the adoption of the 1961 Convention on the Reduction of Statelessness to be considered as a leading step at the universal level for this purpose (Chan 1991, 9). Inspired as it is by Article 15 of the UDHR, the 1961 Convention forbids loss of citizenship in some cases where the consequences of such loss would be statelessness, and thus forms part of international human rights law on citizenship, even if its title refers to statelessness, not to citizenship.

As far as citizenship deprivation is concerned, Article 8 of the Convention is especially noteworthy. Article 8(1) stipulates that ‘[a] Contracting State shall not deprive a person of its citizenship if such deprivation would render him stateless’. The second and third paragraphs of Article 8 list a number of exceptions to this rule, permitting denationalization to entail statelessness in certain limited circumstances. Those circumstances include cases where the person affected had obtained the citizenship by misrepresentation or fraud (Article 8(2)) or had, inconsistently with his duty of loyalty to the Contracting State, conducted himself in a manner ‘seriously prejudicial to the vital interests of the State’ (Article 8(3)(a)(ii)).

At the European level, The European Convention on citizenship 1997 is of paramount importance, being the first comprehensive citizenship convention (Waas 2012, 245). This convention reproduces the content of the UDHR and the 1961 Convention, but the safeguards it puts in place against statelessness and arbitrariness are more extensive. On the one hand, the 1997 Convention reduces the grounds on which persons can be stripped of their citizenship even if they become stateless as a result. Statelessness is only tolerated in the case of fraudulent acquisition of citizenship, but not when the person concerned conducted himself in a way ‘seriously prejudicial to the vital interests of the State Party’ (European Convention on Nationality 1997, article 7(3)).

However, the latter deprivation grounds may only result in statelessness if the Contracting State made a declaration to that effect at the time of signature, ratification or accession. Yet the 1961 Convention not only contains guarantees against statelessness, but also against arbitrary state conduct. To this end, Article 8(4) demands that any citizenship deprivation be consistent with certain procedural safeguards: the deprivation must be in accordance with law, and the person concerned must be entitled to a fair hearing by a court or other independent body. Moreover, Article 9 of the 1961 Convention prohibits citizenship deprivation on racial, ethnic, religious or political grounds. Although it leaves no doubt that the international materials discussed above have singular authoritative value, it should be noted that their legally binding force is limited.

For example, the 1961 Convention and the 1997 Convention have not been ratified by all legal systems studied in this paper. In terms of membership, only the Netherlands is party to both treaties.France, in contrast, is party to neither, and the United Kingdom and Belgium have signed and ratified solely the 1961 Convention. Other bodies of legal instruments constitute the right to citizenship and put limits on its deprivation, and supervision of these international standards on citizenship has consistently recognized the increasingly narrow restrictions on the discretion of states in respect to denial of citizenship.

In addition to the aforementioned conventions, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, (Art, 5) the 1966 International Covenant on Civil and Political Rights, (Art, 24) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, (Art, 29) among others, have codified the right to citizenship and contain provisions which form a high relevancy for international law on citizenship. Countries such as the UK, Australia, the Netherlands, France and Canada have either signed or ratified them.

There seems in fact to be a relatively uniform recognition of a right to citizenship, although in the case of some instruments a limited version of this right is expressed. In the cases of Europe and African, interestingly, neither the ECHR nor the ACHPR recognize the right to citizenship. However, on a closer look at the system rather than just the instrument, there is evidence that points towards increasing recognition of this right in the regions.

On the European level, standards have been set by the Council of Europe and to a certain extent also by the European Union (EU) through EU law, although the latter has no competence per sein citizenship matters. There are relevant duties under customary international law constraining state autonomy in citizenship matters. Important customary international law principles contain the duty to avoid and reduce statelessness, the prohibition of arbitrary deprivation of citizenship, and the general obligation of non-discrimination.

It is natural to look at international law and see what it is proposing as the studied phenomenon is of an international nature as well as looking at what measures states are taking in order to tackle it. Yet, the challenge encountered in a legal analysis of foreign fighters is that their legal status is of a controversial nature and involves a conceptual ambiguity. This in fact is paralleled by the uncertainty as to its legal status as there is no legal regime for foreign fighters and other individuals involved in terrorist activities per se. Rather, there is a conflation among different legal regimes. Meddling between international human rights law and domestic criminal law blurs the issue. Regardless of this and the lack of a comprehensive definition at the international level, terrorist acts, mostly associated with these individuals are crimes under domestic law, under the existing international and regional conventions on terrorism, might qualify as war crimes or as crimes against humanity.

The very nature of the debate about individuals engaged in terrorist activities assumes that the phenomenon is a new category. Looking at the individuals themselves and their status, in most cases they are fighting in armed conflicts and more specifically in non-international armed conflicts (Kraehenmann 2014, 3). Accordingly, non-state armed groups, including foreign fighters, do not enjoy combatant immunity and may be prosecuted under domestic law for mere participation in hostilities (UN 2000, 5). International human rights law continues to apply during situations of armed conflict. As is the case with all other members of state armed forces or non-state armed groups, foreign fighters are, at a minimum, bound by the peremptory norms of international law (UN 2000, 13).

Importantly, international human rights law affirms that human rights apply to every human being simply by virtue of being human. In practice, however, the existence of a legal bond of citizenship between an individual and a state continues to be a prerequisite to ‘the effective enjoyment of the full range of human rights’ (Adjami, and Harrington 2008, 93). Edwards describes the substantive content of citizenship by exploring it from different yet interrelated perspectives: that of the state, the international law perspective and that of the individual (Alice, in Alice and Waas, 2014, 30). As individual human beings, our individual legal identity derives largely from our legal bond with one or more states, expressed through our citizenship (Batchelor, 2006) Therefore, the adoption of the various human rights instruments, as noted by Cassese, has had ‘such an impact on the international community that no state currently challenges the concept that human rights must be respected everywhere in the world’. He continues to note that ‘a general principle has gradually emerged prohibiting gross and large-scale violations of basic human rights and fundamental freedoms’, making massive human rights violations reprehensible (Cassese 2005, 59). Yet, what is essential is the ‘complementarity’ between universal and regional human rights documents, since the regional systems ‘operate within the framework of the universality of human rights’ (Trindade 2008, 5)

From a general level, international law in the present day continues to respect the principles of sovereignty and equality of states. This means that a state can never be compelled to undertake obligations under international law without having given its ‘consent to be bound’ (Waas 2008, 40). Therefore, any constraints on a state’s discretion over citizenship matters have been the results of the willingness of states to be bound by international legal instruments that contain provisions that have resulted in those constraints.

 

 

  1. Thesis and conclusions

The first thesis of this paper is that citizenship is a protected human right and the newly expanded laws on citizenship deprivation puts the depriving state at risk regarding its international legal obligations. Another thesis is that the discussion on citizenship deprivation has been recently dealt with extensively with the implications of international human rights and international humanitarian law on the ‘war against terrorism’ and shifted from an administrative measure to criminal one. In other words, this has been done by using the lens of both criminal and administrative measures implemented by States at the domestic level as a result of two UNSC Resolutions 2178 and 1373, corresponding instruments and the willingness of States to keep their terrorist nationals away from their borders by depriving them of their nationalities. Additionally, these two UN Resolutions, together with the States´ new legislative proposals, have changed the understanding of who is subject to deprivation powers. Traditionally, citizenship deprivation has only been applied to naturalized citizens, as those who are native-born citizens were at risk of becoming stateless. Keeping in mind that some citizens are more protected than others depending on their category (individuals of dual citizenship or individuals of one citizenship).

A third thesis of this paper claims that deprivation of citizenship refers to rendering the individuals concerned of their citizenship, causing them to forfeit the rights they held as nationals. Although only a small number of nationals have had their citizenship stripped by their countries of citizenship, the newly adopted legislation in several states, mainly in Europe, in respect to citizenship deprivation has a major effect in the sense that citizenship as a legal status through which nationals enjoy human rights has become conditional on the citizen´s behaviour. This means that human rights violations, alienation and strained relationships between individuals and the State are ‘recognized as conditions conductive to the spread of terrorism’, Dowding and Mckeon (2016, 6).

This study has observed a differentiation in international human rights law between nationals by birth and nationals who have gone through the naturalization process and has noticed that, for States, deprivation of citizenship acquired by naturalization is often much easier than deprivation of citizenship acquired by birth or otherwise. As evidence for this, for example, deprivation of citizenship as a result of fraud is applicable only to naturalized citizens. Consequently, it is clear that where safeguards to prevent deprivation of citizenship resulting in statelessness are present, terrorist nationals of dual citizenship are more vulnerable to deprivation than those with a sole citizenship. A state can have a citizenship deprivation act compatible with international human rights law as long as it concerns terrorist nationals with dual citizenship. Although there is no outright ban on revoking the citizenship of dual nationals there is, however, at the very least procedural obligations that States must carefully consider. On the other hand, international human rights law permits States to deprive individuals of their sole citizenship, so long as the requirements of the 1961 Convention are satisfied.

Finally, this paper does not argue that states should adopt a particular stance towards citizenship law to comply with their IHRL obligations. It rather presents the case that the existence of national deprivation of terrorist nationals is not to be avoided and the deprivation practice has in recent years become a serious concern and it is not only an exception or a random event, and that this in turn has particular important consequences for IHRL and the understanding of citizenship and statelessness. Notwithstanding the fact that at the time of the drafting of the conventions on citizenship, the domestic legislation of many States permitted denationalization on several grounds, it was agreed to envisage a list of circumstances authorizing deprivation even where that would render an individual stateless. Among the listed exceptions, Article 8(3)(a) makes reference, in particular, to acts of disloyalty and conduct seriously prejudicial to the vital interests of the State. Such an exception, covering acts like treason, espionage as well as terrorist acts, can, however, be invoked only if it is an existing ground for deprivation in the internal law of the State concerned, which, at the time of signature, ratification or accession, the State specifies it will retain.

References

Adjami, Mirna & Harrington, Julia (2008). “The Scope and Content of Article 15 of the Universal Declaration of Human Rights.” Refugee Survey Quarterly 27.3. pp 93-109.

Alice, Edwards (2014). ‘The Meaning of Citizenship.’ Cambridge University Press Print. pp. 11-43.

Arendt, Hannah (1994). The Origins of Totalitarianism (New York, Harcourt Books). 28 p.

Cloots,Elke (2017). The Legal Limits of Citizenship Deprivation as a Counterterror Strategy. Volume 23 / Issue 1. pp. 57-92.

Batchelor, Carol A (2006). Transforming International Legal Principles into National Law: The Right to a Citizenship and the Avoidance of Statelessness, Refugee Survey Quarterly, 25: 3. pp 8-25.

Bilgram, Lisa (2011). International Law and European Citizenship Laws. EUDO Citizenship Observatory. 29 p.

Cassese, Antonio (2005). International Law. Oxford University Press. 612 p.

Chan, M. M. Johannes (1991). The Right to a Citizenship as a Human Right, 12 Human Rights L. J. 1. 20 p.

Donnelly, Jack (2003). Universal Human Rights in Theory & Practice 10, 2d, 10.

Dowding, Ryan and Mckeon, Charles (2016). Criminal and Administrative Measures against ‘foreign terrorist fighters. Human Rights Law Clinic Papers. 31 p.

Goethem, Henk, Van (2006). ‘A few legal observations pertaining to citizenship’, Armenian Journal of Public Policy, special issue.

Kingston, Rebecca (2005). The Unmaking of Citizens: Banishment and the Modern Citizenship Regime in France, Journal Citizenship Studies Volume 9, 2005 – Issue 1, 9:1. pp. 23-40.

Kraehenmann, Sandra (2014). Geneva Academy of International Humanitarian Law and Human Rights, Academy Briefing No. 7, ‘Foreign Fighters under International Law’. 69 p.

Macklin, Audrey (2014). The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? Robert Schuman Centre for Advanced Studies EUDO Citizenship Observatory. 65 p.

Malet, David Samuel (2009). Foreign fighters: Transnational identity in civil conflicts. 322 p.

Mantu, Sandra (2015). Citizenship in times of terror: citizenship deprivation in the UK. Centre for Migration Law. 20 p.

Mendelsohn, Barak (2011). Foreign Fighters—Recent Trends, Orbis Journal of Foreign Affairs, Vol. 55, No. 2. pp. 189-202.

Pocock, J.G.A.  (1995). The Idea of Citizenship since Classical Times, in R. Beiner (ed.) Theorizing Citizenship, State University of New York Press. 15 p.

Spiro, J. Peter (2013). “Expatriating Terrorists”, Fordham Law Review. 20 p.

Sykes, Patrick (2016). Denaturalisation and conceptions of citizenship in the ‘war on terror’, Citizenship Studies, 20:6-7, DOI: 10.1080/13621025.2016.1191433. pp. 749-763.

Travalio, Greg and Altenburg, John (2003). “Terrorism, State Responsibility, and the Use of Military Force,” Chicago Journal of International Law: Vol. 4: No. 1. pp. 1-25.

Trindade, Cançado, Antônio Augusto (2008). Universal Declaration of Human Rights. 5 p.

UN- United Nations (2011). Human rights and arbitrary deprivation of nationality, Report of the Secretary-General, 16 p. (A/HRC/19/43).

UN- United Nations (2000). Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, Report by the Secretary-General. 17 p. (A/70/330)

van Waas, Laura (2008). Citizenship matters, Statelessness under International Law. School for Human Rights Research Series, Volume 29. 503 p.

van Waas, Laura (2016) Foreign Fighters and the Deprivation of Citizenship: National Practices and International Law Implications, in A. de Guttry et al. (eds.), Foreign Fighters under International Law and Beyond, pp. 472-475.

van Waas, L.E. van (2012). Fighting statelessness and discriminatory nationality law in Europe. European Journal of Migration and Law. pp. 243 – 260

Vela, María José Recalde (2014). How far has the protection of the right to nationality under international human rights law progressed from 1923 until the present day?. Tilburg University, Understanding Society, 112 p.

Weis, Paul (1979). Citizenship and Statelessness in International Law, Kluwer Academic Publishers Group, Dordrecht.

Weissbrodt, David and Collins, Clay (2006). The Human Rights of Stateless Persons, 28 Hum. Rts. Q. pp. 245-250.

A Theory of Citizenship Rights

«The same rivers are constituted by the regular flow patterns of different and different

waters which scatter and gather come together and flow away approach and depart».

(Heraclitus, Fragment 214)

 

«For justice exists only between men whose mutual relations are governed by law;

and law exists for men between whom there is injustice».

(Aristotle, Nic. Eth. V, 6)

 

«Quisquis est in territorio est de territorio. Quisquis in territorio meo est, meus subditus est».

 

«Citizenship is man’s basic right for it is nothing less than the right to have rights».

(Judge Warren’s dissenting opinion in Perez v. Brownell, 356 U.S. 44, 64)

 

«I’m not skeptical about the idea of universal human rights.

I’m skeptical about what I call positive rights».

(John Searle)

 

«There can be no such thing as either a creditor or a debtor race.

In the eyes of Government, we are just one race: it is American».

(Antonin Scalia, 1936 – 2016)

 

«The cosmopolitan moral concern is therefore better expressed in the language of rights

than in the language of democracy».

(J.K. Schaffer, Democrats Without Borders)

 

 

  1. Democracy and civil liberties

Democracy may be broadly understood both as a form of government in which all the citizens of a state are involved in making decisions about its affairs and as a political ideal that claims equality of rights, privileges and freedom for its people[1]. The first democratic principle gives citizens political agency, that is, the right to participate in the making of the laws by which they are to be governed. The second democratic principle is to treat everybody fairly by giving people civil liberties[2]. The two are bound together in that full equality of rights comes only with political agency and the status attached to it: citizenship. Therefore, to meet the requirement of a fair government, every members of a democracy should be a citizen[3].

            Several scholars highlighted the fact that the endorsement of citizenship deprivation by liberal democracies undermines both the idea of equality between citizens and the idea that citizenship constitutes a secure ground for exercising individual rights[4]. It also undermines the idea of the state as a form of protection and security offered through citizenship. Citizenship deprivation applied to certain categories of citizens[5] weakens the idea of the state as a social contract between equal members and the idea of the equality of rights and duties between citizens.

            However, in actual democratic states, the acquisition of civil, political and social rights for people not born in the state or from citizens of the state, i.e. immigrants, is disconnected from the acquisition of citizenship[6]. Civil liberties such as public education, health care or social security benefits grant people rights in function of their contribution to the state (and the reciprocity principle can also be called the contributory principle). Citizenship and political agency are derived from permanent residence in the state. The direct consequence of that disconnection is that those who compose ‘the people’ of a democratic state are not necessarily those who constitute its ‘demos’. Tomas Hammar[7] introduced the term “denizenship” to describe the status of immigrants who enjoy most rights of citizenship except that of political participation. The value of self-governing polity and equality is then threatened if some people are both considered as belonging to the state and as outsiders. This inconsistency does not necessarily mean a failure of the democratic ideal, but signifies rather a failure to approach citizenship through its cosmopolitan component. The current residence-based way of thinking citizenship for immigrants shows its conceptual limits.

            The aim of this paper is then to redefine citizenship for immigrants to avoid unjust political exclusions from political agency. It will be argued that residence is not a good ground for excluding immigrants from or granting them with citizenship. The evaluation of someone’s citizenship is closely related to political participation and reciprocity. Indeed, political participation is a right and as such its acquisition should not be considered differently from the acquisition of other rights. The contributory principle is a sufficient principle from which to evaluate both immigrants’ entitlement to civil liberties and citizenship[8]. It will be suggested that grounding citizenship on that principle would reduce the number of denizens and grant some of them with citizenship.

            This paper focuses on the difference between political rights given on the basis of the reciprocity principle and the right of political participation given on the basis of residence. This work does not intend to focus on the difference between human rights and political rights and thus human rights will be taken as political rights, they are granted on the basis of the reciprocity principle. Indeed, these rights can be understood as the first reciprocal contract made between an individual and a state. A state must recognize the dignity of each human being present in its territory.

1.2. Neo-constitutionalism and human rights

‘Neo-constitutionalism’ is a term recently suggested in legal and political philosophy to label a new perspective to look at and to discuss of law and its ontological, phenomenological and epistemological dimension i.e., its forms of identification, application and cognition[9].

            The term ‘neo-constitutionalism’ has been proposed and first used by some exponents of the Genoa Faculty of Law (belonging to the so-called “Tarello Institute for Legal Philosophy”)[10] to capture and to account for what, despite any difference in the arguments adopted and/or in the tenets maintained, emerges as a common assumption in the last two or three decades writings by legal and political philosophers as Robert Alexy, Ronald Dworkin, Carlos Nino, and, in Italy, Gustavo Zagrebelsky and Luigi Ferrajoli[11] .

            The assumption along with the very notion of law together with its forms of identification, application and cognition needs to be radically revisited because of the prominent role and pervasive influence fundamental rights. This influence has been increasing since the conclusion of the World War II in both in the domestic law of an increasing number of western countries and in international law. This is the reason whay fundamental rights have been so deeply affecting all major aspects of law and this justifies the need and presses the claim for a new understanding of its notion.[12]

            Neo-constitutionalism deserves and requires a legal positivist reading in order to account for its true distinguishing feature: the demand for a new definition of the notion of law[13]. This reading is needed because of the radical changes a great number of positive legal systems have been going through since the statement and the protection of fundamental rights have been taken to be their grounding constitutive components.

            The recognition of human rights is the most outstanding feature of contemporary legal systems, as since the middle of the 20th Century individuals are immersed in a culture of rights. Neo-constitutionalism is one among many concepts that has been used to designate and study this phenomenon. Some of the central characters of the culture of rights belonging to modern state law,[14] here referred to as ‘neo-constitutionalism’, can not be explained consistently without a reference to natural law.

‘Neo-constitutionalism’ designate a constitutional model, namely that collection of normative and institutional mechanisms realised in an historically determined legal-political system[15] which limit the powers of the State and protect fundamental rights. It can simply refers to a component of positive law and to its corresponding notion in legal dogmatics,[16] where it rather refers to an explicative model which positive law can be given because of the way legal systems may happen to be figured out.[17]

Finally, the term neo-constitutionalism can be used in the language of legal and political philosophers[18] to refer to principles and the values which it explicitly states: the fundamental rights of the European Union, described below.[19]

  1. Seeking human rights in the nature, history, enforceability and (in)determinability of European Union values

The 1992 amendments provided by the Maastricht Treaty only formulated expectations towards the EU member states by codifying fundamental principles[20]. The real tuning point was marked by the Treaty of Amsterdam. The principles laid down in Article 6 of the Treaty of the European Union served as the yardstick for evaluating the activities of the Union[21]. The 1997 treaty amendment further designated these principles as the basis of the new constitutional order of the Union: “not only a restrictive, but also a constitutive European constitutionalism found its recognition in positive law”[22].

            The Lisbon amendment renamed the fundamental principles of the Union as ‘values’ and significantly broadened their scope[23]. In the Lisbon Treaty, under the heading ‘Citizenship of the Union’, there are a series of rights, such as the right to petition the Parliament, the right to address the ombudsman, the right to good administration, the right of access to official documents and the right to free movement that are not reserved only for EU citizens but recognized to all natural persons and juridical resident or having the seat in the Union.

            The Lisbon Treaty constituted another milestone in the history of European integration, since the political union once initiated by the Maastricht Treaty was completed by awarding legal personality to the European Union[24]. After less than a decade of standby mode, the “Charter of Fundamental Rights” also became a mandatory source of law. This way, the Charter rights and principles codifying the previous fundamental law practice of the European Court of Justice, which can also be considered as the detailed elaboration of the values of the Union, became tangible  (“They leave behind their shadow existence”)[25].

            The Charter of Fundamental Rights of the European Union was solemnly proclaimed by Parliament, the Council and the Commission in Nice in 2000. It was proclaimed again in 2007 After being amended. However, the solemn proclamation did not make the Charter legally binding. The adoption of the draft Constitution for Europe, signed in 2004, would have granted it binding force. The failure of the ratification process meant that the Charter remained a mere declaration of rights until the adoption of the Treaty of Lisbon.  Following the entry into force of the Lisbon Treaty in 2009 the fundamental rights charter has the same legal value as the European Union treaties.

            The Charter contains some 54 articles divided into seven titles. The first six titles deal with substantive rights under the headings: dignity, freedoms, equality, solidarity, citizens’ rights and justice, while the last title deals with the interpretation and application of the Charter. Much of Charter is based on the European Convention on Human Rights (ECHR), European Social Charter,  and the case-law of the European Court of Justice.

            The EU has attempted to raise the profile of the Charter so that citizens are more aware of their rights e.g., the fifth title (“Citizen’s Rights”) covers the rights of the EU citizens such as the right to vote in election to the European Parliament and to move freely within the EU[26]. It also includes several administrative rights such as a right to good administration, to access documents and to petition the European Parliament.

            Article 51(1) of the Charter addresses the Charter to the EU’s institutions, bodies established under EU law and, when implementing EU laws, the EU’s member states. In addition both Article 6 of the amended Treaty of European Union and Article 51(2) of the Charter itself restrict the Charter from extending the competences of the EU. A consequence of this is that the EU will not be able to legislate to vindicate a right set out in the Charter unless the power to do such is set out in the Treaties proper. Furthermore, individuals will not be able to take a member state to court for failing to uphold the rights in the Charter unless the member state in question was implementing EU law[27].

            Another significant characteristic of the Charter is its innovative grouping of rights, whereby it abandons the traditional distinction between civil and political rights and economic and social rights. The Charter also, at the same time, makes a clear distinction between rights and principles. The latter, according to Article 52(5), are to be implemented through additional legislation and only become significant for the courts in cases involving the interpretation and legality of such laws[28].

2.1.  Values and principles in the law of the Union

By joining the European Union[29] States became part of a system of multi-level governance where  the legislative, executive and judiciary powers are shared between nations and the Union. The result is a European constitutional space, where the whole “corups iuris” of the Union appears alongside the constitutions of the member states as a sort of partial constitution[30].

            While assessing Union values and principles the relationship between such values and principles must first determined under Union law. In Art. 2, the Lisbon Treaty provides a significant amendment. The principles previously laid down in Art. 6 of the Treaty of the EU were elaborated as values and further values were added. Values are merely a “rebranding” of the previous principles of the Union, while the nature and role of the new values of the Union[31] are, however, consistent with principles. This conceptual distinction has probably been motivated by the constitutional power’s intention to set apart values from principles[32].

            Bogdandy states regarding the conceptual distinction between values and principles, that in this respect the Lisbon Treaty may be deemed problematic. Namely, it designates the fundamental principles of the EU as values and presents them as the ethical conviction of the Union citizens. Value-based discourses often tend to assume a paternalistic dimension[33]. The terminology, according to Bogdandy, is rather misleading, as values are “expressions of fundamental ethical convictions” and the values introduced by the Lisbon Treaty should in fact be recognized as legal norms and fundamental principles, given the manner of their codification and possible legal sanctions ensuing from their breach[34].

            A formalised political route on the basis of Article 7 TEU[35] and the infringement procedure initiated before the Court of Justice of the European Union[36] seem to be the two main areas of institutional relationship within the member states. A proposal will be discussed later that would open up the possibility for the individual enforcement of fundamental rights with recourse to Article 2 of the Treaty on the principle of subsidiarity (Article 5 paragraph 3 TEU) or on the principle of cooperation binding the member states (Article 4 paragraph 3 TEU) that can only be enforced via the annulment procedure or the infringement procedure before the ECJ[37].

            Another dimension with respect to which the functional theory of citizenship offers a criterion for a critical assessment of current practices concerns the temptation recurring to crush the problems of citizenship solely on ownership as mere conferment of the status, without discussing and explaining what are or should have the powers to which entitles[38]. This type of reduction is evident in the project to connect citizenship to residence which was launched on the heels of the Treaty Amsterdam, in particular the Title IV on the area of freedom, security and justice, which led to the status of long-term resident to third-country nationals.

2.2. The normativity of values and principles in the legal order of the Union

Some years ago, Robert Alexy explained that a normative system is not a legal system unless it formulates a “claim of correctness”. This occurs when governmental authorities act with the assumption that what they are doing is correct, and do not consider whether it is actually entirely true. According to Alexy, when this assumption is not formulated, and when those who govern only take a personal or a class advantage with their power, practice of what law does not amount to a legal system.[39]

            It seems evident that not just any content allocated to what is assumed as correct will attain legality for a normative system. For that reason, Alexy complements his thesis on correctness with a reference to ius-fundamental principles. The validity of the assumption of a governmental action is basically expressed through its reference to fundamental rights.

            What does this mean and when does a State recognize, identify, protect and promote rights? When does it put forth its “politics of rights” as imposed by its constitution[40]? How can human rights be consistently conceptualized, indexed, justified and interpreted[41]? In the preceding statements, each of the problems being dealt with has directly involved these questions. The answer to such questions necessarily requires appealing to instances beyond the legal texts where rights are recognized.

            Sebastian Unger’s theory states that principles only have a weakened force. For instance, those applying the laws are only required to enforce them as far as the legal and factual possibilities allow[42].

            According to Robert Alexy, the vehicle for that is discretion, with the proviso that principles should be enforced to the fullest possible extent (optimisation)[43]. As opposed to legal provisions that give clear sanctions to offences[44], Ronald Dworkin claims that principles provide arguments pointing in a certain direction, without prescribing any given decision[45].

            On the contrary, András Jakab disputes that rules and principles should be distinguished on the basis of their normativity. “We should assume that the so-called principles have the same type of normativity is merely their scope that is uncertain because of the vague and general expressions contained in their linguistic form”. Following Jakab’s theory[46], principles also share the fate of legal rules, in that there are only two possibilities: they are either breached or not, tertium non datur. The fact that the breach of a principle can only be established by way of appreciation (balancing) is only a methodological question and has no bearing on the normativity of principles. Principles are not enforced by way of optimisation, since that is rather the result of the application of rules and principles to specific cases (judicial balancing).

            Whether the theory of Alexy and Dworkin are accepted or Jakab’s approach to principles is chosen, it can be stated that principles possessing normativity and the fact that their normativity is disputed do not change the fact that in practice they are applied by way of judicial balancing.

            What are the obligations imposed by a EU principle on the national legislator? The legislator can only restrict the prevailing principles in the interest of achieving appropriate “legitimate” objectives. The jurisprudence related to facts that fall under the scope of EU law shows that the Court of Justice of the European Union examines the legitimacy of the objectives stated by the member states as well[47]. If an objective is unfounded (e.g., it is an economic objective or one that could be achieved without intervention), the restriction imposed by the member state is unlawful. It is nevertheless important to stress that the member states enjoy a broad margin in specifying the objectives of the policies they pursue[48] this is especially true about regulatory issues that have remained under the purview of the member states. In response to any risks or needs, the legislator automatically assesses the necessity and extent of intervention. The legislator is to observe the principle of proportionality in the realisation of their objectives: i.e., according to Alexy’s approach, besides the restrictions created by the regulations, the governing principles must prevail to the fullest possible extent or, according to Jakab’s views, the restriction must be legitimate.

            While the regulatory activities of the legislator of the Union are bound by the values and principles of the Union, national legislators are bound by a double obligation. The national legislator is also bound by the principles enshrined in the national constitution as well as the values of the Union. A good two fold commitment example is the verdict of the Bundesverfassungsgericht on the adoption of the European Arrest Warrant[49].

            Focusing on independently-verified leading cases globally, a combination of qualitative and quantitative analysis offered, as evidenced, the most comprehensive and systematic account of constitutional reasoning to date. “Despite substantial academic attention to the rise of judicial power, citizens know fairly little about how newly empowered courts interpret their constitutions and justify their decisions. To what extent is the language of judicial opinions responsive to the political and social context in which constitutional courts operate? Courts are reason-giving institutions, with argumentation playing a central role in constitutional adjudication. However, a cursory look at just a handful of constitutional systems suggests important differences in the practices of constitutional judges, whether in matters of form, style, or language”, stated (just some month ago) Jakab, consistent with Dyevre and Itzcovich’s legal approach[50].

2.3. The mixed nature of Article 2 in the Treaty of the European Union

The 2011 congress of FIDE has pointed out another interesting aspect of the relationship between the Charter of Fundamental Rights and Article 2 of the Treaty on European Union. It is with regard to disputed human rights that are not included in the Charter, such as the rights of minorities as,  Article 2 of the Treaty on European Union that could provide a basis for the protection of rights. The quite mixed nature of the values of the European Union presents an interesting problem[51]. Certain principles that wholly correspond to those provided by the Charter – e.g., the respect for human dignity -, while others appear as horizontal values that can be associated with several fundamental rights e.g., democracy. This means that “the values or principles found in the constitutional rights apply not only to the relation between the citizen and the state but, well beyond that, to all areas of law”[52]. This results in a radiating effect of constitutional rights over the entire legal system constitutional rights become ubiquitous.

            However, the Court of Justice of the European Union has not rendered any such judgements. This approach also coincides with the position of jurisprudence on the delimitation of the principles and rights laid down in the Chapter of Fundamental Rights: as opposed to the subjective rights provided by the Charter. Principles themselves cannot as such be invoked with direct effect before a national judge[53].

            As a result of the mixed nature of Article 2 TEU (i.e., fundamental rights and constitutional principles appear alongside each other), von Bogdandy splits Article 2 of the European Union between fundamental rights and other constitutional fundamental principles. Breaches against the latter principles can result in infringements of the constitutional values consolidating the constitutional fundamental principles[54], rather than violations against individual fundamental rights.

            From the analytical point of view, the complaints of those who deny the concept of citizenship are not very different from those, who deny the existence of rights as mere ideological constructs which is more common in the theoretical realist of law and absent in the world experience. In particular,  even thought it appears cryptic, the Kelsen’s formula, intends to allude here that legal institutions, such as ‘citizenship’, offer a case of intermediate terms. It may well argue that “citizenship” is a term that means nothing and is free semantic reference. However, it serves its purpose to count as a “technique presentation”.

2.4 Jürgen Habermas and his theory of “Citizenship and National Identity”

In view of the European crisis, Jürgen Habermas, acknowledged as one of the world’s most outstanding sociologists and philosophers, has brought his prestige and powerful eloquence. He had a considerable influence on the EU with his views concerning citizenship and, particularly, his ideas with regard to how Union citizenship and European identity could be established beyond the boundaries of Member States.  His countless public interventions have been published Europe all over in many languages. ”Democracy is at stake”, he has repeatedly warned, and Europe risks establishing a post-democratic regime of “executive federalism”.

           These drastic messages, however, are always accompanied by signals of hope and political appeals. He encourages listeners to view the crisis as an opportunity to strengthen the European project. The “strength” which he advocates is not merely Europe’s managerial potential and according to Habermas, “more Europe” also means deepening Europe’s democratic credentials[55].

            In contrast to so many commentators on the debate regarding the financial crisis and the future of Europe, Habermas, in his passionate pronouncements, pursues a demanding and coherent agenda based upon his long-terms explorations on the various facets of the European project. His work on this theoretical basis started with the essay Citizenship and National Identity,[56] just prior to the publication of his magnum opus on legal theory. Since then, Habermas has been ceaselessly devoted to the European project, both as a citizen and as a theoretician. As a theoretician, he conceives of the process of Europeanization as a challenge to his theory of the democratically constituted nation-state. From the perspective of a citizen, he views the process as a response to the catastrophes of the Twentieth century, for which Germany bears so much responsibility[57]. This intent is manifested in the project, as well as in the objective to defend democratic welfare-state accomplishments in the processes of globalization and European integration.

            As a theoretician on the constitutionalization of Europe, Habermas seeks to accomplish a type of analysis that not only grasps the facility of the processes of Europeanization but also achieves a normative concept that provides criteria and identifies the institutional conditions about whether the configurations emerging in the process of Europeanization “deserve recognition.”[58]

            In his more recent interventions as a citizen, Habermas has approached this aspiration again. He identifies the institutional causes for the crisis and states his polemics against the crisis management in Europe in terms that critically transform Schmitt’s affirmative observations on the steadily growing power of the executive into critical objections to the present course of the process of Europeanization. “Post-democratic executive federalism” is the term he uses to denote – and to criticize – Europe’s praxis. The European Union must not continue on the path it has taken due to the pressure of the crisis, but cease to coordinate the relevant policies in the governmental-bureaucratic style which has been customary until now and take the path of adequate democratic legalisation[59].

            The theoretical core of Habermas’s essay is in the reasons he gives for this postulate[60], in which Habermas specifically continues deliberations by Armin von Bogdandy, Claudio Franzius, and Ulrich K. Preuß.[61] He places a dual role for Europe’s citizens alongside the recognition that these rights are equally rooted in the democratic constitutional state[62]: they remain citizens of their states, but also become citizens of the Union[63]. With this construct, Europe’s ability to be a democracy becomes more theoretically plausible. In addition, however, the construct promises to provide criteria for democratic constititionalization of European governance and to come to terms with his functional requirements. Yet it is just at this point that it remains partially undefined. It is difficult to imagine which institutional architecture might satisfy Habermas’s normative ideas. As long as extreme uncertainties as to the causes of the crisis and the possibility of its democratic cure persist, it is even more difficult to understand which kind of practical guidance they might provide[64].

            Citizens are witnessing, instead, a reemergence of age-old animosities in Europe, the rise of populist movements and an erosion of the legitimacy of the governments in the countries that are most deeply affected by the crisis. It remains unclear how a political European leadership with secure democratic legitimation could be established. “Until these questions and problems are addressed”, American political scientist John McCormick noted in much more tranquil times, “Schmitt’s work and career haunts the study of European integration like a spectre”[65].

            So far it has proved difficult, if not impossible, to have a full and inclusive debate on the lofty ideal of ‘political union’ while the Eurozone crisis is still in its emergency phase. As long as this state of emergency persists, European politicians and officials will continue to be heavily focused on the pragmatic, day-to-day steps that, in their opinions, are necessary to save it.

            The notion of citizen is usually defined in relation to a national state’s sovereignty and its borders. Conservatively, citizenship has been supposed to be a national phenomenon and has been characterised as an institution or set of rights situated within the community of the nation state. However, this hypothesis in citizenship literature has been disregarded in the last two decades. Scholars from different social science disciplines have begun to postulate that citizenship is incrementally turning to non-national forms. In this regard, Habermas sympathizes with this idea.

            To summarise, in Citizenship and National Identity: Some Reflections on the Future of Europe, Habermas  examines the relationship of Capitalism and democratic citizenship. He believes that the market has its own independent logic that is separate and independent of the intentions of its human subjects/citizens. Actual society can see the free market hasn’t necessarily lead to the freedom of the people in the market, or the freedom of capital (for that matter). The economic structure, or lack thereof, created by human subjects, cannot constrain the creative and destructive power of international capital, and no person can foresee the movements of capital beyond their own control. The legislative, administrative, and judicial arms of the government become involved in the control of capital by passing laws that incorporate specific rules and regulations, whereby money becomes the basis for our interactions (have you accomplished anything today without the use of money?). This coalescence of the government, capital, and nation state is what Habermas terms “system integration.”

 

  1. Civil liberties and the reciprocity principle

If immigrants are admitted on a legal agreement basis, host states ought to give them the rights that correspond to the degree of membership that the agreement grants them[66]. This section explains briefly what this principle consists of in democratic states, like in Europe[67] or North America[68].

            For example, visitors and tourists must enjoy universal human rights[69] such as security. Human rights are the necessary rights[70] given to anyone traveling in a foreign state. Strictly speaking the traveler is not contributing to the state’s affairs but in virtue of their membership to the human kind, they are recognized as belonging to the host society and as such are eligible to what the author calls the “minimal reciprocity rights” that is human rights[71].

            Similarly, temporary workers must enjoy the benefits that are directly tied to their work on the top of human rights, and as just stated, are directly entitled to human rights in virtue of their membership of human race. Their membership is upgraded in the sense that  they are working in and for the host state hence they contribute to the state’s economy. This supplementary contribution must be acknowledged by the host state. Temporary workers are eligible to rights concerning working conditions (health and safety regulation, minimum wages, overtime pay, paid holidays and vacations) and social programs related to their work and to their temporary domestic status (unemployment compensation, health care, education).

            Generally speaking, the contributory principle works as a way to recognize immigrants’ affiliations with the host state. A visa is a conditional authorization granted by a country to a foreigner, allowing them to enter, temporarily remain within, or to leave that country. Visas typically include limits on the duration of the foreigner’s stay, territory within the country they may enter, the dates they may enter, the number of permitted visits or an individual’s right to work in the country in question. Visas are associated with the request for permission to enter a country and thus are, in some countries, distinct from actual formal permission for an alien to enter and remain in the country. In each instance, a visa is subject to entry permission by an immigration official at the time of actual entry and can be revoked at any time[72].

            A visa is most commonly a sticker endorsed in the applicant’s passport or other travel document. The visa, when required, was historically granted by an immigration official on a visitor’s arrival at the frontiers of a country, but increasingly today a traveller wishing to enter another country must apply in advance for a visa, sometimes in person at a consular office, by mail or over the internet. The actual visa may still be a sticker or a stamp in the passport or may take the form of a separate document or an electronic record of the authorisation, which the applicant can print before leaving home and produce on entry to the host country. Some countries do not require visas for short visits. In many practical contexts, forms of proxy, such as the passport, are obviously used, but citizenship should be taken strictly distinguished from what the attests. A student permit commits the immigrant to go to school as such as residing in the host state. In exchange the host state guarantees the immigrant rights tied to studying conditions and domestic ones. Rights are granted on the basis of a reciprocal relationship between the immigrant and the host state[73].

            The bigger that reciprocal relationship is, the bigger the membership to the state is, the more rights the immigrant gets[74]. For instance, Ayelet Shachar, in The Birthright Lottery: Citizenship and Global Inequality, argues that citizenship acquired by ius soli in an affluent society it can be thought of as a form of inheritance: a entitlement value, transmitted by law, to a select group of recipients conditions that perpetuate the possibility of transferring the ‘good’ to their heirs.

            For reciprocity and the theme, if immigration, Dora Kostakopoulou agrees that liberal political theory is based on the belief that individuals, irrespective of their class, caste, race, gender, nationality and so on, deserve equal respect and concern. In practice though, liberal democracies offer the right to participate in society on equal and fair terms and to profit from its goods on an equal basis only to those people who are recognized as citizens belonging to a particular nation-state. Migrants, for instance, are excluded from the benefits of reciprocity, they are expected to contribute to society by working, paying taxes and respecting the law, but they are not granted full social and political rights. They are accepted as full-fledged members of society that enjoy the rights of citizenship only after an exhausting and degrading process of integration and naturalization. Objecting to this national conception of reciprocity, Kostakopoulou pleads for a more comprehensive understanding thereof, according to which people should acquire membership (and all the rights it entails), not so much on the basis of their nationality, but due to their valuable contribution to a particular community. Diversity and pluralism should be welcomed in society and not suppressed. Community is a dull affair without disagreements, different beliefs, diverse imaginations and conflicts.

  1. Citizenship, time and space from Hobbes to Rawls

According to traditional political thinkers[75] (from Hobbes[76] to Rawls[77]), the state is a territory, a place, a delimited area for equal rights. In such a political space, all citizens are equal and this condition seems to be and to remain invariable in time. In such a case, the state is the privileged space for individual and social rights realized through citizenship. Citizens constitute a group of equal members[78], which share rights and duties within the political community. Indeed, Hobbes[79], Montesquieu and Locke identify the state as a form of protection and security offered to the individual through citizenship. Despite the fact that they differ in the object of this protection (life for Hobbes, family for Montesquieu, and property for Locke etc.) all of them conceived the state as a closed entity in which citizens are equal in rights and duties[80].

           Recently scholars such as Cohen, Bosniak and Carens[81] redefined such a traditional approach to citizenship focusing on the permeability of state borders and the moral issues raised by the presence of different membership statuses in liberal democracies[82].

           The political philosophical debate shifted from state-citizenship dualism in a closed society to flexible and uncertain plural membership in a globalized and interconnected world[83]. Such an approach raises several questions of fairness and justice related the presence of different membership statuses in liberal democracies. Nevertheless, within such a plurality of memberships, full citizenship remains traditionally considered a secure and safe membership status with a strong bundle of rights[84]: an ideal concept in which rights are protected and safe, particularly in comparison with other forms of membership in liberal democracies such as migrant membership.

           Within this framework, it is argued that some citizenship statuses[85] such as naturalized or dual citizenship can be precarious and limited and the acquisition of such statuses does not represent a secure and stable ground for rights. The limits and precariousness of citizenship are discussed in the framework of space and time.

           The body politic relates to time and space. It refers to time because it is a defined entity in time (it has a start and an end) and maintains itself in time. It relates to space because the state needs a particular territory in order to exist. As well as the state, citizenship refers to time and space. Indeed, if the state is a stable entity in space and time, the same consideration applies to citizenship. Citizenship could be considered an immutable, permanent given status (time) related to a certain territory (space). Thus, citizenship is a status defined by acquisition (time) and by territorial boundaries (space)[86].

            Citizenship exists in time and space but it is also limited by time and space. The first limit of citizenship is territory (space). Citizenship relates to a particular territory: a citizen is a citizen of a delimited territory and citizenship rights exist in a particular territory.

           The link between citizenship and territory is well known in the philosophical debate. Political philosophers (Rawls[87], Arendt[88]) have defined citizenship as bounded by membership and territory. However, some scholars have challenged this claim. For instance, Bauböck[89] states that citizenship is a bundle of rights, which transcends national boundaries and this fact is proved by the emergence of transnational norms of international law.

           On the contrary, the author believe that the relation citizenship/space is stronger that it could seem in the era of globalization[90]. Indeed, the bundle of rights[91] related to citizenship is spatially limited. Citizenship rights are linked to a certain territory. When a citizen moves from such territory, they cannot exercise their citizenship rights in the new territory (or at least not all of them) and they needs to have another membership which defines her new status. Therefore, a citizen in a foreign state has to appeal to another source of right (jus) in order to do not find  themself rightlessness. An individual cannot exercise her own citizenship rights recognized in a certain territory in a different territory e.g., one cannot access the welfare system in a foreign country only because their citizenship gives them access to the welfare system in their country. Such a case is not controversial in terms of justice or fairness. It just makes clear that citizenship is linked to a territory.

           The risk of citizenship revocation instead implies the loss of a full set of rights[92] in the territory in which citizenship has been acquired and thus, citizenship instead of being a secure and endless status, becomes a precarious and temporary one. Temporality refers to the second limit of citizenship: time. Indeed, the boundaries of citizenship relate not only to space (territory) but also to time. The extension of citizenship is limited by birth and death and/or by acquisition and deprivation, birth (acquisition) and death (deprivation) of citizenship do not necessarily correspond to individuals’ birth and death. Some citizens have an endless citizenship status while others have a citizenship that is potentially temporally limited.

            The latent risk of citizenship deprivation for naturalised citizens has divided the original political space in which all citizens are equal into a space in which some citizens potentially have a stronger and endless bundle of rights and others not.

4.1. Citizenship and residence

Citizenship is then the political and social status that is acquired when the reciprocal relationship between the immigrant and state is maximised[93]. It is comprised of  a full membership status and to the right of the associated political agency.

            On the one hand, citizenship indicates dispositions and identities that define those who hold the status and, on the other hand, citizenship is a political and legal status that grants the citizen the right to participate in collective decisions[94] through voting for representatives or participating actively in the decision-making process. The two are bound together in that political participation is the right corresponding to the maximal degree of membership. If full membership is recognized by the state then political agency is given to the new citizen[95]. Only full members of a democratic society can take part to collective decision making. However, contrary to the other degrees of membership, full membership is not recognized on the basis of the reciprocity principle[96]. Full membership is recognized on the basis of permanent residence[97]; only residents can be considered as full members of a democratic society and therefore be granted with political agency and citizenship. This will be explored more in the next three paragraphs.

            Full membership is defined as a profound link between an individual and a state[98]. Full members’ choices are affected by the state’ laws and most of the actions of the latter occur within the physical space delimited by the state’s territory. Their life is organized in function of the state’s structures, most of her relationships are bound to the state and her life chances depends on the opportunities given by the state. Their life is shaped by the state to the extent that they defined her identity in function of it. They identifies themself as belonging to the state’s political community and, reciprocally, they are recognized by other members as being one of them. A full member considers the state to be their home, their interests are directed towards its political community and the other members recognize their own interests as being intertwined with individual’s actions and choices[99].

            Only individuals having genuine interconnections with the state and its people may be recognized as full members and may apply for the status of citizenship and the right of political participation attached to it[100]. Full membership provides the normative basis for the acquisition of citizenship. When a state evaluates someone’s application to citizenship the goal is then to verify their degree of membership to the democratic society[101]. This realistically cannot be made by checking all her interconnections with the state and its people. This is why the traditional democratic position rejects and accepts citizenship on the basis of permanent residence[102]. Full membership is recognized on the basis of territorial settlement because only immigrants who have lives in a state for an extended period of time can prove sufficient affiliations to the state to acquire citizenship. Indeed, profound interconnections between the immigrants and the state take time to appear[103]. Therefore, the longer people live in the state, the stronger their connection to the state become and thus have a stronger claim to citizenship[104]. The traditional democratic reasoning is then to think that only permanent residence offers enough time to become a full member and being eligible to citizenship. It is only in conditions of residence that immigrants’ interests are liable to become interlinked with other citizens’ interests.

            Being present for a limited period of time does not establish a strong claim to full membership. By definition, moving people do not stay in the community and therefore do not have the time to create the necessary links to become a full member of the state. The direct consequence is that temporary immigrants, that is immigrants who are not long-term residents, cannot claim for citizenship and political agency[105].

            Indeed, renewing repeatedly a temporary visa is not sufficient to claim for citizenship[106], at most it reinforces immigrants’ claim for citizenship as their membership to the state becomes stronger. Actual democratic states will not recognize full membership to these immigrants if they do not convert their temporary visa into a permanent one[107]. Temporary immigrants cannot claim political agency before residing on a long-term basis in the state. For example, the European Union grants immigrants with a right of permanent residence after they have been residing in an EU state for 5 years[108] and only then can they ask for citizenship.

            To sum up, all immigrants who are not residents of the host state[109] are denied political agency on the basis that they are not full members of the host state society. The author questions this reasoning. By agreeing that citizenship can be granted only to full members of a democratic society and that full membership is that kind of profound connections between an individual and the state that appears with time, it can be argued that residence in the state is not necessary to become a full member of a democratic society: “Marshall’s views were strongly shaped by a critical reaction to Marx and Marxism. He wanted to show also that class conflict was neither the main motor of social transformation nor a vehicle for political betterment”[110]. Therefore, residence is not a good criterion for determining immigrants’ entitlement to citizenship. It will shown that some temporary immigrants can be full members of a democratic society without residing in the host state[111]. This will lead to look for a new criterion to grant immigrants with citizenship.

  1. Temporary immigrants and full membership

The first step to find out if it makes sense not to consider temporary immigrants as full members of a democratic society. This will be done by the analysis of two types of temporary immigrants: controlled admission with return conditionality immigrants and free admission migrants[112].

            The author relies on Kant’s justification of what he calls the “cosmopolitan law” (1795) to argue that this type of temporary immigrant cannot be considered as a full member of the host society. For Kant, visitors have rights to hospitality and are protected by the state during their stay, but they cannot enter in a state, settle and spread (and impose) their home culture. This law is to be understood as a restriction to colonialism: visitors can enter a state if their visit does not interfere with the host state’s affairs and structure. The reason is that visitors do not belong to the host state’s society so they have no rights to have a voice in the host state’s affairs[113]. Indeed, visitors do not have the same interests for the community as the residents. They do not define themselves through the structure of the host state. Indeed, their presence in the host state is related to an external reason that does not concern the host country. Visitors’ interests are not intertwined with the host state’s interest because they are only there to visit or to spend a short time in the host state. Visitors do not build any genuine link with the state[114]. For example, a year abroad for a visiting student is essentially an international experience added to a degree from the state of origin. The year abroad has a meaning from the state of origin’s perspective whereas from the host state perspective it is primarily a special treatment to host the student.

5.1. Controlled admission with return conditionality immigrants

Temporary immigrants[115] with return conditionality are immigrants who have a visa or a residence permit with a fixed expiration date which means that the host state expects them to leave its territory at the end of a fixed period[116]. Their visa is non-renewable e.g., student permit, or renewable after a certain time out of the state e.g., tourist visa. In both cases, it means that their time in the host state is limited and that their opportunities to integrate the society are restricted. (A prolongation of the visa is generally possible while the immigrant is still in the host state but after that prolongation an exit out of the host state is mandatory if the immigrant wants to come back).

            The inventory assesses who qualifies as a “temporary migrant” in law and policy in European and international perspectives[117]. The question is raised how time frames play a role for such an assessment seeing that certain instruments envisage a specific time-lapse for the state to confer inclusion, security of residence and related rights facilitating integration, in particular in view of labour migration[118], to mobile individuals. Moreover, how is temporariness framed in respect of human mobility and which role does it play in determining a social phenomenon involving cross-border mobility as temporary migration[119]? This research takes place in times of complex transnational processes often denominated as ‘globalization’ in which the transnational mobility of people has taken new and unexpected dimensions with the emergence of so-called transnational social spaces. The transformative characteristics of people’s transnational mobility imply increased and more diverse border-crossing connections, a growing recognition of the possibilities and challenges of activities that transcend state boundaries and normative frames controlling mobility as temporary or permanent beyond individuals’ intentions and changing prospects; and the growing integration of economies, politics and social relations on a global scale[120]. What does “temporary” in the literal sense mean[121]? The Oxford English Dictionary Online defines the term as “lasting for a limited time; existing or valid for a time (only); not permanent; transient; made to supply a passing need.” From this, one could conclude that temporary is defined as the opposite of permanent as literal interpretation. Yet, when bringing into the picture transnational social spaces characterizing cross-border human movements the answer to that question may not be as straight forward and clear cut divisions between what is temporary and what is permanent are far from obvious[122]. The relationship and interaction between temporary and permanent is vital for understanding of how temporary migration is framed in legal and policy terms both by supranational instruments and standards as well as by the nation-state and will be expanded below.

            For instance, students outside of the European Union must request an entry visa from the Italian consulate for the purpose of study prior to arrival in Italy. Foreign Students participating in a European exchange program and who got a residence permit issued by a country member of the EU, may enter Italy for stays longer than three months without needing a visa. As long as the student is enrolled at a university or in a university course, he or she may enter Italy in order to continue studies already begun in their host county or in order to integrate themselves with a program of related study. In this case, the student must attach a document issued by their home university to their permit to stay attesting that the courses that student will take at the Italian University accord with their area of study at the home University.

            EU students who plan to stay in Italy for longer than three months are not obligated to ask for a permit to stay. After three months the student must register themselves as residents of an Italian city. In order to do this, the student must present a document that attests to their enrollment at the Italian University. For stays less than three months students are not required to register as residents.

            Students from outside of the EU do not require a permit for stays shorter than three months,  but are required to declare their intention stay. Students coming from a country which does not apply to the Schengen Agreement must declare to the border police at the time of entry into the Italian territory. Students coming from a country that applies to the Schengen Agreement must declare at the Italian Police Station within the first eight days in Italy. Failure to submit a declaration of presence will result in expulsion from Italy. The same penalty is enforced if the student overstays their declared time of study. For stays longer than three months, foreign students must apply for a permit to stay within eight working days of their entry into Italy[123].

5.2. Free admission of migrants

Temporary immigrants with free admission are, at the same time, immigrants who are free to enter or leave the host state[124]. Such immigrants are not exposed to any control with regard to their admission on the host territory. Immigrants involved in a continuous round trip between two or more countries, such as refugees returning to their home state or working migrants who live near the border of one state and work in another state, belong to this type of temporary migrations.

            In a field survey on migrations in Bosnia-Herzegovina[125], Isabelle Delpla[126] studied what the “back and forth dynamics” of migrants moving between several countries[127]. Focusing on the case of returnees, she describes their identity and membership as being divided between their state of origin and their host states: they belong to two states. Indeed, the membership to the host state can be explained by the fact that refugees who are forced to flee their home states do not have any prospect of returning there in the near future, therefore they arrive at the host state looking for a new home and a new identity, even though this new identity is much harder to get than expected because of the hostility refugees have to deal with in the host state. These refugees eventually create profound connections with people and the state and when the possibility to come back to their home state arrises, refugees often find that home that is no longer the home that they used to know. The territory that they used to live in is a newly born state and they do not reside in it. However, what justifies that returnees ought to be granted with the citizenship of this state is that they still belong to this territory because they are part of its history. A whole part of their life belongs to this state. It is clear that their membership has been divided between the two states. There are members without borders belonging ‘here’ and ‘there’. This double membership explains the back and forth dynamics between the two states. Instead of choosing one or the other country, the former refugees adopt a living strategy based on that double membership. They do not settle permanently in one or the other country but they constantly live in both states.

            To sum up, this field survey shows that full membership is not necessarily linked to residence because it is possible that immigrants do not live permanently in a state and are full members of this state. Affiliations with a state can come from a shared history or ancestry that is not based on a current residence in the state[128]. This observation leads to the conclusion that residence is not the only ground for determining immigrants’ full membership to a state and therefore can not be the only criterion for deciding on immigrant’s entitlement to citizenship and political agency.     Asking immigrants to permanently settle in a state to insure that they have sufficient links with the state before granting them with citizenship is a counterproductive process that can be avoided if another criterion to judge on immigrant’s full membership to the state is found[129]. In the next sections, three attempts at finding a better criterion will shown with their limits before the author offering their own criterion.

  1. Citizenship and the “Round-Trip-Principle”

Delpla, on the basis of the results of her field survey, offered a thought experiment based on Rawls’ veil of ignorance[130]. People should choose the constitutive principles of their state without knowing where they are, whether they are in their state or out of its borders[131]. In particular, the key concept of the Rawlsian justice as fairness is the idea of original position where initially self-interested parties are located behind the veil of ignorance. The veil of ignorance is to ensure that the individuals making decisions on the future terms of cooperation are not biased. It is an assumption that certain particular knowledge on the actual position of parties is to be “ignored”: “Since all are similarly situated and no one is able to design principles to favour his particular condition, the principles of justice are the result of a fair agreement or bargain”[132].

            Residence in the state would obviously be a pointless criterion to determine someone’s membership to the state as it could be the case that they are living in another state[133]. Basing her analysis on the actual back and forth dynamics that characterizes migrations, Delpla suggested that citizenship should be established as what is translated as “the round-trip principle”. The idea is to enable people to be citizens of a state on the possibility that they live outside of it. Delpla proposes a general principle to grant citizenship that goes against the state-based way of thinking citizenship. This means that not only does she challenges residence as a good ground for the acquisition of citizenship for immigrants but also does she challenges the fact the citizenship is automatically given to children born in the state (jus soli) or from citizens of the state (jus sanguinis). Her argument will be only used in the case of immigrants’ citizenship, as the author does intend to challenge the whole concept of citizenship only to find a principle that does not unfairly exclude immigrants from citizenship.

            Citizenship is immediately international instead of being fixed to permanent residence in the state. Indeed, the field survey revealed that returnees’ living strategy consists in dividing tasks between the different members of the family. Some return to their former home state[134], some settle definitely in the host state and others do not settle, they move back and forth between the two countries and therefore live in both. Founding citizenship in the “round trip principle” enables immigrants to move out of their state of origin and to keep their citizenship even if they do not come back to their state. It also enables immigrants to acquire citizenship in their host state even if they do not permanently reside there.

            The “round trip principle” is appealing in that it reduces the importance of the borders[135] of state in the acquisition of citizenship – one does not have to live inside that state to be citizen of the state. Full membership is not defined by residence anymore. However, the notion of full membership is based on a restrictive principle that unfairly excludes some immigrants from citizenship as full membership is still attached to territories[136]. Indeed, Delpla’s concept of full membership is attached to the refugees’ back and forth dynamics and it is unfair that the refugees are not granted with citizenship of both their host country and the newly born state where they used to live in because they are full members of the two states even if they do not reside in the two states. On one hand, they rebuilt their entire life in the host country. On the other hand, the newly born state is their former home, it is the root of their identity. What characterizes the refugees’ back and forth dynamics is that they have strong ties in each state and they are bound to the territory of these communities. Their full membership is strictly speaking linked to a jus soli, even if the immigrant does not live in the state anymore or if the state disappears they keeps their full membership[137] over time because they are attached to the ground of this territory before being attached to the state that sits on it. Delpla reproduces the residence principle in that full membership is still fixed to a territory of present or former residence. The immigrant does not have to live in the state but has to be connected to its territory and community. The direct consequence of the “round trip principle” is that is excludes from citizenship immigrants who have never lived in their host state such as frontier workers who reside near the border of one state but work in another state.

            However, the theory of narrative identity shows that migrants’ membership is cumulative as it is built by the various experiences that they have in both their home state and their host state[138]. Their sense of belonging to one or the other country is continuous with their displacements[139]. The more time migrants spend in a territory, the more experiences they share with people and the host state results in their membership being more rooted in the host state. Membership is best described as an interactional process that refers to how migrants multiply their connections with the host state in function of their numerous displacements rather than as a fixed concept based on the territory. Residence can of course help creating links between migrants and their host state. Residing in one state reinforces the sense of belonging to one community but, residence is not necessary to make someone a member of a society. Only multiple and repetitive experiences are necessary to enable migrants to build some connections with their host state. Bolzman and Vial[140] showed that frontiers workers who work between France and the canton of Geneva develop a cross-border way of life with double membership to both states even though they only reside in one of them. Indeed, their place of residence is dissociated from their place of work but their social activities occur in a space without borders[141].

            To sum up, the example of frontiers workers shows that full membership is not necessarily linked to a territory but to degrees of connections that you share with the state. Delpla’s principle is underinclusive as it excludes some immigrants who are full members from citizenship and political agency.

  1. Citizenship and the “All affected interests principle”

An alternative approach would be to focus on immigrants’ interests and to verify immigrants’ membership in function of the “all affected interests principle”[142]. The reasoning is that if immigrants find their interests interlinked with some political decisions, they should be included in the making of these decisions[143]. Indeed, it was shown earlier that full membership is essentially defined as interlinked interests and that full membership is what makes someone eligible to political participation. So, every immigrant who shares reciprocal interests with some members of the democratic society[144] is defined as a member of that same democratic society and is eligible to take part in collective decision-makings that affect them. As a matter of fact, it makes sense to think that as soon as you are bound to a decision by your interest, you are part of that decision and are entitled to participate to it.

            Goodin’s all affected interest principle received a fair amount of scholarly discussion[145]. The discussion consists in defining who are the affected people because it was said that the principle could be both overinclusive including people whose interests are not really affected by the decision, and underinclusive, excluding people whose interests are definitely affected by the decision[146]. There is not the space to develop the different arguments so Owen’s view will be taken as the most complete. He argued that “all those whose legitimate interests are actually affected by a choice between any of the range of plausible options open to the collective decision-making body should have their interests taken into account in the decision-making process” where plausible options mean “options compatible with the nexus of purposes, functions and capacities constitutive of a polity’s decision-making in the given circumstances and history of its agency”[147].

            However, it seems that his view is still overinclusive in that it includes in the decision-making group immigrants who are clearly not full members of the society. If all immigrants whose interest is plausibly interlinked with a political decision can have a say in this decision then all immigrants, visitors included, should be granted with political agency in a democratic society[148]. Indeed, any immigrants, temporary or not, are linked to political regulations but the fact that these political decisions have effects on them and that they have to adjust their actions in function of these decisions does not make them full members of the democratic society[149]. For example, any visitor has to obey the speed limit regulation of the host country but it does not mean that she can participate in the decision-making group that decides on the speed limit of the state. Being affected by a few decisions is not sufficient to make one a full member of a democratic society[150] .

            The all affected interests principle take into account too many people who would be objectively affected by some political decisions. Bauböck[151] proposes to reverse the point of view of the “all affected interests” principle and to focus on how subjectively people feel affected by some political decisions and calls this view the “stakeholder citizenship”[152]. He only takes into account that full members of a democratic society can be granted with political agency: only immigrants who claim and recognize themselves as being full members of the society can be granted with citizenship. Some immigrants could be objectively granted with citizenship because of their affiliations with the state – Owen calls them the “pre-political demos”[153]. However, if they do not judge themselves as being part of the society and do not ask for political participation then they cannot be citizens of the state and be part of the demos of their host state. Full membership is a condition to political agency but only conscious and intellectual awareness of one’s full membership can grant citizenship[154].

            In the case of the “all affected interests” principle, full membership is a status given by the state who judge the immigrant as being sufficiently integrated in the society. The “stakeholder” principle reverses this tendency with full membership being a status that the immigrant claims to the state. On the one hand, citizenship is a passive status that is given by the state and on the other hand, citizenship is an active status that the immigrant demands to the state[155].

            Giving the voice to the immigrant to verify her full membership to the state seems ideal as the immigrant is undoubtedly the one to know her interests are intertwined with the rest of the democratic society. There are doubts regarding the practicality of Bauböck’s principle. He assumes that immigrants will recognize themselves as belonging to the democratic society. However, it could be the case that they do not perceive themselves as full members even if they are as it is not obvious that immigrants have a clear view of the public affairs of their host state. The situation faced by denizenship subjects excluded from political participation is a thorn in the side in the forms of liberal democratic government as these political systems lack incentives to promote rights of those who have no “voice”, and not only their political rights. For example, the phrase “denizen” is reactivated by the Swedish  scholar Thomas Hammar, where denotes the legal status reinforced (enhanced) of resident immigrants[156].

            They are many reasons why one would not recognize themselves as being legitimate for citizenship. One was raised by Lippmann in that political decisions are often formulated by administrators in technical terms such that only politicians can understand them and that others do not feel concerned by these political decisions because they can not see themselves and their interests represented[157]. For immigrants to feel included in some political decisions to know what is at stake in these decisions requires the decision process to be made accessible to their knowledge and understanding. This operation cannot come from the immigrants themselves and they need external help to understand their membership and what to expect from it. If immigrants can not identify their interests as being affected by some decisions, they will not claim for political agency. This could result into political apathy with immigrants not asking for political participation[158].

            To sum up[159], the all affected interests principle and the stakeholder principle offer a real alternative to the failure of the state-based principles to include all full members of the society into citizenship because they focus on people’s degree of affiliations with the state instead of thinking of full membership as all or nothing status[160]. However, both fail to propose a fair principle to enable immigrants to access citizenship on a fair basis with the former is overincluse whereas the latter is underincluse. The last challenge is then to look for an in-between principle that includes fairly all immigrants that are actually full members of the democratic society of their host state. For example, “although citizenship is the lingua franca of socialization in civic classes, as well as the cornerstone of many social movements seeking basic rights, and a key phrase in speeches by politicians on ceremonial occasions, oddly enough, citizenship has not been a central idea in social sciences”[161].

  1. Citizenship and the reciprocity principle

The stakeholder principle is complementary to the all affected interest principle. The two views are not contradictory and their unification would solve their respective vulnerability. Indeed, both have at stake people’s intertwined interests, that is, the relationship between the immigrant and the state[162]. However, they define full membership from the perspective of only one side of that relationship. The all affected interests principle focuses one what the state recognizes as intertwined interests whereas the stakeholder principle focuses one what people recognize as intertwined interests. In both cases, the relationship is foreseen by one side without consulting the other part. Ideally, if both parts are fair they should recognize the same intertwined interests and therefore agree on who is a full member but the last section showed that it is not the case as both are easily mistaken by some parameters that they are enable to see and take into account in their analysis. The author suggests that the relationship between the immigrant and the state should be determined on the basis of their mutual agreement[163]. Intertwined interests between the immigrant and the state can be recognized only if they together agree on being involved in a reciprocal relationship on certain affairs. John Dewey’s notion of the public[164] corresponds to such a unified view. To him, a public is a collective formation that is confronted with a social and political problem. In the course of daily life, individuals encounter problematic decisions made by others and that directly affect the course of their actions. All those who are affected by the indirect consequences of social transactions to such an extent that it is deemed necessary to have those consequences systematically cared for. The public exists as soon as individuals concerned by these decisions recognize themselves as being involved in a group decision and start to work together to find the best comprise. In the case of the immigrant’s full membership, the state and its political decisions directly affect the course of the immigrants’ actions. The immigrants recognizing that their interests depend on the state’s political decisions constitute the public and only their political inclusion that is their contribution to the state’s decisions can guarantee that they are treated fairly. The notion of the public matches the intertwined interests relationship between the immigrants and the state. On the one hand, the state’s goal is to make decisions that provide equality among its citizens and, on other the immigrants’ aim is to participate to the decisions that affect them.

            Dewey was aware that the prime difficulty is the discovering the means by which a scattered, mobile, and manifold public may so recognize itself as to define and express its interests. The political condition for the public to be operative is its contribution to political decisions by its awareness of its interests. Intertwined interests and mutual dependence are not sufficient, political participation is necessary for a public to be formed. The problem of the public is then to recognize itself as being part of the state’s decisions. For Dewey, communication is then the precondition to political participation. Awareness cannot come from the public alone and the challenge of democracy is to make it possible for the public to have access to information about its interests. The state ought to provide means of knowledge to the publics. The aim of the state is to make it possible for people to identify what kinds of decisions are being made by political bodies and how those decisions might affect their interests. Official representatives should inform the public on those decisions and organizations and various resources should improve the conditions of debate and discussion to help the public to recognize itself. A necessary communication between the state and the people must exist so that the people understand its legitimacy to participate to political decisions and ask for this political agency. In the case of the immigrants, it means that as soon as they enter in the state, not only does the state have to grant them with the civil liberties that correspond to their visas, it must also enable them to access information about policy decisions related to their interests.

            At this final step of this argument, the author returns to the reciprocity principle and notes that applying Dewey’s notion of the public to a cosmopolitan view of citizenship, where the immigrant claims her citizenship on the basis that the state provides them with the means to recognize herself as a full member of the democratic society, amounts to the same as applying the reciprocity principle to the right of political participation[165]. Indeed, the reciprocity principle states that rights are granted to immigrants on a give and take agreement between the immigrant and the state. To recall that the immigrant commits themselves to work in the state and the state guarantees them in return the rights related to working conditions. The reciprocity principle works as a recognition of the immigrant’s degree of membership in the democratic society. Dewey’s notion of the public rests on that same mutually beneficial agreement between the state and the immigrant; the immigrant commits themselves to participate to the public affairs if the state guarantees to provide them information about their interests and their rights. The state and the immigrant agree that citizenship is a matter of self-involvement that the immigrant can claim on the basis that the state includes the immigrant in the communication of its affairs[166].

  1. Concluding remarks

Migrations have existed for  along time but, only now the case of immigrant’s citizenship has highly weakened traditional ideas of how membership, citizenship, residence and political agency should be connected. A unique way to understand citizenship is based upon the political status attached to the right of political participation[167]. Full membership provides a normative basis for the claim of citizenship and only full members of a democratic society can ask for citizenship[168].

            However, there are two ways to make sense of full membership for immigrants:

  • 1) Full membership as an all-or-nothing status recognized on the basis of residence in the territory or attachments to the territory. A cosmopolitan view of citizenship[169] is needed to allow migrants to access citizenship.
  • 2) Full membership as a cumulative status recognized on the basis of shared interests between the state and the immigrant. A certain threshold of common interests makes the immigrant eligible to citizenship. The latter route seems more promising for correcting the political exclusion of many immigrants from citizenship.

On the basis of this argument, the ‘all affected interests’ principle provides a good account to know objectively which immigrants’ interests are concerned by some political decisions but it fails to determine the immigrant’s full membership. Full membership depends primarily on the immigrant’s recognition of her entitlement to citizenship[170]. The argument leaves open the risk that the immigrant might not perceive their full membership. It has been stressed that this is especially likely unless the state provide immigrants with access to information regarding the political decisions that affect their interests[171]. The appropriate principle for the determination of the immigrants’ full membership is the reciprocity principle drawn on Dewey’s notion of the public[172] which holds that any immigrant whose interests are intertwined with the state’s political decisions and who is able to perceive themselves as being fully part of the democratic society, thanks to the mediation of the state, is entitled to inclusion within the citizens of this state.

            The direct consequence of this argument is that the acquisition of citizenship rests upon the reciprocity principle – same principle as any civil liberties that the immigrant may be granted. There is a continuity between the right of political participation and more common civil liberties[173]. Rights are what the immigrant is granted on the basis of them degree of membership in the state: the higher the degree, the immigrant get more rights. Political participation or citizenship[174] is then the right corresponding to the highest degree of membership. Where there is citizenship, the state is committed to providing the information relevant to the interests of the citizen and the citizen has recognized herself as entitled to political participation[175].

            It was yet to be mentioned that a few years ago,  there was a development in literature which was heavily focused on its social categories on so-called ‘third-generation rights’, to quote Bobbio[176], or those cosmopolitan and ecological principles which aim to regulate relationships with the natural environment[177].

            It has been discussed how citizenship deprivation challenges not only the idea of equality[178] but also the approach to the state as a functional space for the protection of the individual. It has been argued that citizenship is limited by time and space. The time limit arrises because citizenship  is a temporary status, which can be acquired, changed or revoked and citizenship is spacially limited by territory because citizenship’s bundle of rights[179] exists almost exclusively in the home country. Citizenship brings within itself a strong attachment to a certain territory and to a certain temporality. Such strengths of citizenship in time and space decrease when referring to naturalized or dual citizens. The myth of endless citizenship collides with the possibility of citizenship revocation and in the case of citizenship deprivation the attachment to time and space is lost completely[180].

            In order to analyze citizenship deprivation in liberal democracies, this work focused on some aspects of the relationship between state and nationality. It has been argued that in some cases the narrative about national identity embodies the idea of the state in liberal democracies and such narrative about nationality is a key factor in pursuing the possibility of citizenship deprivation[181].

[1]    Aristotle, Pol., I, 1259b.; III, 1283b 44-45; III, 1287a 13-19; III, 1288a 14;  Manville, P.B., The Origins of Citizenship in Ancient Athens, 1990, p. 24, Princeton University Press, Princeton (New Jersey); Susan D. Collins, Aristotle and The Rediscovery of Citizenship, 2006, Cambridge University Press; Bookman, J.T., The Wisdom of the Many: an Analysis of the Arguments of Book III and IV of Aristotle’s Politics, «History of Political Thought», XIII, 1, 1992, pp. 1 ss.;  Pol., III, 1282a 20-25; Barker, E., The Vocabulary of the Politics, cit., p. lxvii-lxviii; Roberts, J., Excellences of the Citizen and of the Individual, in G. Anagnostopoulos (ed.), A Companion to Aristotle, Wiley-Blackwell, Oxford 2009, pp. 555-565. See also Beitz, C.R., and Goodin, R.E., 2009, Basic Rights and beyond, pp. 1-24 in Beitz and Goodin, eds., Global Basic Rights. 1987, Oxford University Press; Collins, S., 2013, Collectives’ duties and collectivization duties. Australasian Journal of Philosophy, 91 (#2): 231-48; Feinberg, J., 1970, Justice and personal desert. Pp. 55-94 in Feinberg, J., Doing and Deserving. Princeton, NJ: Princeton University Press; Goodin, R.E., 1995, The state as a moral agent. Pp. 28-44 in Goodin, Utilitarianism as a Public Philosophy. New York: Cambridge University Press; Goodin, R.E., 2009, Demandingness as a virtue. Journal of Ethics, 13: 1-13; Hart, H.L. A., 1955, Are there any natural rights? Philosophical Review 64: 175-91; Herman, B., 2013, Being helped and being grateful: imperfect duties, the ethics of possession and the unity of morality. Journal of Philosophy, 109 (5/6): 391-411; Rainbolt, G., 2000, Perfect and imperfect obligations. Philosophical Studies, 98 (3: Ap): 233-56; Scheffler, S., 2000, Justice and desert in liberal theory. California Law Review, 88: 965-90; Schroeder, S.A., 2014, Imperfect duties, group obligations and beneficence. Journal of Moral Philosophy, 11 (5): 557-84.

[2]    Manville, P.B., The Origins of Citizenship in Ancient Athens, 1990, p. 24, Princeton University Press.

[3]    Mindus, P., Cittadini e no. Forme e funzioni dell’inclusione e dell’esclusione, 2014, Firenze University Press.

[4]    See Gibney, M.J. 2013, ‘A Very Transcendental Power’: Denaturalisation and the Liberalisation of Citizenship in the United Kingdom. Political Studies, 61: 637–655; Matthew, J.G.,“Should Citizenship Be Conditional? The Ethics of Denationalization,” The Journal of Politics 75, no. 3 (July 2013); Barry, C. and Ferracioli, L. 2015, Can Withdrawing Citizenship Be Justified? Political Studies, cit.

[5]    Powell, M., The Hidden History of Social Citizenship, «Citizenship Studies», VI, 3, 2002, p. 235.

[6]    Ellermann, A., States against Migrants. Deportation in Germany and the United States, 2009, Cambridge Univ. Press,  p. 19; Vogel, D.,  Migration Control in Germany and the United States, «International Migration Review», 34, 2, 2000, pp. 390-422; Hagan, J.,  Eschenbach, K., Rodriguez, N., U.S. Deportation Policy, Family Separation, and Circular Migration, «International Migration Review», 42, 1, 2008, pp. 64-88.

[7]    Hammar, T.,  Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration, 1990, Aldershot, Avebury.

[8]    Becker, L., Reciprocity (London: Routledge & Kegan Paul, 1986); Komter, A., ‘Gifts and Social Relations: The Mechanisms of Reciprocity,’ International Sociology 22(1) (2007): 93-107; De Waal, F., The Age of Empathy: Nature’s Lessons for a Kinder Society (New York: Three Rivers Press, 2009); Malinowski, B., Argonauts of the Western Pacific (London: Routledge and Kegan Paul, 1922); Mauss, M., The Gift: The Form and Reason for Exchange in Archaic Societies (London: Routledge, 1991 [1923]); Simmel, G., ‘Faithfulness and gratitude,’ in The sociology of Georg Simmel, ed. K. Wolff (New York: The Free Press, 1950 [1908]), 379-96; Komter, A.,‘The Evolution of Human Generosity,’ International Sociology 25(3) (2010): 443-64; Mead, G., Mind, Self, and Society (Chicago: University of Chicago Press, 1962 [1934]); Arendt, A., The Life of the Mind (New York: Harcourt, Brace and World, 1978); Habermas, J., ‘Justice and Solidarity: On the Discussion Concerning Stage 6,’ in The Moral Domain, ed. T.E. Wren (Cambridge, MA: MIT Press, 1990), 224-51; Honneth, A., The Struggle for Recognition: The Moral Grammar of Social Conflicts (Cambridge: Cambridge University Press, 1992); Komter, A., ‘Reciprocity as a Principle of Exclusion: Gift Giving in the Netherlands,’ Sociology 30(2) (1996): 299-316; De Waal, F., Good Natured: The Origins of Right and Wrong in Humans and Other Animals (Cambridge, MA: Harvard University Press, 1996).

[9]    Benton, M., The Tyranny of the Enfranchised Majority? The Accountability of States to Their Non-Citizen Population, «Res Publica», 16, 4, 2010, pp. 397-413. See also the recent debate Bellamy, R., Political Constitutionalism, Cambridge University Press, Cambridge, 2007; Tomkins, A., Republican Constitution, Hart, Oxford, 2005; Griffith, J., The Political Constitution, “Modern Law Review”, 42, 1979, pp. 1-21, and finally the special issue on political constitutions by  Goldoni, M.,- McCorkindale, C., in “German Law Journal,” 12, 2013.

[10]   “Tarello Institute for Legal Philosophy”» is one of the world’s leading centres for legal research and education. The works are focused on topics in analytical legal theory and philosophy of positive law, constitutional democracy, human rights, bioethics, sociology of law and history of European legal culture. The founding father was Giovanni Tarello,  Italy’s foremost philosopher and historian of law.

     As for the present theme cf. Barberis, M., Metaetica del costituzionalismo, in Diritto e questioni pubbliche, No. 11. (2011) 135-156; Barberis, M., (2000a). Filosofia del diritto. Un’introduzione storica, 2000, il Mulino, Bologna; Barberis, M., (2000b). Neocostituzionalismo, democrazia e imperialismo della morale, in Ragion Pratica, Vol. 14. (2000), 147-162; Comanducci, P., Il positivismo giuridico: un tentativo di bilancio, in Sudi in onore di Franca De Marini, 1999, Milano, Giuffrè, 125-134.; Comanducci, P., Neo-constitutionalism: an attempt at classification, in Associations (in print). See also Pozzolo, S., (1998). Neoconstitucionalismo y especificidad de la interpretación constitucional, in Doxa, Vol. 2. No. 21. 355-370; Pozzolo, S., Neocostituzionalismo e positivismo giuridico, 2001, Torino, Giappichelli.

[11]   Cf., e.g., Ferrajoli, L., Per una sfera pubblica del mondo, in Teoria politica, Vol. 17. No. 3. (2001) 3-21. See also a paper presented by GUASTINI, R., A Realistic View on Law and Legal Cognition.  University of Genoa, Italy, Tarello Institute for Legal Philosophy, in occasion of “First Genoa-Slavic Seminar in Legal Theory”, 11-12 December, 2014.

[12]   Though on the base of not always coincident arguments, a worried warning on the most recent apparent crisis of the protection of fundamental rights as a leading principle of domestic and international law has been raised, e.g., by Allegretti, U., Diritti e stato nella mondializzazione, 2002, Troina (En), Città aperta, 127-197; Bonanate, L., La politica interna del mondo, in Teoria politica, Vol. 17. No. 1. (2001), 3-25; Ferrajoli, L., I fondamenti dei diritti fondamentali, in Teoria Politica, Vol. 16. No. 3. (2000) 41-113; Mazzarese, T., Is the age of rights to a turn? Paper presented at “Fundamental Aspects of Human Rights. A Symposium”, Helsinki, 22-23 February 2002.

[13]   Mazzarese, T., Towards a Positivist reading of Neo-constitutionalism, in Jura Gentium-Rivista di Filosofia del diritto internazionale e della politica globale, 18, (2008) 345-364.

[14]   Great emphasis on constitutional fundamental rights as material criteria of identification is devoted, e.g., by Ferrajoli, L., (2002): Lo stato di diritto fra passato e futuro, in Costa, P., – Zolo, D., (ed.): Lo stato di diritto. Storia, teoria, critica, 2002, Feltrinelli, Milano, 349-386. See also Palombella, G., L’autorità dei diritti, 2002, Laterza, Roma-Bari, 7 and 23-29. Focusing more on the problem of the identification (and interpretation) of the constitutional rules than on the problem of the identification (and interpretation) of the statutory rules coping with the material criteria of validity, the topic is dealt with at length by the contributions to Alexander, L., (ed.): Constitutionalism. Philosophical Foundations, 1998, Cambridge, Cambridge University Press.

[15]   With regard to domestic law, insofar as the Italian legal system is concerned, a critical overview of shortcomings and deficiencies concerning the judicial protection of fundamental rights is provided by Taruffo, M., Diritti fondamentali, tutela giurisdizionale e alternative, in Mazzarese, T., (ed.): Neocostituzionalismo e tutela (sovra)nazione dei diritti fondamentali, 2002, Giappichelli, Torino. With regard to international law, a rich exemplification of the limits met in securing legal implementation and judicial protection of fundamental rights is offered by Cassese, A., I diritti umani nel mondo contemporaneo, 1994, Laterza, Roma-Bari.

[16]    This can be taken to be the case, though his main concern is not the definition of the notion of constitutionalism, with Guastini, R., (1998): La “costituzionalizzazione” dell’ordinamento italiano, in Ragion Pratica, Vol. 6. No. 11. (1998), 185-206.

[17]   That is the way it is, with Ferrajoli, L., (2012): La pragmatica della teoria del diritto, in Comanducci, P., – Guastini, R., (ed.): Analisi e diritto 2014, 2014, Giappichelli, Torino. Further, though not always as manifestly vindicated and purported as in Ferrajoli’s works, that is also the case, e.g., with ZAGREBELSKY, G., Il diritto mite. Legge diritti giustizia, 1992, Einaudi, Torino;  ATIENZA, M., Legal Reasoning and Constitutional State, in Associations (in print).

[18]   A similar understanding of the notion occurs in Ferrajoli, L., I fondamenti dei diritti fondamentali, in Teoria Politica, Vol. 16. No. 3. (2000), 41-113, when maintaining that the new paradigm of constitutionalism “represents a completion not only of the rule of law but also of the very legal positivism since the change it has led to, has provided legitimacy with a twofold artificial and positive character: not only of the law as it is, i.e. of its conditions of existence, but also of the law as it ought to be, i.e. of its conditions of validity made constitutionally positive them too, as law on the law, in the forms of legal limits and constraints on its production”. Further, cf. also Raz, J.: Legal Rights, in Oxford Journal of Legal Studies, Vol. 4. No. 1. (1984), 1-21, when stating: “Legal rights are legal reasons for developing the law by creating further rights and duties where doing so is desirable in order to protect the interests on which the justifying rights are based”.

[19]   Such a deficiency has been denounced from a variety of perspectives. From a theoretical perspective, it constitutes the main concern of those who concentrate on the difficulties of the identification and/or judicial implementation of fundamental rights because of the interpretative difficulties their formulations can give rise to: that is the case, e.g., with Bobbio, N., (1968): Presente e avvenire dei diritti dell’uomo, in La comunità internazionale, Vol. 23. 3-18. English translation by Cameron, A.: Human Rights Now and in the Future, in Bobbio, N., The Age of Rights, 1996, Polity Press, Cambridge, 12-31; Mazzarese, T., (1993): Judicial Implementation of Fundamental Rights: Three Sorts of Problem, in Karlsson, M. M. – Jonsson, O. P. – Erynjarsdottir, E. M. (ed.): Recht, Gerechtigkeit und der Staat, 1993, Duncker und Humblot, Berlin, 203-214; Koskenniemi, M., The Effect of Rights on Political Culture, in Alston, Philip (ed.): The EU and Human Rights, 1999, Oxford University Press, Oxford, 99-116.

     From a (meta)ethical perspective, it constitutes the main concern of those who doubt any alleged universality of fundamental rights because of the differing values of different cultures and/or ideologies and/or religions: that is the case, despite any distinguishing feature of different trends, with the advocates of multiculturalism and/or of (political) realism and/or of the gender theory. From a political perspective, it constitutes the main concern of those who maintain that their legal positivization deprives fundamental rights of their political innovative potentiality: that is mainly the case, e.g., with the adherents of the so called critical legal studies movement. Cf., e.g., McIlawain, C.H., Constitutionalism: Ancient and Modern, 1947, Cornell University Press, New York; Sartori, G., Constitutionalism: a Preliminary Discussion, in American Political Science Review, Vol. 56. No. 4. (1962), 853-864; Floridia, G., La costituzione dei moderni. Profili tecnici di storia costituzionale. I Dal Medioevo inglese al 1791, 1991, Giappichelli, Torino; Dogliani, M., Introduzione al diritto costituzionale, 1994, il Mulino, Bologna; and Moreso, J.,: In Defense of Inclusive Legal Positivism, in Chiassoni, P., (ed.): The Legal Ought (proceedings of the IVR mid-term Congress in Genoa, June 19-20, 2000), 2001, Giappichelli, Torino, 37-63.

[20]   von Bogdandy, A., A Disputed Ieda Becomes Law: Remarks on European Democracy as a Legal Principle, in B. Koch, B. Rittberger (ed.): Debating the Democratic Legitimacy of the European Union, Lanham, Rowan & Littlefield Publishers, 2007, 34.

[21]   Dommering, E., European Convention on Human Rights and Fundamental Freedoms, in O. Castendyk, E. Dommering,  A. Scheuer (ed.): European Media Law, Alphen aan den Rijn, Wolters Kluwer, 2008, 12. (Under International Law, the term “hard law” refers to legal instruments with legally binding force, while the opposite term “soft law” is used to refer “quasi-legal instruments” which have no legally binding force or whose binding force is weaker than the binding force of traditional law).

[22]   von Bogdandy, A., Founding Principles, in Armin von Bogdandy, Jürgen Bast (ed.): Principles of European Constitutional Law., Oxford, Hart Publishing, 2009. [Hereinafter: Von Bogadandy, (2009a)], p. 22.

[23]   According to Article 2 of the Treaty of the European Union as amended by the Lisbon Treaty, «the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.»

[24]   Abbott K.W. and Snidal D., Hard and Soft Law in International Governance, in International Organization, Vol. 54 (3), Summer 2000, pp. 421-456; Baxter R., International Law in “Her Infinite variety”, in International and Comparative Law Quarterly, Vol. 29 (4), 1980, pp. 549-566. See also Shelton D., Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, Oxford Scholarship Online, January 2010.

[25]   von Bogdandy, A.; Kottmann, M., Antpöhler, C.; Dickschen, J.; Hentrei, S.; Smrkolj, M.; Ein Rettungsschirm für europäische Grundrechte – Grundlagen einer unionsrechtlichen Solange-Doktrin gegenüber Mitgliedstaaten, in Zaör V, 72, 2012, p. 46.

[26]          Gil-Bazo, M.-T.,  “Refugee status and subsidiary protection under EC law: the qualification directive and the right to be granted asylum”, in A. Baldaccini, E. Guild, and H. Toner (eds.), Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy, Oxford, Hart, 2007, 236–9.

[27]          Peers, S.,; Ward, A., eds. The EU Charter and of Fundamental Rights: politics, law and polity. Oxford: Hart Publishing, 2004. See also Anastasios, A., Increasing Rights’ Protection in the EU: The Charter of Fundamental Rights in Trajectory of Enforcement, in Hellenic Review of European Law (4) 2009, 97.

[28]          Lord Goldsmith, QC, “A charter of rights, freedoms and principles”, Common Market Law Review, Vol. 38, 2001, 1204; P. Eeckhout, “The EU charter of fundamental rights and the federal question”, Common Market Law Review, Vol. 39, 2002, 947.

[29]   Marks, G.; Nielsen, F.; Ray, L.; Salk, J.; Competencies, Cracks and Conflicts: Regional Mobilization in the European Union, in G. Mrks, W. Scharpf, C. Schmitter (ed.), Governance in the  European Union, London, Sage, 1996, pages 41-42.

[30]   von Bogdandy, A., Grundprinzipien, in von Bogdandy, A., Bast, J., (ed.), Europäisches Verfassungsrecht, Heidelberg, Springer, 2009. [Hereinafter: Von Bogdandy, (2009b)], p. 30.

[31]   Kostakopoulou, T., The Future Governance of EU Citizenship, presented in European Citizenship: Twenty Years On,  (Uppsala 2013); http://media.medfarm.uu.se/play/kanal/121.

[32]          Bogdandy refers to the conceptual status prior to the Lisbon Treaty when he writes that the concept of fundamental principle does not include all norms or norm elements that are defined by the Treaties of the European Court of Justice as principles; only a number of provisions belong here that are usually called fundamental or structural principles by the national constitutions, too. Cfr. Von Bogdandy-Bast, op. cit., p. 21.

[33]          von Bogdandy, A., (2009b),  op. cit., p. 25; p. 28.

[34]          von Bogdandy, A., op. cit., p. 22.

[35]          In the proceedings, according to Article 7 of the protocol on subsidiarity and the application of the principle of proportionality, the objections of national parliaments submitted in relation to the enforcement of the principle of subsidiarity do not automatically lead to the revocation of the legislative proposals; the decision on this remains with the legislator of the Union. Article 8 of the protocol, however, makes it possible for national parliaments, too. To initiate the annulment procedure indirectly, via the member state.

[36]   Ladenburger, C., FIDE 12 – Session on “Protection of Fundamental Rights post-Lisbon – The interaction between the Charter of Fundamental Rights, the European Convention of Human Rights and National Constitutions” (Institutional Report, Brussels, 2011), at: http://www.fide2012.eu/index.php?doc_id=88,%20at%2048%20ff; p. 13.

[37]   Davis, G., Any Place I Lay My Hat? or: Residence is the New Nationality, in “European Law Journal,” 11,
1, 2005, pp. 43-56.

[38]   von Bogdandy, A., et al, (2012), op. cit., p. 67; for example, the following report formulates concrete requirements in respect of media freedom and pluralism: Report of High Level Group on Media Freedom and Pluralism: A free and pluralistic media to sustain European democracy (January 2013), p. 4.

[39]   Alexy, R., Begriff und geltung des rechts (The Concept and Validity of the Law), 2005, Karl Alber, Freiburg und München; and Alexy, R., On the Concept and the Nature of Law, in Ratio Juris, Vol. 21. Issue. 3. (2008), 281, 299. See Bulygin, E., Alexy’s Thesis of the Necessary Connection between Law and Morality, in Ratio Juris, Vol. 13. Issue 2. (2000), 133, 137; and Alexy, R., On the Thesis of a Necessary Connection between Law and Morality: Bulygin’s Critique, in Ratio Juris, Vol. 13. Issue 2. (2000), 138, 147; Gardner, J., How Law Claims, What Law Claims, in Klatt, M., (ed.): Institutionalized Reason. The Jurisprudence of Robert Alexy, 2012, Oxford University Press, Oxford, 29-44.

[40]   Cfr. von Bogdandy, A., (2009a), op. cit., 22.

[41]   Payandeh, M., The Concept of International Law in the Jurisprudence of H.L.A. Hart, in “European Journal of International Law”, 21/4, 2010, pp. 967-995; Barber, N., Legal Pluralism and the European Union, in “European Law Journal”, 12/3, 2006, pp. 306–329.

[42]   Unger, S., Das Verfassungsprinzip der Demokratie, Tübingen, Mohr Siebeck, 2008; 133.

[43]   Alexy, R., Constitutional Rights, Balancing, and Rationality, in Ratio Juris, 16, 2003, 2; 136.

[44]   See two-element norm structure, Jakab, A., A norma szerkezetének vizsgálata. (“The Examination of the Structure of the Norm”), in Jogelméleti Szemle, 2001/4, http://jesz.ajk.elte.hu/jakab8.html.

[45]   Dworkin, R., Talking Rights Seriously, Cambridge, Harvard University Press, 1997.

[46]   Jakab, A., Concept and Function of Principles. A Critique of Robert Alexy, http:77papers.ssrn.com/sol3/papers.cfm?abstract_id=1918421 (28 August 2009), 5.

[47]          Jakab, A.; Kochenov, D., eds., The Enforcement of EU Law and Values, OUP, 2017; FRA, Opinion on the development of an integrated tool of objective fundamental rights indicators able to measure compliance with the shared values listed in the Article 2 TEU based on existing sources of information, April 2016.

[48]         See e.g. Schindler-case: Point 61 of the judgement of 24th March 1994 in case no. C-275/92. Her Majesty’s Customs and Excise vs. Gerhart Schindler and Jörg Schindler that mentions a «sufficient degree of latitude» (ECR 1994, p. I1039).

[49]          In their judgement the German Federal Costitutional Court expound that, according to the costitutional principle of the rule of law and legitimate expectations, the legislator must exercise “consideration”: he must act proportionality when adopting the framework decision on the European Arrest Warrant. That means that the legislator must make maximum use of the margin allowed by the framework decision, with due respect to the principles set fort in the national constitution.  «The legislator, at any rate, was bound to make use of the margin allowed by the framework resolution for the member state in a manner considerate of the fundamental rights.» BverfG, 2 BvR 2236/04. Point 80. See also Pernice, I., Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited? In Common Market Law Review, 36, 1999, 726.

[50]          The most up-to-date book (published last April), is undoubtedly: Jakab, A.; Dyevre, A.; Itzcovich, G. eds., Comparative Constitutional Reasoning, Cambridge University Press, 2017. This analysis is supported by the examination of eighteen legal systems around the world including the European Court of Human Rights and the European Court of Justice. Universally common aspects of constitutional reasoning are identified in this very recent book, and contributors also examine whether common law countries differ to civil law countries in this respect. This timely and impressive edited collection fills this gap by presenting qualitative and quantitative data from 18 courts and over 700 cases.

[51]   von Bogdandy, A., et al., (2012), 20. Petra L.,, Nyelvpolitika és nyelvi sokszìnűség az Európai Unióban. (Language policy and linguistic diversity in the European Union). Doctoral thesis, 2012, 211-216, Láncos, G., and Orsolya, S., speak with Armin von Bogdandy, Fundamentum, 2011/2, 43.

[52]   Alexy, R., (2005) 133.

[53]   Ladenburger,  C., (2011) 33.

[54]   COM (2003), 606 final, 6. See Judgement of the Court No. c-34/09 of 8 March 2011 (ECR 2011, p. I-1177).

[55]   Cohen, F.S., Transcendental Nonsense and the Functional Approach, “Columbia Law Review”, 35, 1935, pp. 809-49, and Kelsen, H., Reine Rechtslehre, Vienna, Deuticke, 1934, p. 2. Moreover, Ross, A., Tû-Tû, «Harvard Law Review», 70, 1956/57, pp. 820-1; Lindahl, L., Deduction and Justification in the Law. The Role of Legal Terms and Concepts, «Ratio Juris», 17, 2004, pp. 182-202.

[56]   Habermas, J., Citizenship and National Identity, in  Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 491–516 (1999).

[57]   Lindahl, L., Deduction and Justification in the Law, cit., p. 199.

[58]   Habermas, J., The Crisis of the European Union in the Light of a Constitutionalization of International Law, 23 EURO. J. OF INT’L L. 335, 335-348 (2012). Habermas, J., Bringing the Integration of Citizens into Line with the Integration of States, 18 EURO. L. J. 485, 487 (2012). Joerges, C., Reflections on Habermas’ Postnational Constellation, Vol. 2 XI–XXI (Camil Ungureanu, Klaus Guenther & Christian Joerges eds., 2011).

[59]          See e.g.: Rettet die Würde der Demokratie, Frankfurter allgemeine zeitung, Nov. 4, 2011. A number of these statements are reprinted in Jürgen Habermas, zur verfassung Europas: ein essay 97-129 (2011); a more recent example can be found in his essay in Le Monde of Oct. 27, 2011 (English version available at http://www.presseurop.eu/en/content/article/1106741-juergen-habermas-democracy-stake). Habermas’ entire work is comprehensively documented and updated weekly in the Habermas Forum: http://www.habermasforum.dk, the most recent being, Jürgen Habermas, Merkel’s European Failure: Germany Dozes on a Volcano, in Der Spiegel, 5 (July 2013). A great number of his pertinent essays haverecently been reprinted in the Journal Blätter für deutsche und internationale Politik 3/2014, 85-416 under the title Drer Aufklärer Jürgen Habermas at the occasion of his 85th birthday on June 18, 2014. They can be downloaded freely at http://habermas-rawls.blogspot.dk/2014/06/e-book-der-aufklarer-jurgen-habermas.html.

[60]          See also J. Habermas, A Pact for or against Europe? in What does Germany think about Europe? 83–89 (Ulrike Guérot & Jacqueline Hénard eds., 2011).

[61]   See von Bogdandy, A., Basic Principles, in Principles of European Constitutional Law 13, 44 (Armin von Bogdandy & Jürgen Bast eds., 2010); Scicluna, N., EU constitutionalism in flux? Is the Eurozone crisis precipitating centralisation or diffusion?, 18 EURO. L. J. 489, 500 (2012).

[62]   See Scicluna, N., EU Constitutionalism in the Twenty-first Century: Politics and Law in Crisis 101 (2013) (unpublished Ph.D Thesis, La Trobe University); McCormick, J., Carl Schmitt’s Europe: Cultural, Imperial and Spatial, Proposals for European Integration, 1923-1955, in Darker Legacies of L. in Euro. 133, 141 (Christian Joerges & Navraj S. Ghaleigh eds., 2003).

[63]   Habermas, J., Staatsbürgerschaft und national Identität. Überlegungen zur europäischen Zukunft, Erker Verlag, St. Gallen (Switzerland) 1991; Faktisität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Suhrkamp, Frankfurt a.M. 1992, p. 104; Id., The European Nation State. Its Achievements and Its Limitations. On the Past and Future of Sovereignty and Citizenship, “Ratio Juris”, 9, 2, 1996, pp. 125-137; Id., Citizenship and National Identity, “Globalization”, 3, 2003, pp. 155 ss.

[64]          Habermas, J., The Crisis of the European Union in the Light of a Constitutionalization of International Law, 23 EURO. J. OF INT’L L. 335, 335-348 (2012). One can no longer be sure about the seriousness of this distinction. In the preface to his most recent book, Jürgen Habermas, im sog der technokratie. Kleine politische schriften, XII 8 n. 2 (2013), Habermas expresses some discontent with the fact that his public interventions did not make it into the general academic discourses. See also Habermas, J., Bringing the Integration of Citizens into Line with the Integration of States, 18 EURO. L. J. 485, 487 (2012).

[65]          For a reconstruction of Habermas’ works, which, however, seeks to (re-) interpret the author for his own ends, see Joerges, Ch., Reflections on Habermas’ Postnational Constellation, in JÜRGEN HABERMAS, VOL. 2 XI–XXI (Camil Ungureanu, Klaus Guenther & Christian Joerges eds., 2011).

[66]   Heater, D., World Citizenship and Government: Cosmopolitan Ideas in the History of Western Political Thought, St. Martin’s, New York 1996.

[67]   Cf. Manin, B., The Principles of Representative Government, 1997, Cambridge, University Press Cambridge; Manin, B., On Legitimacy and Political Deliberation, in Political Theory, Vol. 15. No. 3. (1987), 338-368; Manin, B.,– Prezeworski, A.,– Stokes, S., Elections and representation, in Manin, B.,– Prezeworski, A.,– Stokes, S., (ed.): Democracy, Accountability, and Representation, 1999, Cambridge University Press, Cambridge; Preuss, U.K., Citizenship and the German Nation, «Citizenship studies», 7, 1, 2003, pp. 37-55; Krajewski, M., Rittstieg, H., German Nationality Law, in Nascimbene, B., (ed.), Nationality Laws in the European Union, Butterworths, London 1996, pp. 357-387.

[68]   Schauer, F., Playing by the Rules, 2002, Clarendon Press, Oxford, 171-184; Balancing, Subsumption, and the Constraining Role of Legal Text, in Law & Ethics of Human Rights, Vol. 4. Issue 1. (2010), 34-45; Thinking Like a Lawyer: A New Introduction to Legal Reasoning, 2013, Harvard University Press, Harvard; The Force of Law, 2015, Harvard, Harvard University Press. As for citizenship and American Constitution, see also L.H. Tribe, American Constitutional Law, The Foundation Press, Mineola (NY) 1988, p. 358.

[69]   Peczenik, A., “Legal Research and Growth of Science”, en Curiel, J. L., Memorias del X congreso mundial ordinario de filosofía del derecho y filosofía social, UNAM, México, vol. V, 1981, pp. 17–28; Nino, C.S., Algunos modelos metodológicos de ‘ciencia’ jurídica, Fontamara, México, 2003, cap. I; Kelsen, H., Teoria Pura del Derecho, UNAM, México, 1982, parágrafos 1-4; 14–18 and 21–22; Ross, A., Sobre el derecho y la justicia, Eudeba, Buenos Aires, 1997, pp. 1–72;  Atienza, M., Ruiz Manero, J., “Dejemos atrás el positivismo jurídico”, in Isonomía, 27/2007, pp. 7–28; Dworkin, R., “In Praise of Theory”, en Arizona State Law Journal, vol. 29, 1997, pp. 353–376; Leiter, B., “In Praise of Realism (and Against Non-Sense Jurisprudence)”, in University of Texas Law, Public Law Research Paper, No. 138, 2010, pp. 1–37; Cohen, F., El método funcional en el derecho, Abeledo Perrot, Buenos Aires, 1962, pp. 11–125.

[70]   Searle, J., Making the Social World: The Structure of Human Civilization, 2010, Oxford University Press, Oxford. See also Searle, J., Mind, Language, and Society: Doing Philosophy in the Real World, 1999, Basic Books, New York. Cf. also TWINING, W., General Jurisprudence: Understanding Law from a Global Perspective, 2009, Cambridge University Press.

[71]   Carens 2014; Bauböck 2005, 2011.

[72]          Prakash, B.S., (2006-05-31). “Only an exit visa”. Retrieved 2008-05-10. See also “Visa Information”. Timatic. IATA. Retrieved 30 April 2017.

[73]    Kostakopoulou, D., Reciprocity and Normativity in Legal Orders, in Netherlands Journal of Legal Philosophy 2014 (43) 2, p. 113.

[74]   Shachar, A., The Birthright Lottery: Citizenship and Global Inequality, Harvard Univ. Press, Cambridge (Mass.) 2009. (The idea was at the center of the continuing debate about the sale and purchase of citizenship, a growing phenomenon, back in vogue in Europe as a result of the Maltese proposal of 12
in November 2013 to introduce a ‘golden passport program‘ that allowed the purchase of the state of Malta citizenship for € 650,000. The debate over birthright lottery is grafted, as noted, the debate began in the years seventy on the topic of moral luck by Bernard Williams and Thomas Nagel). See also Shachar, A., Citizenship as Inherited Property, «Political Theory», 35, 3, 2007, pp. 253-287. A. Shachar, A., Bauböck, R., (eds.), Should Citizenship Be for Sale?, EUI Working Paper RSCAS 2014/01; Williams, B., Moral Luck, Cambridge University Press, Cambridge 1981; Nagel, T., Mortal Questions, Cambridge University Press, New York 1979.

[75]   The idea that a reciprocal relationship is at the foundation of our normative order is central to the modern social contract tradition, from Thomas Hobbes in the seventeenth century to the present. According to that tradition, at least as it is commonly understood, our obligation of obedience to the prescriptions of our rulers stems from the consent of the governed expressed in either an actual or a hypothetical contract. Hume subjected the claim that an actual contract binds future generations to withering criticism. And the alternative claim that there is a hypothetical contract, one to which reasonable individuals would consent, and to which one can thus infer that actual individuals do consent, has been similarly scorned.

[76]   Here focus switchs to Hobbes’s account of reciprocity as the foundational principle of normative, political and legal order – an order that legitimately claims to be a source of obligations for legal subjects or the individuals subject to its rule. – In particular, I want to sketch the theme in political and legal thought of the law as, in Hobbes’s words, ‘the publique Conscience, by which the individual hath already undertaken to be guided.’: Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1997).

     See Joseph Raz, ‘Authority, Law, and Morality,’ in Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Oxford University Press, 1994), 194). Hart worried that Raz’s argument resurrected the Hobbesian theme that there is a prior moral obligation to law. (H.L.A. Hart, Essays on Bentham: Jurisprudence and Political Theory (Oxford: Oxford University Press, 1982), 153-61). See also Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1969, revised edition); Ronald Dworkin, Law’s Empire (London: Fontana, 1986), 108-13.

[77]   Nevertheless, the idea survives and was given new life by John Rawls in the twentieth century in his essay ‘Justice as Reciprocity,’: John Rawls, ‘Justice as Reciprocity,’ in John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999) 190-208,  and more elaborately in A Theory of Justice: John Rawls, A Theory of Justice (Cambridge, MA : Harvard University Press, 1971).

[78]   See (in alphabetic order): Arts, W., Halman, L. (2004) (eds.) European Values at the Turn of the Millenium, Brill Academic, Leiden; Barbalet, J.M. (1988) Citizenship, Rights, Struggle and Class Inequality, Open University Press, Milton Keynes; Bauböck, R. (1997) ‘Citizenship and National Identities in the European Union’, in Integration durch Demokratie. Neue Impulse für europäische Union, eds. E. Antalosvsky, J. Melchior, S. Puntscher-Riemann, Metropolis, Marburg, pp. 302-20; Bauböck, R., Ersbøll, Groenendijk, K., Wadrauch, H. (eds.) (2006) Acquisition and Loss of Nationality, Policies and Trends in 15 European States, Vol. I Comparative Analyses, Vol. II Coutry Analyses, Amsterdam University Press, Amsterdam; Bauböck, R. (2006) ‘Who are the citizens of Europe?’, in Id., R., Ersbøll, Groenendijk, K., Wadrauch, H. (eds.) Acquisition and Loss of Nationality, Amsterdam University Press, Amsterdam; Bellamy, R., Castiglione D. (eds.) (2004) Lineages of European Citizenship: Rights, Belonging and Participation in Eleven Nation-States, Palgrave Macmillan, London; Bellamy, R., Castiglione D., Shaw, J. (eds.) (2006) Making European Citizens. Civic Inclusion in a Transnational Context,  Plagrave Macmillan, London; Bodin, J. (1583) Six Books of the Commonwealth, Scientia, Aalen, 1977; Borgatta, E. & M. (1992) ‘Citizenship’ in Encyclopedia of Sociology, Macmillan, New York; Boudon, R & Bourricaud, F. (1982) ‘Citoyenneté’ in Dictionnaire critique de la sociologie, PUF, Paris; Brubaker, R. (1992) Citizenship and Nationhood in France and Germany, Harvard University Press, Cambridge (Mass.); Bulmer, M & Ress, A.M. (eds.) Citizenship Today. The Contemporary Relevance of T.H. Marhall, UCL Press, London; Carrera, S. (2005) ‘What Does Free Movement Mean in Theory and Practice in an Enlarged EU’?, in European Law Journal, vol. 11, n. 6, pp. 699-721; Carrera, S. (2006) ‘Legal Migration Law and Policy Trends in A Selection of EU Member States. Briefing Paper’, Directorate-General Internal Policies. Policy Department C – Citizens’ Rights and Constitutional Affairs, European Parliament, July 2006 (copies available at japap@europarl.europa.eu); Colas, D. & Emeri, C. (eds.) (1991) Citoyenneté et nationalité, PUF, Paris; Cordini, G. (1998) Elementi per una teoria della cittadinanza, Cedam, Padova; Dahrendorf, R. (1988) The Modern Social Confict. An Essay on the Politics of Liberty, Weidenfeld and Nicolson, New York; Davis, G. (2005) ‘Any Place I Lay My Hat? Or: Residence is the New Nationality’,  european Law Journal, vol. 11, n. 1, 43-56; Delanty, G., Rumford, C., (2005), Rethinking Europe: Social Theory and the Implications of Europeanisation, Routledge, London; Dollat. P. (1998) La libre circulation des personnes et citoyenneté européenne: enjeux et perspectives, Bruylant, Bruxelles; Düring, I. (1996) Aristoteles. Darstellung und Interpretation seines Denkens, Winter, Heidelberg; Garot, M.J. (1999) La citoyenneté de l’Union européenne, L’Harmattan, Paris; Gerhards, J. (2008) ‘Free to Move? The Acceptance of Free Movement of Labour and Non-discrimination in Europe’, in European Societies, vol. 10, n. 1, pp. 121-140; Giubboni, S. (2007) ‘Free Movement of Persons and European Solidarity’, in European Law Journal, vol. 13, n. 3, pp. 360-379; Groenendijk, K. & Guild, E. (eds.), (2000) Le status juridique des ressortissants de pays tiers résidents de longue durée dans un Etat membre de l’Union européenne, University of Nimega (April); Groot, de G.R. (2004) ‘Towards a European Nationality Law’, in electronic Journal of Comparative Law [online] (Available at: http://www.ejcl.org/83/art83-4.html); Id., (2006) ‘Nationality ‘ in Encyclopedia of Comparative Law, ed. J.M. Smits, Edward Elgar, Cheltenham, pp. 476-492; Giuguet. B. (1999) ‘Citizenship and the Principle of Affectedness’, in R. Bellamy, D. Castiglione, J. Shaw (eds.) Making Citizens. Civic Inclusion in a Transational Context, Macmillan, Palgrave, pp. 56-74; Ifversen, J. (2002) ‘Europe and European Culture – A Conceptual Analysis’, in European Societies, (4) pp. 1-26;  Isin, E.F. & Turner, B.S. (eds.) (2002) Handbook of Citizenship Studies, Sage, London; Janoski, T. (1998) Citizenship and Civil society: A Framework of Rights and Obligations in Liberal, Traditional and Social Democratic Regimes, Cambridge University Press, Cambridge; Jenkins, R. (2008) ‘The Ambiguity of Europe. “Identity Crisis” or “situation normal”?’, in European Societies, vol. 10, n. 2, pp. 153-176; Johnson, C. (1984) ‘Who Is Aristotle’s Citizen?’, Phrónesis: a Journal for Ancient Philosophy, vol. 29, pp. 73-90; Karlson, I. (2007), Europa och turken, Wahlström & Widstand, Stockholm, 2007; Kelsen, H. (1929) ‘La naissance del’Etat et la formation de sa nationalité. Les principles, leur application au cas de la Tchécoslovaquie’, in Revue de droit international, II; Kelsen, H. (1945) General Theory of Law and State, Harvard University Press, Cambridge (Mass.); Krajewski, M. & Rittstieg, H. (1986) ‘German Nationality Law’, in Nationality Laws in the European Union, ed. B. Nascimbene, Butterworths, London, pp. 357-387; Köchler, H. (1999) Decision-making Procedures of the european Institutions and Democratic Legitimacy. How Can Democratic Citizenship be Exercised on the Transnational Level? Report prepared for the Council of Europe, Innsbruck, pp. 1-23; Legarde, P. (1997) La nationalité francaise, Dalloz, Paris; La Torre, M. (1999) (ed.), European Citizenship: An Institutional Challenge, Kluwer Law International, den Haag; Malmborg, M. af, Stråth, B. (2202) (eds.), The Meaning of Europe: Variety and Contention Within and Among Nations, Berg, Oxford; Mann, M. (1996) ‘Ruling Class Strategies and Citizenship’, in Citizenships Today. The Contemporary Relevance of T.H. Marshall, eds. M. Bulmer & A.M. Rees, UCL Press, London; Makarov, A.N. (1962) Allgemeine Lehren des Staatsangehörigkeistsrechts, Kohlhammer, Stuttgart; Marrus, M.R. (1986) Les exclus. Les réfugiés européens au Xxè siècle, Calmann-Levy, Paris; Marshall, T.H. (1950) Citizenship and Social Class and Other Essays, Cambridge University Press, Cambridge; Mindus, P. (2006) ‘[Review of]  European Values at the turn of the Millenium’, in Teoria Politica, 2006:3, pp. 215-219; Mossé. C. (1993) Le citoyen dans la Grèce antique, Nathan, Paris; Offe, C., Preuss, U. (2006) ‘The Problem of Legitimation in the European Polity. Is Democracy the Answer?’, in C. Crouch, W. Streeck (eds.), The Diversity of Democracy, Elgar, Cheltenham; Olsen, J.P. (2002) ‘The Many Face of Europeanisation’, in Journal of Common Market Studies, 40, pp. 921-52; Park, R.E. (1928) ‘Human Migration and the Marginal Man’, in American Jornal of Sociology (may); Preuss, U.K. (2003) ‘Citizenship and the German Nation’, in Citizenship Studies, vol. 7, n. 1, pp. 37-55; Price, P.J. (1997) ‘Natural Law and Birthright Citizenship in Calvin’s Case’, in Yale Journal of Law and the Humanities, Winter, pp. 73-129; Radaelli, C.M. (2004) ‘Europeanisation: Solution or Problem?’ in European Integration online Papers (EIoP), 8 (16); Recchi, E. (2005) Migrants and Europeans: An Outline of the Free Movement of Persons in the EU, Academy of Migration Studies, Working Paper n. 38, Aalborg; Recchi E., (2006) ‘From Migrants to Movers: Citizenship and Mobility in the European Union’, in M.P. Smith, A. Favell (eds.), The Human Face of Global Mobility, Transaction Books, London; Recchi, E. (2008) ‘Cross-state Mobility in the EU: Trends, Puzzles and Consequences, in European Societies, vol. 10, n. 2, pp. 197-224; Rosanvallon, P. (1992) Le sacre du citoyen. Histoire du suffrage universel en France, Gallimard, Paris; Schade, H. (1995) ‘The Draft European Convention on Nationality’, in Austrian Journal of Public and International Law, vol. 49, n. 2, pp. 99-103; Scott, A., Bee, C., Scartezzini, R. (2008) ‘Special Issue of European Societies – Cultural Spaces in Europe. Editors’ Introduction’ in European Societies, vol. 10, n. 2, pp. 143-145; Shaw, J. (2007) The Transformation of Citizenship in the European Union. Elctoral Rights and Restructuration of Political Space, Cambridge University Press, Cambridge; Sherwin-Withe, A.N. (1939) The Roman Citizenship, Clarendon Press, Oxford;  Sills, D. (1968) ‘Citizenship’, in International Encyclopedia of the Social Sciences, Macmillan, New York; Turner, B.S. (ed.) (1993) Citizenship and Social Theory, Sage, London; Verwilghen, M. (1999) ‘Confict de nationalités. Plurinationalité et apatridie’, in Recueil des cours de l’Academie de droit international, vol. 277, Martinus Nijhoff, Den Haag.

[79]    Dyzenhaus, D., Reciprocity and Normativity in Legal Orders, in Netherlands Journal of Legal Philosophy 2014 (43) 2, 111. In particular, as for reciprocity and the theory of state, note that the author seeks to demonstrate that reciprocity can be seen as the foundational principle of normative, political and legal order in Hobbes’s social contract theory. Hobbes is commonly understood as demanding an almost unconditional obligation of citizens to follow the commands of the sovereign. Against this authoritarian reading, Dyzenhaus offers a liberal interpretation of Hobbes’s social contract according to which it establishes three kinds of reciprocal relations.

[80]   It is the idea that law is a sufficient condition for individuals to have liberty in the important sense of civil liberty that liberals and others will find problematic. For example, contemporary Republican political theorists, notably Philip Pettit and Quentin Skinner, regard the passages where Hobbes expresses this thought as deliberately aimed at undermining the ideal of a ‘free man,’ articulated by the Republicans of his day, in order to get to the conclusion that one is just as free under the rule of a despot as one is under the rule of a democratic parliament: see Philip Pettit, ‘Liberty and Leviathan,’ Politics, Philosophy, & Economics 4 (2005): 131; Quentin Skinner, Hobbes and Republican Liberty (Cambridge: Cambridge University Press, 2008).

     Pettit and Skinner are correct. But they do not grapple with Hobbes’s actual argument for this claim, an argument that might provide a better foundation for the Republican ideal of freedom as non-domination than either that of the Republicans of Hobbes’s day or of ours. A rare and better appreciation of Hobbes’s achievement is to be found in Michael Oakeshott’s neglected essay, ‘The Rule of Law’: (Michael Oakeshott, ‘The Rule of Law,’ in Oakeshott, On History and Other Essays (Indianapolis: Liberty Fund, 1999), 129).

[81]   See SemiCitizenship in Democratic Politics (Cambridge UP, 2009), The Citizen and the AlienDilemmas of Contemporary Membership by Linda Bosniak; The Birthright Lottery: Citizenship and Global Inequality. Harvard University Press, 2009 by Ayeleth Shachar; The Ethics of Immigration, Oxford, 2013 by Joseph Carens.

[82]   Joseph H. Carens, Aliens and Citizens: The Case for Open Borders, «Review of Politics», 49, 3, 1987, pp. 251-273; R. Bauböck, The Rights of Others and the Boundaries of Democracy, «European Journal of Political Theory», 6, 2007, p. 398.

     See also the cases Laval C-341/05 and Viking C-438/05. A comment in A. Davis, One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ, «Industrial Law Journal», 37, 2008, pp. 140-144; A. Davesne, The Laval Case and the Future of Labour Relations in Sweden, «Cahiers européens», 1, 2009, p. 9; A. Menéndez, J. Fossum, The Constitution’s Gift. A Constitutional Theory for a Democratic European Union, Rowman & Littlefield, Lanham, 2011, pp. 144-145. For the incidence of these cases framework on integration European and their meanings cfr. C. Joerges, S. Giubboni, Diritto e politica nella crisi europea, «Rivista critica del diritto privato», 31, 2013, pp. 343-367; C. Joerges, Europe’s Economic Constitution in Crisis in P. Mindus (ed.), European Citizenship: Twenty Years On, monographic number of «German Law Journal», August 2014.

[83]   For an updated bibliography on the issue of open borders, see http://openborders.info/pro-open-borders-reading-list/.

[84]   Mindus, P., Europeanisation of Citizenship within the EU: Perspectives and Ambiguities, in WP SS 2008 n. 2, Jean Monnet Working Papers.

[85]   See also (in alphabetic order): Abizadeh A., Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders, «Political Theory», 36, 1, 2008; Adorno F. (ed.), Dialoghi politici, II, UTET, Torino 1996; Alexander J.C., The Paradoxes of Civil Society, «International Sociology», XII, 2, 1997; Allan D.J., Individual and State in the Ethics and Politics, «Entretiens sur l’Antiquité Classique», IX (La ‘Politique’ d’Aristote), 1964; Allen D., Invisible Citizens: Political Exclusion and Domination in Arendt and Ellison, «Nomos», XLVI, 2005; Alpa G., Status e capacità. La costruzione giuridica delle differenze individuali, Laterza, Bari 1993; Andreski S., Review of M. Bulmer (ed.), Essays on the History of British Sociological Research, «Sociology», 20, 1, 1986; Ampolo C., La politica nella Grecia, Laterza, Bari 1981; Arangio-Ruiz G., Istituzioni di diritto costituzionale italiano, Fratelli Bocca, Torino 1913; Arendt H., Origins of Totalitarism, Harcourt, Brace & Co, New York 1966; trad. it. Origini del totalitarismo, Comunità, Milano 1967; Aristotele, (ed. by Barnes J.), The Complete Works of Aristotle, II, Princeton Univ. Press, Princeton 1984; Id., (ed. by di Lozza G.), La costituzione degli Ateniesi, Mondatori, Milano 1991; Id., (ed. by Jowett B.), Politics, II, Clarendon Press, Oxford 1885; Id., (ed. by Barker E.), The Politics of Aristotle, Oxford University Press, Oxford 1946; Id., (ed. by Newman W.L.), The Politics of Aristotle, Oxford University Press, Oxford 1950 (ed. orig. 1902); Id., (ed. by Viano C.A.), Politica, Utet, Torino 1955; Id., (ed. by Aubonnet J.), Politique, Les belles lettres, Paris 1971; Id., (ed. by Laurenti R.), Politica, in Opere, IX, Laterza, Roma-Bari, 1991; Aron R., Is Multinational Citizenship Possible?, «Social Research», 41, 4, Winter, 1974; Arrhenius G., The Democratic Boundary Problem, in Tersman F. (ed.), Democracy Unbound: Basic Explorations I, Stockholms Universitet, Stockholm 2005; A Arrhenius G., The Boundary Problem in Democratic Theory, in Tersman F. (ed.), Democracy Unbound: Basic Explorations I, Filosofiska institutionen – Stockholms Universitet, Stockholm 2005; Id., Defining Democratic Decision Making, in Svensson F., Sliwinski R., (ed.), Neither/Nor – Philosophical Essays Dedicated to Erik Carlson on the Occasion of His Fiftieth Birthday, LVIII, Uppsala Philosophical Studies, Uppsala 2011; Aubonnet J., Notice du livre III, in Aristotele, (ed. by Aubonnet J.), Politique, Les belles lettres, Paris 1971; Id., Notes complémentaires, in Aristotele, (ed. by Aubonnet J.), Politique, Les belles lettres, Paris 1971; Aymard A., Auboyer J., L’Orient et la Grèce antique, PUF, Paris 1953; Azimi V., Souveraineté nationale et conception française de la citoyenneté, in Gonod P., Dubois J.-P., (ed.), Citoyenneté, souveraineté, société civile, Dalloz, Paris 2003; Baccelli L., Cittadinanza e appartenenza, in Zolo D. (ed.), La cittadinanza. Appartenenza, identità, diritti, Laterza, Roma-Bari 1994; Id., Critica del repubblicanesimo, Laterza, Roma-Bari 2003; Bacon F., Argument in the Case of the Post-Nati of Scotland, (ed. orig. 1608); trans. it. Scritti politici, giuridici e storici, Utet, Torino 1971;  Bacon F., Scritti filosofici, Utet, Torino 1975; Balibar E., Citoyen sujet, «Cahier confrontation», XX, 1989; Baglioni L.G., Sociologia della cittadinanza: prospettive teoriche e percorsi inclusivi nello spazio sociale europeo, Rubbettino, Soveria Mannelli 2009; Balbo L., Cittadini, cittadini dimezzati, non cittadini, «Inquiesta», 4, 1990; Barker E., The Vocabulary of the Politics, in Aristotele, (ed. by Barker E.), The Politics of Aristotle, Oxford Univ. Press, Oxford 1958 (ed. orig. 1946); Balibar E., Les frontières de la démocratie, La découverte, Paris 1992; Id., Nous, citoyens d’Europe? Les frontières, État, le peuple, La découverte, Paris 2001; Id., Droit de cité, PUF, Paris 2002; Id., Citizenship, Basic Books, Cambridge 2012; Balibar E., Wallerstein I., Race, Nation, Classe, Éditions La Découverte, Paris 1988; Barbalet J.M., Citizenship, Rights, Struggle and Class Inequality, Open University Press, Milton Keynes 1988;   Barnes J., Aristotle and Political Liberty, in G. Patzig (ed.), Aristoteles’ ‘Politik’, Vandenhoeck & Ruprecht, Göttingen 1990; Basdevant J. (ed.), Dictionnaires de la terminologie du Droit international, Sirey, Paris 1960; Bastide S., L’affaire Nottebohm devant la Cour Internationale de Justice, «Revue critique de droit international privé», 45, 1956; Bauböck R., Citizenship and National Identities in the European Union, «Jean Monnet Working papers», now in Antalosvky E., Melchior J., Puntscher-Riekmann S., (eds., Integration durch Demokratie. Neue Impulse für die Europäische Union, Metropolis, Marburg, 1997; Id., Who Are the Citizens of Europe?, in Bauböck R., Ersbøll E., Groenendijk K., (eds.), Acquisition and Loss of Nationality, Amsterdam University Press, Amsterdam 2006; Id., The Rights of Others and the Boundaries of Democracy, «European Journal of Political Theory», 6, 2007; Id., Stakeholder Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting, «Fordham Law Review», 75, 2007; Id.,  Designing Multilevel Citizenship for the Future EU, paper presented to Meeting European Citizenship: Twenty Years On, University of Uppsala, 03/2013;  Bauböck R., Rundell J., (eds.), Blurred Boundaries: Migration, Ethnicity, Citizenship, Ashgate, Aldershot 1998; Beaud O., Le droit de vote des étrangers: l’apport de la jurisprudence constitutionnelle allemande à une théorie du droit de suffrage, «Revue Française de Droit Administratif», 8, 3, 1992; Beckman L., Citizenship and Voting Rights: Should Resident Aliens Vote?, «Citizenship Studies», 10, 2, 2006; Id., Frontiers of Democracy. The Right to Vote and Its Limits, Palgrave Macmillan, Basingstoke 2009; Beckman L., Erman E., Territories of Citizenship, Palgrave Macmillan, London 2012; Bellamy R., Four Models of European Citizenship, in Bort E., Keat R., (eds.), The Boundaries of Understanding: Essays in Honour of Malcolm Anderson, International Social Sciences Institute 1999; Bellamy R., Political Constitutionalism, Cambridge University Press, Cambridge 2007; Id., Citizenship. A Very Short Introduction, Oxford University Press, Oxford 2008; Bellamy R., Castiglione D., The Normative Turn in European Union Studies: Legitimacy, Identity and Democracy, mimeo, 1999;  Bellamy R., Castiglione D., Shaw J., (eds.), Making European Citizens. Civic Inclusion in a Transnational Context, Macmillan, Palgrave 2006; Beloch K.J., Griechische Geschichte, «Vereinigung Wissenschaftlicher Verleger», III, 1, 1922; Bendix R., Nation Building and Citizenship: Studies of our Changing Social Order, Wiley and Sons, New York 1964; Benhabib S., Transformations of Citizenship, Koninklijke Van Gorcum, Amsterdam 2001; Id., The Claims of Culture, Princeton University Press, Princeton 2002; Id., The Rights of Others: Aliens, Residents and Citizens, Cambridge University Press, Cambridge 2004; Id., The Right to Have Rights: Hannah Arendt on the Contradictions of the Nationstate, in Id., The Rights of Others: Aliens, Residents, and Citizens, Cambridge University Press, Cambridge 2004; Benton M., The Tyranny of the Enfranchised Majority? The Accountability of States to Their Non-Citizen Population, «Res Publica», 16, 4, 2010; Berndt Rasmussen K., Democracy and the Common Good – A Study of the Weighted Majority Rule, Ph.D. diss., Stockholm Univ. Press, Stockholm 2013; Bernstein J.A., Adam Ferguson and The Idea of Progress, «Studies in Burke and His Time», XIX, 2, 1978; Bergström L., Democracy and Political Boundaries, in Tersman F. (ed.), Democracy Unbound – Basic Explorations II, Stockholms Universitet, Stockholm 2006; Berry C.J., Social Theory of the Scottish Enlightenment, Edinburgh University Press, Edinburgh 1997; Bevir M., New Labour. A Critique, Routledge, London/New York 2005.

[86]   Jacobson, D., Rights Across Borders: Immigration and the Decline of Citizenship, John Hopkins University Press, Baltimore 1996, p. 9; A. Shachar, The Birthright Lottery: Citizenship and Global Inequality, Harvard University Press, Cambridge (Mass.) 2009; C. Crouch, K. Eder, D. Tambini (eds.), Citizenship, Markets, and the State, Oxford University Press, Oxford 2001, p. 7; G. Marramao, The Passage West: Philosophy After the Age of the Nation State, Verso, New York 2009; S. Sassen, Globalization and Its Discontents, The New Press, New York 1998, p. xxi; trans. it. Globalizzati e scontenti, Il saggiatore, Milano 2002, p. 19; E. Danticat, Foreword, in O. Fiss, A Community of Equals: The Constitutional Protection of New Americans, Beacon Press, Boston (MA) 1999; D. Leydet, Citizenship, ad vocem, in Stanford Encyclopedia of Philosophy, <http://plato.stanford.edu/entries/citizenship>, in particular pp. 6-14; J. Rawls, Justice as Fairness: Political not Metaphysical, «Philosophy and Public Affairs», 14, 1985, p. 233; R. Dworkin, Law’s Empire, Harvard University Press, Cambridge (Mass.) 1986.

[87]   The argument that boundaries are necessary to avoid a tragedy of the commons, supported by
Rawls in The Law of Peoples, “Critical Inquiry ‘, 20, 1, 1993, p. 39, has been the subject of much criticism by empirical studies on migration, who insisted on immigrants’ contributions economy and society in general. For instance, see Legrain, P., Immigrants: Your Country Needs Them, Princeton University Press, Princeton 2007.

[88]   In particular, Hannah Arendt is probably best known for having coined the following two phrases: ‘the right to have rights’ and ‘the banality of evil.’ She uses the first in the ninth chapter of her book The Origins of Totalitarianism, Schocken Books, New York, 1951.

[89]   R. Bauböck, Immigration and the boundaries of citizenship (1991), Monographs in Ethnic Relations No. 4.

[90]   As for the Arendt’s theory and on this specific point I refer to H. Brunkhorst, Are Human Rights Self-Contradictory? Critical Remarks on a Hypothesis by Hannah Arendt, «Constellations», 3, 1996, pp.190-99; F. Michelman, Parsing “A Right to Have Rights”, «Constellations», 3, 1996, pp. 200 sg.; S. Benhabib, The Right to Have Rights: Hannah Arendt on the Contradictions of the Nation-state, in The Rights of Others: Aliens, Residents, and Citizens, Cambridge University Press, Cambridge 2004, pp. 49 sg.; S. Gosepath, Hannah Arendts Kritik der Menschenrechte und ihr‚ Recht, Rechte zu haben, in Heinrich-Böll-Stiftung (ed.), Hannah Arendt: Verborgene Tradition – Unzeitgemäße Aktualität?, Akademie Verlag, Berlin 2007, pp. 279-290; C. Menke, The “Aporias of Human Rights” and the “One Human Right”: Regarding the Coherence of Hannah Arendt’s Argument, «Social Research Paper», 74, 3, 2007, pp. 739-762, <http://findarticles.com/p/articles/mi_m2267/is_3_74/ai_n24943363/print>; P. Birmingham, Hannah Arendt and Human Rights: The Predicament of Common Responsibility, Morton, Bloomington 2006; S. Parekh, Hannah Arendt and the Challenge of Modernity, Routledge, Oxford 2008; M. Krause, Undocumented Migrants: An Arendtian Perspective, «European Journal of Political Theory», 7, 3, 2008, pp. 331-348; A. Schaap, Enacting the Right to Have Rights: Jacques Rancière’s Critique of Hannah Arendt, «European Journal of Political Theory», 10, 1, 2011, pp. 22-45; M. Goldoni, C. McCorckindale, (eds.), Hannah Arendt and the Law, Hart, Oxford, 2012.

[91]   M. Zürn, Global governance and legitimacy problems, «Government and Opposition», 39, 2004, pp. 260-87; J.K. Schaffer, The boundaries of transnational democracy:Alternatives to the all-affected principle of democratic inclusion, in «Review of International Studies», 1, 2011.

[92]   R. Alexy, On Balancing and Subsumption. A Structural Comparison, en «Ratio Juris», 16 (2003): 433-449: the relationship between constitutional rights and proportionality is one of the main themes of the contemporary constitutional debate. Two basic views are in conflict: the thesis that there exists some kind of a necessary connection between constitutional rights and proportionality analysis, and the thesis that there exists no necessary connection of whatever kind between constitutional rights and proportionality.

[93]   Bauböck, R.,1994. Transnational citizenship: membership and rights in international migration, Aldershot, Edward Elgar.

[94]          To avoid confusions, the author calls a “citizen” only someone who is both granted with the right of political participation and recognized as a full member of the democratic society. People with partial membership status and the partial rights attached to it, are not considered as citizens. Also, the author does not try to disconnect the membership status from the rights and duties of the citizen. On the contrary, rights are determined by membership. Citizenship is a unique full membership status and the recognition of it give legitimacy to participate to collective decisions.

[95]   Bauböck, R., (ed.), 2006, Migration and Citizenship. Legal Status, Rights and Political Participation, Amsterdam University Press, IMISCOE report series, p. 128.

[96]   Rubio-Marín, R., 2000, Immigration as a democratic challenge, Cambridge, Cambridge University Press.

[97]   Torpey, J., 2000, The Invention of the Passport: Surveillance, Citizenship and the State, Cambridge University Press, Cambridge.

[98]   Bauböck, R., 2011, Citizenship and Freedom of Movement, in Roger Smith (ed.), Citizenship, Borders, and Human Needs, Pennsylvania University Press.

[99]   Schwartz, B., ‘The Social Psychology of the Gift,’ American Journal of Sociology 73 (1967): 1-11; Deen, C., Encyclopedia of Global Justice, Springer, New York 2011.

[100]  Ellermann, A., States against Migrants. Deportation in Germany and the United States, Cambridge Univ. Press, Cambridge 2009; Dauvergne, C., Making People Illegal. What Globalisation Means for Migration and Law, Cambridge Univ. Press, Cambridge 2009; Price, M.E., Rethinking Asylum. History, Purpose and Limits, CUP, Cambridge 2009, cap. 2; Dummett, A., The Transnational Migration of People Seen From Within a Natural Law Tradition, in B. Barry, R. Goodin, Free Movement: Ethical Issues in the transnational migration of people and of money, Pennsylvania State University Press, Pennsylvania 1992, pp. 169-180; Turner, B.S., Citizenship Studies: A General Theory, «Citizenship Studies», I, 1, 1997.

[101]  Rubio-Marín, R., 2000, Immigration as a democratic challenge, cit., p. 178.

[102]  Bauböck, R., 2009, “The rights and duties of external citizenship”, in Citizenship Studies, 13 (5): 475-499.

[103]  Carens, J., 2002, “Citizenship and civil society: what rights for residents?”, R. Hansen and P. Weil, eds. Dual nationality, social rights and federal citizenship in the US and Europe: the reinvention of citizenship. Oxford: Berghahn Books, 100–118.

[104]  Carens, J., 2013, The ethics of immigration. New York: Oxford University Press.

[105]  Goodin, R., What Is So Special About Our Fellow Countrymen ?, ‘Ethics’, 98, 4, 1988, pp. 663-686, p. 688. His analysis is a counter example, which shows that, under international law, “We may poison our compatriots’ air, stop their flow of water, deprive them of liberty by conscription, deny them legal remedies for damage to persons and their property – all in a way that we cannot do to nonresident nonnationals”.

[106]  Torpey, J., The Invention of the Passport: Surveillance, Citizenship and the State, Cambridge University press, Cambridge 2000.

[107]  Held, D., Citizenship and Autonomy, in Id., Political Theory and the Modern State, Polity Press, Cambridge 1989, p. 189.

[108]  Carens, J., 2014, “An overview of the ethics of immigration”, cit., citing the European Council 2003,  European Council Directive 2003/109/EC.

[109]  Dauvergne, C., Making People Illegal. What Globalisation Means for Migration and Law, Cambridge University Press, Cambridge 2009, p. 35. But cfr. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150; UNHCR, Asylum levels and Trends in Industrialized Countries, 2011, available at: <http://www.unhcr.org/4e9beaa19.html>.

[110]  Giddens, A., T.H. Marshall, the State and Democracy, in M. Bulmer, A.M. Rees, (eds.), Citizenship Today, Psychology Press, 1996, p. 65. Contra, cfr. Dahrendorf, R., The Modern Social Conflict, Transaction Publishers, 2011.

[111]  Ellermann, A., States against Migrants. Deportation in Germany and the United States, Cambridge University Press, Cambridge 2009, p. 25; Sassen, S., Losing control? Sovereignty in the Age of Globalization, Columbia University Press, NY 1996.

[112]  Bauböck (2011).

[113]  Pitt-Rivers, J., (2012) ‘The Stranger, the Guest and the Hostile Host: Introduction to the Study of the Laws of Hospitality,’ in Contributions to Mediterranean Sociology, ed. J.G. Peristiany (The Hague: Mouton), 13-31.

[114]  Komter, A., Social Solidarity and the Gift (New York: Cambridge University Press, 2005).

[115]         The international standards, recommendations, reports and policy documents scrutinised show that the main characteristic of temporary migration is that the stay is limited in time, meaning not permanent. Various categories of migrants are usually encapsulated under a “temporary” scheme; these often include categories such as seasonal workers, project-tied workers, specifi cemployment worker, contract workers, students, tourists, trainees, and service providers.

[116]  Bauböck, R., 2011, “Temporary migrants, partial citizenship and hypermigration”, Critical Review of International Social and Political Philosophy, Volume 14, Issue 5. Special Issue: Democratic Citizenship and its Futures.

[117]         The UN has defined an international migrant as “any person who changes his or her country of usual residence.” The change of country of usual residence necessary to become an international migrant must involve a period of stay in the country of destination of at least a year. This standard however presents similar methodological limitations at times of ascertaining the transformative characteristics of human mobilities and the impossibility of capturing people’s intentions into law and policy. The UN differentiates between short-term migration (between three months and a year) and long-term migration (longer than a year) – both, short- and long-term migration can be temporary in nature. The 1990 UN Migrant Workers Convention does not provide defi nitions 30 of temporary migration but of the following three categories that are all temporary: “seasonal worker”, “project-tied worker” and “specific-employment worker.”

[118]         A key message from ILO instruments is that these key labour standards cannot be dependent on time-bound defi nitions of migration. The ILO standards are inclusive in that a lot of the conventions and recommendations cover temporary migration. The 1997 ILO Report of the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration specifi es that the term time-bound migrants is meant to cover “seasonal workers, project-tied workers, special purpose workers, cross-border service providers, students and trainees but no other categories.” The 2010 ILO publication on a rights-based approach to labour migration lists temporary migration as “referring to admission of workers (sometimes referred to as ‘guest workers’) for a specifi ed time period, either to fi ll year-round, seasonal or project-tied jobs, or as trainees and service providers under Mode 4 (Movement of Natural Persons) of the GATS.

[119]         The term “temporary migration” is normatively charged with a number of assumptions and methodological biases, e.g. temporary migration schemes allow governments to legally discriminate foreign workers and their families; temporary migration also (at least formally) excludes the phenomenon of irregular migration. In the light of this we raise the question as to whether it is still adequate to speak of temporary migration, or whether it would be actually more appropriate to use the terms “temporariness” and “(temporary) mobility” in the conceptual framework of EURA-NET on socio-economic transformative characteristics.

[120]         As the European Committee on Migration of the CoE has highlighted, however, a clear-cut distinction between a temporary and permanent stay might be difficult or even impossible to make in practice. This has meant that the EU free movement of persons aimed to abolish “temporariness” from the very beginning when the EU Treaties were designed. The deregulating rules on the free movement for persons were meant to encourage EU citizens to move to another EU country for the purpose of employment. As regards third country nationals, EU migration law does not expressly provide for a defi nition of “temporary migration”, one could argue that it currently covers a wide range of human mobility experiences for periods of up to five years. This finding could be derived from Council Directive 2003/109/EC on EU long-term resident status for third-country nationals: after five years of legal and continuous residence in a Member State the stay of third-country nationals is considered as “permanent.” The EU Migration Directives regard students, au pairs, seasonal workers, and intra-corporate transferees explicitly as “temporary migrants.” The EU is keen that temporary migration does not become permanent and has displayed an EU policy on return and expulsion for these individuals not to become ‘permanent’: Directive 2014/36 on seasonal workers sets out incentives and safeguards to prevent overstaying or temporary stay from becoming permanent (direct reference is made to Return Directive 2009/52).

[121]         On the international level no one single universal definition of temporary migration exists as the research on international standards, recommendations, reports and policy documents has revealed. However, different international and regional organisations have introduced a number of conceptual features and definitions of relating concepts for the purposes of calculating international migration statistics, or at times of ensuring that international labour standards apply to all migrant workers, independently of whether their mobility project can be labelled as temporary or permanent.

[122]         Although the EU legal framework sets forth different rules for EU citizens (under the Citizens’ Directive 2004/38) and third-country nationals (under the Schengen rules and the Long-Term Residents’ Directive), interestingly the framing of temporariness is the same to both groups; namely the time period up to three months; the time period between three months and five years, which one could argue covers to the EU’s framing of what is temporary for the purposes of European migration law; and the time period after five years which corresponds with the EU’s understanding of permanent residence.

[123]         Under the agreement signed by the Ministry of Internal Affairs and the Italian Postal Service, requests for permits to stay must be submitted to the post office by filling out the application forms (available at all post offices). Upon submission of the request, student must be prepared to show a valid form of ID and the OPEN envelope containing all of the appropriate forms.

The following documentation is required for the first issue of a permit to stay:
copy of the student’s entire passport; copy of a document that certifies registration at the Italian University; copy of an insurance policy that guards against the risk of illness and injury, and that is valid in the pertaining territory for the duration of the stay.

The postal employees will issue a receipt which serves as a documentation of the application’s submission. In the second stage of the process, the student will be given a date to meet with the Police. During this appointment the applicant must bring 4 passport size photographs and they will be digitally fingerprinted. The student will then be given a second date during which he or she must go to the Police to withdraw his or her permit to stay.

[124]  Bauböck (2011), 13.

[125]         See Mindus, P., The Contemporary Debate on Citizenship. Some Remarks on the Erased of Slovenia, «REVUS: Revija za evropsko ustavnost», 9, 2009, <http://sites.google.com/site/revijarevus>, pp. 29-44; Lajh, D., Ramet, S.P., Slovenia, in J. Goehring (ed.), Nations in Transit 2008, Freedom House, Budapest & New York: 2008, pp. 535-552; <http://www.freedomhouse.hu/images/fdh_galleries/NIT2008/NT-Slovenia-final.pdf>.

[126]  Delpla, I., 2014, “Cosmopolitisme ou internationalisme méthodologique”, Raisons politiques, 2014/2 n. 54, pp. 87-102.

[127]  Odmalm, P., Migration Policies and Political Participation. Inclusion or Intrusion in Western Europe?, Palgrave Macmillan, Basingstroke 2005; Bosniak, L., Denationalisation of Citizenship, in A. Aleinikoff, Klusmeyer D., (ed.), Citizenship Today: Global Perspectives and Practices, Carnegie Endowment for International Peace, Washington
2001; http://eudocitizenship. eu/about/fracit, 2013.

[128]  Dahrendorf, R., The Changing Quality of Citizenship, in B. Van Steenbergen, The Condition of Citizenship, Sage, London 1994, p. 12.

[129]  Buchanan, A., ‘Justice as Reciprocity versus Subject-Centered Justice,’ Philosophy and Public Affairs 30(3) (1995): 227-52; Barry, B., Justice as Impartiality (Oxford: Clarendon Press, 1995), 3.

[130]  Rawls, J., A Theory of Justice (Cambridge, MA: Harvard University Press, 1999), 118–123.

[131]  Furman, J., Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalences of Rawlsian Justice, «Yale Law Journal», 1, 1997, pp. 1197-1231; Mindus, P., Sorting Out Modern Emergency Rules – A Theoretical Framework, «Redescriptions. Finnish Yearbook for Political Philosophy», 14, 2010, pp. 109-134.

[132]  Sandel, M., Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982), 87, 179.[132]

[133]  UNHCR, Asylum Levels and Trends in Industrialized Countries; M. Price, Rethinking Asylum. History, Purpose and Limits, Cambridge University Press, Cambridge 2009, p. 8.

[134]  Marshall, T.H., The Right to Welfare and Other Essays, London, 1981, pp. 141-142.

[135]  Schaffer, J.K., Democrats Without Borders. A Critique of Transnational Democracy, Ph.D. diss., Gothenburg Studies in Politics, Göteborg 2008; R. Dahl, Democracy and Its Critics, Yale University Press, New Haven 1989, p. 122; Mapel, D., Fairness, Political Obligation, and Benefits Across Borders, «Polity», 37, 4, 2005, pp. 426-42. See also Abizadeh, A., Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders, «Political Theory», 36, 1, 2008, p. 49.

[136]  Delpla,  I., (2014), 97.

[137]  F. G. Whelan, Democratic Theory and the Boundary Problem, in Liberal Democracy, J. Pennock, J.W. Chapman, (eds.), New York UP, New York 1983. R. Dahl refers to this principle in relation to the ‘problem of unity’ in Democracy and Its Critics, Yale UP, New Haven (Conn.) 1989; Arrhenius, G., The Boundary Problem in Democratic Theory, in Tersman, F., (ed.), Democracy Unbound: Basic Explorations I, Filosofiska institutionen – Stockholms Universitet, Stockholm 2005, pp. 14-29; Bergström, L., Democracy and Political Boundaries, in F. Tersman (ed.), Democracy Unbound – Basic Explorations II, Stockholms Universitet, Stockholm 2006, <http://people.su.se/~folke/Bergstrom.pdf>, pp. 1-25; Saward, M., The Terms of Democracy, Polity Press, Cambridge 1998; Goodin, R., Enfranchising All Affected Interests, and its Alternatives, «Philosophy & Public Affairs», 35, 1, 2007; Hilson, C., EU Citizenship and the Principle of Affectedness, in R. Bellamy, D. Castiglione, J. Shaw, (eds.), Making European Citizens. Civic Inclusion in a Transnational Context, Palgrave Macmillan, NY 2006, pp. 56-74; Brubaker, R., Citizenship and Nationhood in France and Germany, Harvard University Press, Cambridge (Mass.) 1992; Guiguet, B., Citizenship and Nationality: Tracing the French Roots of the Distinction, in La Torre, M., (ed.), European Citizenship: An Institutional Challenge, Kluwer Law International, Den Haag 1999, pp. 95-111; Miller, D., Citizenship and National Identity, Polity Press, Cambridge 2000; De Schutter, H., Tinnevelt, R., (eds.), Nationalism and global justice: David Miller and His Critics, Routledge, New York 2011.

[138]  Somers, M., 1994, “Reclaiming the epistemological “Other”: Narrative and the social constitution of identity”, in C. Calhoun (Ed.), Social theory and the politics of identity (pp. 37-99), Cambridge, Blackwell.

[139]  McAdams, D., 2001, “The psychology of life stories”, in Review of General Psychology, 5 (2), pp. 100-122.

[140]  Bolzman, C., Vial, M., 2007, Migrants au quotidien : les frontaliers. Pratiques, représentations et identités collectives, Zurich, Éditions Seismo, p. 264.

[141]  Turner, B.S., Contemporary Problems in the Theory of Citizenship, in Id. (ed.), Citizenship and Social Theory, Sage, London 1993, p. VII;  Turner, B.S., Citizenship Studies: A General Theory, in «Citizenship Studies», 1997, I, 1, p. 16; Dahrendorf, R., Citizenship and Beyond: The Social Dynamics of an Idea, «Social Research», 41, 1974, pp. 673-701; Walzer, M., Citizenship, in T. Ball, J. Farr, R.L. Hanson, (ed.), Political Innovation and Conceptual Change, Cambridge 1989, p. 213; Weil, P., Access to Citizenship: A Comparison of Twenty-Five Nationality Laws, in T.A. Aleinikoff, D. Klusmeyer, (ed.), Citizenship Today: Global Perspectives and Practices, Washington 2001; Waldrauch, H., Acquisition of Nationality, in R. Bauböck, et al., (ed.), The Acquisition and Loss of Citizenship in EU Member States: Rules, Practices, Quantitative Developments, Amsterdam University Press, Amsterdam 2006; Howard, M.M., The Politics of Citizenship in Europe, Cambridge University Press, Cambridge 2009, pp. 119-147; Goodman, S.W., Integration requirements for Integration’s Sake? Identifying, Categorizing, and Comparting Civic Integration Policies, «Journal of Ethnic and Migration Studies», 36, 4, 2010, pp. 753-772; Joppke, C., Comparative Citizenship: A Restrictive Turn in Europe?, «Journal of law and Ethics of Human Rights», 36, 4, 2008, pp. 1-41.

[142]  Goodin, R., 2007, “Enfranchising All Affected Interests, and Its Alternatives”, in Philosophy & Public Affairs, Volume 35, Issue 1, pp. 40-68.

[143]  Lippman, W., The phantom public, Harcourt & Brace, New York 1925; Id., Public Opinion, Harcourt & Brace, New York 1922; Dewey, J., The Public and its problems, Holt, New York 1927; Saward, M., A critique of Held, in B. Holden (ed.), Global democracy: Key debates, Routledge, London 2000;. Zürn, M., Global governance and legitimacy problems, «Government and Opposition», 39, 2004, pp. 260-87; Schaffer, J., The boundaries of transnational democracy: Alternatives to the all-affected principle of democratic inclusion, in «Review of International Studies», 1, 2011.

[144]  Isin, E.F., Turner, B.S., (eds.), Handbook of Citizenship Studies, Sage, London 2002, p. 9; Marshall, T. Citizenship and Social Class and Other Essays, Cambridge University Press, Cambridge 1950; Bulmer, M., Rees, A., (eds.), Citizenship Today. The Contemporary Relevance of T.H. Marshall, UCL Press, London, 1996; Vincent, A.,  Plant, R., Philosophy, Politics and Citizenship: the Life and Thought of the British Idealists, Basil Blackwell, Oxford 1984; Dahrendorf, R., The Modern Social Conflict. An Essay on the Politics of Liberty, University of California Press, Los Angeles 1988; Brinkmann, C., Citizenship, ad vocem, in Encyclopedia of the Social Sciences, III, Macmillan, New York 1937; Borgatta, M., Encyclopedia of Sociology, Macmillan, New York 1992; Smelser, N., Handbook of Sociology, Sage, Newbury Park (CA) 1988; Theodorson, A., A Modern Dictionary of Sociology, Crowell, New York 1969;  Mitchel, G.D., Dictionary of Sociology, Routledge and Paul, London 1968; Sills, D., International Encyclopaedia of the Social Sciences, MacMillan, New York 1968; Van Gunsteren, H., Notes Towards a Theory of Citizenship, in F.R. Dalmayr (ed.), From Contract to Community. Political Theory at the Crossroads, Marcel Dekker, New York 1978.

[145]  R. Goodin, What Is So Special About Our Fellow Countrymen?, «Ethics», 98, 4, 1988, p. 668.

[146]  Shapiro, I., The Moral Foundations of Politics (New Haven, CT: Yale University Press), 219–20; Näsström, S., ‘The Challenge of the All-Affected Principle’, Political Studies 59, no. 1 (2010): 116–34, Schaffer, J., ‘The Boundaries of Transnational Democracy: Alternatives to the All-Affected Principle’, Review of International Studies, on CJO 2011.doi:10.1017/S0260210510001749.

[147]  Owen, D., 2012, “Constituting the polity, constituting the demos: on the place of the all affected interests principle in democratic theory and in resolving the democratic boundary problem”, in Ethics & Global Politics, Vol. 5, No. 3, pp. 129-152.

[148]  Berndt Rasmussen, K., Democracy and the Common Good – A Study of the Weighted Majority Rule, Ph.D. diss., Stockholm Univ. Press, Stockholm 2013; Tännsjö, T., Future People, the All Affected Principle, and the Limits of the Aggregation Model of Democracy, in T. Rønnow-Rasmussen et. al. (ed.), Hommage à Wlodek: Philosophical papers dedicated to Wlodek Rabinowicz, <http://www.fil.lu.se/hommageawlodek/site/papper/TannsjoTorbjorn.pdf >. Cfr.  Shapiro, I., Democratic Justice, Yale University Press, New Haven 1999.

[149]  Dahrendorf, R., The Changing Quality of Citizenship, in B. Van Steenbergen (ed.), The Condition of Citizenship, SAGE, London 1994, p. 17.

[150]    Maas, W., Creating European Citizens, Rowman & Littlefield, Lanham (MD) 2007; Margiotta, C., Vonk, O., Dual citizenship and dual citizenship laws of the Member States and European citizenship, ‘Right, immigration and citizenship: a quarterly magazine, “A-12, 4, 2010, pp. 13-34; Howard, M., Variations in Dual Citizenship Policies in the Countries of the EU, “International Migration Review”, 39, 3, 2005, pp. 697-720; Howard, M., The Politics of Citizenship in Europe, Cambridge University Press, Cambridge 2009, pp. 74-75; Spiro, P.J., Dual Citizenship as Human Right, “I-CON ‘, 8, 1, 2010, abstracts and p. 128; Faist, T., Kivisto, P., (eds.), Dual Citizenship in Global Perspective. From Unitary to Multiple Citizenship, Palgrave, Macmillan, 2007; Faist, T., (ed.), Dual Citizenship in Europe: From Nationhood to Societal Integration, Ashgate, Aldershot, 2007; Cholewinski, R., Perruchoud, P., MacDonald, E., International Migration Law: Development, Paradigms and Key Challenges, Nasser Press, The Hague 2007, pp. 87-103.

[151]  Bauböck, R., 2005, “Expansive Citizenship – Voting beyond Territory and Membership”, in Political Science and Politics /Volume /Issue 04, pp. 683-68; Bauböck, R., Citizenship and National Identities in the European Union, in E. Antalosvsky, J. Melchior, S. Puntscher-Riemann, (eds.), Integration durch Demokratie. Neue Impulse für die europäische Union, Metropolis, Marburg 1997, pp. 302-20.

[152]         Bauböck, R., (2005) 672.

[153]  Owen, D., (2012) 167.

[154]  “Social heritage”: belongs to Marsahll, (1981) 78.

[155]  Nino C.S., Radical Evil on Trial, Yale University Press, New Haven, 1996; Nozick R., Anarchy, State and Utopia, Basic Books, New York, 1975; Nussbaum M.C., Duties of Justice, Duties of Material Aid. Cicero’s Problematic Legacy, in «Journal of Political Philosophy», 8, 2000, pp. 176-206; Nussbaum M.C.; Glover J., Women, Culture and Development, Oxford University Press, Oxford, 1995; Nussbaum M.C.; Sen A.K., (ed.), The Quality of Life, Clarendon Press, Oxford, 1993; Phillips A., Multiculturalism without Culture, Princeton University Press, Princeton, 2007; Rawls J., Political Liberalism, Columbia University Press, New York, 1993; Rawls J., Reply to Habermas, in «The Journal of Philosophy», vol. XCII, 3, 1995; Rawls J., Tanner Lectures on Human Values, University of Utah Press, Salt Lake City, 1982; Rawls J., The Law of Peoples with “The Idea of Public Reason Revisited”, Harvard College, Harvard, 1999; Rawls J., Collected Papers, S. Freeman, Harvard University Press, Cambridge (Mass.), 1999; Raz J., The Idea of an Overlapping Consensus, in «Oxford Journal of Legal Studies», 7, pp. 1-25, 1987; Raz J., The Morality of Freedom, Clarendon, Oxford, 1986.

[156]  Hammar, Th., Democracy and the Nation-state. Aliens, Denizens and Citizens in the World of International Migration, Averbury/Gower Publ., 1990 Aldershot. As to “voice“: Hirschman, A., Exit, Voice, and Loyalty, Harvard University Press, Cambridge (Mass.) 1970. See also Sassen, S., Losing Control? Sovereignty in the Age of Globalization, Columbia University Press, New York 1996; Shaw, J., The Transformations of Citizenship in the European Union. Electoral Rights and Restructuration of Political Space, Cambridge University Press, Cambridge 2007; Bauböck, R., Stakeholder Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting, «Fordham Law Review», 75, 2007, 2393-2447.

[157]  Lippmann, W., 1922 [1997], Public Opinion, New York, Free Press.

[158]  Beckman, L., Citizenship and Voting Rights: Should Resident Aliens Vote?, “Citizenship Studies”, 10, 2, 2006, pp. 153-65; Beckman, L., Frontiers of Democracy. The Right to Vote and Its Limits, Palgrave Macmillan, Basingstoke 2009; Beckman, L., Erman, E., Territories of Citizenship, Palgrave Macmillan, London 2012; Haynes, J., (ed.), Routledge Handbook on Democratization, Routledge, London 2009, in particular the term «inclusion».

[159]  Young, I., Polity and Group Difference. A Critique of Universal Citizenship, «Ethics», 99, 1989, 250.; Id., Justice and Politics of Difference, Princeton University Press, Princeton, 1990; Parekh, B., British Citizenship and Cultural Difference, in G. Andrews (ed.), Citizenship, Lawrence and Wishart, London 1991, 183; Kymlicka, W.; Norman, W., Return of the Citizen: A Survey of Recent Work on Citizenship Theory, «Ethics», 104, 2, 1994, 223; Heather, D., Citizenship. The Civic Ideal in World History, Politics and Education, Longman, London 1990, 314-45.

[160]  Janoski, T., Citizenship and Civil Society: A Framework of Rights and Obligations in Liberal, Traditional, and Social Democratic Regimes, Cambridge University Press, Cambridge 1998; Heather, D., Citizenship: The Civic Ideal in World History, Politics and Education, Longman, London 1990, p. 293; Van Steenbergen, B., The Condition of Citizenship: An Introduction, in Id. (ed.), The Condition of Citizenship, Sage, London 1994, p. 1. See also Giddens, A., Profiles and Critiques in Social Theory, Macmillan, London 1982; Barbalet, J., Citizenship, Rights, Struggle and Class Inequality, Open University Press, Milton Keynes 1988; Mann, M., Ruling Class Strategies and Citizenship, «British Journal of Sociology», 21, 1997, pp. 339–354; Torpey, J., The Invention of the Passport: Surveillance, Citizenship and the State, Cambridge University Press, Cambridge 2000; Dauvergne, C., Making People Illegal. What Globalisation Means for Migration and Law, Cambridge University Press, Cambridge 2009, p. 124; Shachar, A., The Birthright Lottery: Citizenship and Global Inequality, Harvard University Press, Cambridge (Mass.) 2009.

[161]        Eleftheriadis, P., Citizenship and Obligation, in P. Eleftheriadis, J. Dickson, The Philosophical Foundations of European Union Law, Oxford University Press, Oxford 2012.

[162]  Dryzek, J., Democracy in Capitalist Times; Ideals, Limits and Struggles, OUP, Oxford 1996; Dahl, R., After the Revolution? Authority in a Good Society, Yale University Press, New York 1970, p. 64; Scheuerman, W., Cosmopolitan Democracy and the Rule of Law, «Ratio Iuris», 15, 4, 2002, pp. 439-57; Føllesdal, A., Democracy and Federalism in the European Union, in Id., P. Koslowski, (ed.), Democracy and the European Union, Springer, Berlin 1998; Whelan, F., Democratic Theory and the Boundary Problem, in J. Roland Pennock, J.W. Chapman, (eds.), Liberal Democracy, New York University Press, New York 1983, pp. 13-47; Arrhenius, G., The Boundary Problem in Democratic Theory, in Tersman, F., (ed.), Democracy Unbound: Basic Explorations I, Filosofiska institutionen – Stockholms Universitet, Stockholm 2005, pp. 14-29; Id., Defining Democratic Decision Making, in F. Svensson, R. Sliwinski, (eds.), Neither/Nor – Philosophical Essays Dedicated to Erik Carlson on the Occasion of His Fiftieth Birthday, LVIII, Uppsala Philosophical Studies, Uppsala 2011, pp. 13-29.

[163]  Mindus, P., Global Harmony and Rule of Law: An Empirical-Analytic Approach, in T. Bustamante, O. Onazi (eds.), Global Harmony and the Rule of Law. Proceedings of the 24th World Congress of the IVR, I, F. Steiner Verlag, Leipzig 2012; Rees, A., T.H. Marshall and the Progress of Citizenship, in M. Bulmer, A.M. Rees, (ed.), Citizenship Today – The Contemporary Relevance of T.H. Marshall, UCL Press, London 1996, p. 2.

[164]  Dewey, J., The Early Works, 1882–1898, The Middle Works, 1899–1924, and The Later Works, 1925–1953, Southern Illinois University Press; Dewey., J., The Public and its Problems, Southern Illinois University Press, 2010.

[165]  Rundle, K., Forms Liberate: Reclaiming the Jurisprudence of Lon L. Fuller (Oxford: Hart, 2012), 46-47; Krygier, M., Philip Selznick: Ideals in the World (Stanford: Stanford University Press, 2012), 29-30; Fuller, L., ‘Human Interaction and the Law,’ in The Principles of Social Order. Selected Essyas of Lon Fuller, ed. Winston, K., (Durham: Duke University Press 1981), 211-46, at 213.

[166]  Asen., R., “The Multiple Mr. Dewey: Multiple Publics and Permeable Borders in John Dewey’s Theory of the Public Sphere.” Argumentation and Advocacy 39 (2003).

[167]  L. Prieto, “La limitación de los derechos fundamentales y la norma de clausura del sistema de libertades”, Revista del Insitituto Bartolomé de las Casas, 2008, pp. 429-468; L. Prieto, “El constitucionalismo de los derechos”, Revista Española de Derecho Constitucional, año 24, num. 71, Mayo-agosto 2004, pp. 47-72; L. Ferrajoli, “Derechos fundamentales”, en Id., Derechos y garantías, Trotta, Madrid, 1999; G. Pino, “Conflictos entre derechos fundamentales. Una crítica a Luigi Ferrajoli”, Doxa, 32, 2009, pp. 647-664.

[168]  H. Kelsen, Reine Rechtslehre, 2e éd. (1960),  Pure Theory of Law, Title VI [«Law and State»]; Alf Ross, «On the concepts “State” and “State organs” in Constitutional Law», Scandinavian Studies in Law, vol. V, 1961, pp. 111-129; Harry Eckstein, «On the “Science” of the State», Daedalus, Vol. 108, N°4, The State (Fall, 1979), pp. 1-20; Martin Loughlin, In Defence of Staatslehre, Der staat, 48 (1), pp. 1-28; Michel Troper, Por una teoria juridica del Estado, trad. de M. Venegas Grau, Prologo de Gregorio Peces-Barba, Dykinson, Madrid (1998) [trad. ital. Per una teoria giuridica dello Stato (a cura di Agostino Carrino), Guida, Napoli], Prólogo; Neil MacCormick, «Beyond the Sovereign State», The Modern Law Review, Vol. 56, (No. 1 (Jan., 1993)), pp. 1-18; Neil Walker, «The Idea of Constitutional Pluralism», Modern Law Review, Vol. 65 (2002), 3, pp. 317-359; Paolo Comanducci, «Constitucionalización y neoconstitucionalismo», in P. Comanducci, M. Angeles Ahumada, D. Gonzales Lagier, Positivismo jurídico y neoconstitutionalismo, Madrid, Fundación coloquio jurídico europeo, 2009, pp. 85-121.

[169]  M. Morjé Howard, The Politics of Citizenship in Europe, Cambridge University Press, Cambridge 2009, p. 113; S. Giubboni, Social Rights and Market Freedom in the European Constitution: A Labour Law Perspective, Cambridge University Press, Cambridge 2007; cfr. J.P. Olsen, The Many Faces of Europeanisation, «Journal of Common Market Studies», 40, 2002, pp. 921-52; C.M. Radaelli, Europeanisation: Solution or Problem?, «European Integration online Papers», 16, 8, 2004; G. Delanty, C. Rumford, (eds.), Rethinking Europe: Social Theory and the Implications of Europeanisation, London, Routledge, 2005; J. Gerhards, Free to Move? The Acceptance of Free Movement of Labour and Nondiscrimination in Europe, «European Societies», 10, 1, 2008, p. 135; P. Mindus, Theorizing Conflicts and Politicisation in the EU, in R. Nickel, A. Greppi, (eds.), The Changing Role of Law in the Age of Supra-and Transnational Governance, Nomos, Baden-Baden 2010; E. Recchi, Migrants and Europeans: An Outline of the Free Movement of Persons in the EU, «Aalborg, Academy of Migration Studies, Working Paper Series», 38, 2005; E. Recchi, From Migrants to Movers: Citizenship and Mobility in the European Union, in M.P. Smith, A. Favell, (eds.), The Human Face of Global Mobility, London, Transaction Books, 2006.

[170]  B.S. Turner, Citizenship Studies: A General Theory, «Citizenship Studies», 1, 1, 1997, p. 5; S.M. Lipset, Introduction, in T.H. Marshall, Class, Citizenship, and Social Development, Doubleday, New York 1964, p. XVII.

[171]  N. Bobbio, Fundamento y futuro de la democracia, Conferencia dada el 29 de Abril de 1986 en Aula Magna Escuela de Derecho Universidad de Valparaíso; Luigi Ferrajoli, Michelangelo Bovero, Teoría de la democracia. Dos prospectivas compradas, Instituto Electoral Federal de México, 2001; Margaret Canovan, Taking. Politics to the People: Populism as an Ideology of Democracy, in Y. Meny, Y. Surel (eds.), Democracies and the Populist Challenge, London: Palgrave 2002, pp. 25-44; Mark Bevir, Democratic Governance, Princeton: Princeton University Press, 2010, chapter V, pp. 95-121; Patricia Mindus, Europeanization of Citizenship within the EU: Perspectives and Ambiguities, Jean Monnet Series of Working Paper, 2008.

[172]  All references to John Dewey’s works are to the multivolume series comprising The Early Works, 1882–1898, The Middle Works, 1899–1924, and The Later Works, 1925–1953, edited by Joe Ann Boydston and published by Southern Illinois University Press.

[173]  1) As for “General Theories of Justice”: John Rawls, “Justice as Fairness”, in Philosophical Review Vol. LXVII, 1958; Michael Sandel, Justice. What’s the Right Thing to do? Farrar, Straus and Giroux, 2009. Chapter 6 and 7, pp. 160-206 and 311-313. (Italian translation: Giustizia. Il nostro bene comune, Feltrinelli, Milano, 2010, trans. by Tania Gargiulo).

     2) As for “Justice and Human Rights”: Amartya Sen, “Elements of a Theory of Human Rights”, Philosophy and public affairs 32, No. 4, 2004, pp. 315-356; Steven Lukes “Five fables on human rights”, in Stephen Shute and Susan Hurley (eds.), On Human Rights, Basic Books, New York, 1993. (Spanish translation: “Cinco fábulas sobre los derechos humanos”, en Stephen Shute and Susan Hurley (eds.), De los derechos humanos, Trotta, Madrid, pp. 29-46).

     3) As for “Justice and Identity”: C. Taylor, “Cross-purposes: the Liberal-Communitarian debate”, in N. Rosenblum (ed.), Liberalism and the Moral Life, Harvard University Press, Cambridge 1989, pp. 159-182; tran. It. “Il dibattito fra sordi di liberali e comunitaristi”, in A. Ferrara (ed.), Comunitarismo e liberalismo, Editori Riuniti, Roma 1992, pp. 137-167; C. Taylor, Two theories of modernity, Hastings Centre Report 25 (1995), n. 2, pp. 24- 33; C. Taylor, Hegel, Cambridge University Press, Cambridge 1975; Hegel and Modern Society, Cambridge University Press, Cambridge 1979; trans. It. Hegel e la società moderna, Il Mulino, Bologna 1984; C. Taylor, Sources of the Self. The Making of the Modern Identity, Harvard University Press, Cambridge 1989; tran. It. by R. Rini, Radici dell’io. La costruzione dell’identità moderna, Feltrinelli, Milano 1994; C. Taylor, ‘Atomism’, in Id., Philosophical Papers. Vol. II: Philosophy and the Human Sciences, Cambridge University Press, Cambridge 1985, pp. 187-210; C. Taylor, The Malaise of Modernity, Canadian Broadcasting Corporation, 1991, (The Ethics of Authenticity, Harvard University Press, Cambridge 1991; tran. It. by G. Ferrara degli Uberti, Il disagio della modernità, Laterza, Roma – Bari 1999); C. Taylor, ‘The diversity of goods’, in Sen A., Williams B. (eds.), Utilitarianism and Beyond, Cambridge University Press, Cambridge 1982; trans. It. by A. Besussi, Utilitarismo e oltre, Il Saggiatore, Milano 1984, pp. 165-185; C. Taylor, ‘The politics of recognition’, in Id., Multiculturalism and the Politics of Recognition, Princeton University Press, Princeton 1992; trans. It. by G. Rigamonti, Multiculturalismo. La politica del riconoscimento, Anabasi, Milano 1993, pp. 41-103; C. Taylor, The Malaise of Modernity, Canadian Broadcasting Corporation, 1991, The Ethics of Authenticity, Harvard University Press, Cambridge 1991; trans. It. by G. Ferrara degli Uberti, Il disagio della modernità, Laterza, Roma – Bari 1999; T. Nagel, The Possibility of Altruism, Clarendon Press, Oxford 1970; trans. It. di R. Scognamiglio, La possibilità dell’altruismo, Il Mulino, Bologna 1994; A.C. MacIntyre, After Virtue, University of Notre Dame Press, Notre Dame 1981; trans. It. by P. Capriolo, Dopo la virtù. Saggio di teoria morale, Feltrinelli, Milano 1988, pp. 69-81; M. Sandel, Liberalism and the Limits of Justice, Cambridge University Press, Cambridge 1982; trans. It. by S. D’Amico, Il liberalismo e i limiti della giustizia, Feltrinelli, Milano 1994; J. Rawls, A Theory of Justice, Harvard University Press, Cambridge 1971; trans. It. by U. Santini, Una teoria della giustizia, Feltrinelli, Milano 1982; R. Nozick, Anarchy, State and Utopia, Basic Books, New York 1974; trans. It. by G. Ferranti, Anarchia, Stato, Utopia. I fondamenti dello Stato minimo, Il Saggiatore, Milano 1999; M.N. Rothbard, The Ethics of Liberty, Humanities Press, Atlantic Highlands 1982; trans. It. L’etica della libertà, Liberilibri, Macerata 1996; J. L. Mackie, Ethics. Inventing Right and Wrong, Penguin, Harmondsworth 1977; trans. It. by B. De Mori, Etica: inventare il giusto e l’ingiusto, Giappichelli, Torino 2001; J. McDowell, Mind, Value and Reality, Harvard University Press, Cambrdige 1998; D. Wiggins, Needs, Values, Truth: Essays in the Philosophy of Value, Blackwell, Oxford 1987, 1997, 3 ed.; J. Dancy, Moral Reasons, Balckwell, Oxford 1993; J.J. Rousseau, Les Rêveries du promeneur solitaire, ‘Cinquième promenade’, in Oeuvres complètes, Gallimard, Paris 1959, 1, 1047; J. Habermas, “Anerkennungskämpfe im demokratischen Rechtstaat”, in C. Taylor, Multikulturalismus und die Politik der Anerkennung, Suhrkamp, Frankfurt a. M. 1993, pp. 147-196; trans. It. by L. Ceppa in Ragion pratica II (1994), pp. 132-165, p. 151; T. Nagel, The Possibility of Altruism, Clarendon Press, Oxford 1970; trans. It. by R. Scognamiglio, La possibilità dell’altruismo, Il Mulino, Bologna 1994; Jeremy Waldron Minority cultures and the cosmopolitan alternative, in Will Kymlicka (ed.) The rights of Minority Cultures, Oxford University Press 1995, pp. 93-119.

[174]  I spoke about political participation. But, on the contrary, as for the debate between authority/anarchism, or civil disobedience/fidelity to law, cfr.  Plato, Crito, 50a-54e1; Robert Paul Wolff, In Defense of Anarchism (1970), Harper & Row Publishers, New York, Hagerstown, San Francisco, London, 1976, chapter 1, pp. 3-19;  Joseph Raz, Legitimate Authority, in Id., The Authority of Law, Clarendon press, Oxford, 1979, pp. 3-27; J. Rawls, The Justification of Civil Disobedience, in Hugo Adam Bedau (ed. by), Civil Disobedience: Theory and Practice, Pegasus, Indianapolis-New York, 1969, pp. 239-255;  Ronald Dworkin, Civil Disobedience, in Id., Taking Rights Seriously, Harvard University Press, Cambridge, Massachussetts, 1978, pp. 206-222; Martin Luther King Jr., Letter from Birmingham City Jail, in Hugo Adam Bedau (ed. by), Civil Disobedience: Theory and Practice, Pegasus, Indianapolis-New York, 1969, pp. 72-89; Louis Waldman, Civil Rights-Yes: Civil Disobedience-No (A Reply to Dr. Martin Luther King), in Hugo Adam Bedau (ed. by), Civil Disobedience: Theory and Practice, Pegasus, Indianapolis-New York, 1969, pp. 106-115; Herbert J. Storing, The Case Against Civil Disobedience, in Hugo Adam Bedau (ed. by), Civil Disobedience in Focus, Routledge, London and New York, 1991, pp. 85-102; Arthur Kaufmann, National Socialism and German Jurisprudence from 1933 to 1945, in “Cardozo Law Review”, 9, 1987-1988, pp. 1629-1649; H. Arendt, Eichmann in Jerusalem. A Report on the Banality of Evil (Revised and Enlarged Edition, Viking, New York, 1964, Chapter 8.

[175]  Although some efforts have been made for greater harmonization in of nationality laws, we are still facing a multifaceted and diverse Europe today: H. Schade, The Draft European Convention on Nationality, “Austrian Journal of Public and International Law “, 49, 2, 1995, pp. 99-103; G. R. de Groot, Zum Verhältnis der zu Unionsbürgerschaft den Staatsangehörigkeiten in der Europäischen Union, in P.C. Müller-Graf (ed.), Europäisches Integrationsrecht in Querschnitt, Baden-Baden, Nomos 2002, pp. 67-86; S. Carrera, Legal Migration Law and Policy Trends in A Selection of EU Member States. Briefing Paper, Directorate-General Internal policies. Policy Department C-Citizens’ Rights and Constitutional Affairs, European Parliament, July 2006. See also B.C. Evans, Nationality Law and European integration, “European Law Review », 16, 1991, pp. 190 ss.; the topic was taken up recently by Gerard de Groot, Nationality, ad vocem, in J.M. Smits (ed)., Encyclopedia of Comparative Law, Cheltenham, Edward Elgar, 2006, pp. 476-492.

[176]         Bobbio, N.: (1968). Presente e avvenire dei diritti dell’uomo. In La comunità internazionale 23, 3-18. [English translation by A. Cameron (1996), Human Rights Now and in the Future, pp. 12-31]. In N. Bobbio, The Age of Rights. Cambridge, Polity Press. The threefold distinction of legal positivism as a) an approach to (i.e., a methodology), b) an ideology, and c) a theory of law is drawn by Bobbio, Norberto: Sul positivismo giuridico, in Rivista di filosofia, Vol. 52. (1961), 14-34. Bobbio regarded Kelsen as caught uncomfortably between a purely formal account of law and a substantive position grounded in what he called the “basic norm” underlying all law. See also The Future Of Democracy: A Defence Of The Rules Of The Game (1984, Einaudi, Torino) – to my mind, the most original of his books – State, Government And Society (1985, Einaudi, Torino); The Age Of Rights (1990, Giappichelli, Torino), and  The Problem Of War And The Roads To Peace (1979, Giappichelli, Torino).

[177]  Cfr. M.J. Smith, Ecologism: Towards Ecological Citizenship, University of Minnesota Press, Minneapolis, 1998; D.W. Curtin, Chinnagounder’s Challenge: The Question of Ecological Citizenship, Indiana University Press, Bloomington (Ind.) 1999; H. Newby, Citizenship in a Green World: Global Commons and Human Stewardship, in M. Bulmer, A.M. Rees, (eds.), Citizenship Today, cit., pp. 209 ss.

     A large part of the debate on ecological citizenship today has shifted to issues related to
global justice and the forced migration of climate refugees. For the state, please refer to studies of
IOM: cfr. F. Laczko, C. Aghazarm, (eds.), Migration, Environment and Climate Change: Assessing the evidence, <http://publications.iom.int/bookstore/free/migration_and_environment.pdf>.

     As for political theory profiles, see J. Ödalen, Climate refugees: Normative Problems and Institutional Solutions, in Y. Hagiwara (ed.), Democracy and Governance for Civil Society, Fukosha Publishing, Tokyo 2010, pp. 123-142.

[178]  G. Grisez, ‘The first principle of practical reason: a commentary on the Summa Theologiae I-II, question 94, article 2’, Natural Law Forum 10 (1965), pp. 168-201; G. Grisez, J. Boyle, J. Finnis, ‘Practical principles, moral truth, and ultimate ends’, American Journal of Jurisprudence 32 (1987), pp. 99-151; J. Finnis, Natural Law and Natural Rights, Oxford University Press, Oxford 1980, 19927; trans. It. by F. Di Blasi, Legge naturale e diritti naturali, Giappichelli, Torino 1996.

[179]  See, in alphabetic order: Barry, Brian Theories of Justice, University of California Press, 1989 (Spanish translation: Teorías de la justicia, Gedisa, Barcelona 1995, trans. by Cecilia Hidalgo); Campbell, Tom Justice, Palgrave, 1988-2001 (Spanish translation: La Justicia. Los principales debates contemporáneos, Gedisa, Barcelona 2002, trans. by Silvina Alvarez); Gargarella, Roberto Las teorías de la justicia después de Rawls. Un breve manual de filosofía política, Paidós, Buenos Aires, 1999; Hierro, Liborio L. “El concepto de justicia y la teoría de los derechos” en Elias Dias y José Luis Colomer (eds.) Estado, justicia, derechos, Alianza, Madrid 2002, pp. 11-73; Kelsen, Hans, What is justice, University of California Press, Berkeley, California 1971). (Spanish translation: ¿Que es justicia? en Hans Kelsen ¿Qué es justicia?, Planeta-Agostini, Barcelona 1993, trans. by Albert Calsamiglia, pp. 35-63); Kymlicka, Will, Contemporary political philosophy. An introduction, Oxford University Press 2002, Second edition; Sen, Amartya The idea of justice, Penguin Press, 2009 (La idea de la justicia, Taurus, Madrid 2010, translation to spanish by Hernando Valencia Villa);  Van Parijs, Philippe ¿Qué es una sociedad justa? Introducción a la práctica de la filosofía política, Ariel, Barcelona 1993, translation to spanish by J. A. Bignozzi; Veca, Salvatore La filosofia politica, Laterza, Bari 2005, Fourth edition.; Walzer, Michel The spheres of justice. A defense of pluralism and equality, Basic Books, New York 1993 (Las esferas de la justicia. Una defensa del pluralism y la igualdad. Fondo de cultura económica, México 1993, translation to spanish by Heriberto Rubio).

[180]  A.B. Seligman, The Idea of Civil Society, Princeton University Press, Princeton (New Jersey) 1992, p. 117; M. Bulmer, A.M. Rees, Citizenship in the Twenty-first Century, in M. Bulmer, A.M. Rees, (ed.), Citizenship Today The Contemporary Relevance of T.H. Marshall, UCL Press, London 1996, p. 269; cfr. J. Keane (ed.), Rediscovering Civil Society, Verso, London 1987; Id. (ed.), Civil Society and the State, Verso, London 1988; D. Held, Between State and Civil Society, cit., pp. 19 sg.; R. Dahrendorf, Citizenship and Social Class; trad. it. in Id. Il conflitto sociale nella modernità, cit., pp. 32 sg.; B. Van Steenbergen (ed.), The Condition of Citizenship, cit., in particolare pp. 6 sg.; J. Cohen, Re-thinking Social Movements «Berkeley Journal of Sociology», XXVII, 1983, pp. 97-113; J. Cohen, A. Arato, Civil Society and Social Theory, MIT Press, Cambridge (Mass.) 1992; B.S. Turner, Out-line of a Theory of Citizenship, «Sociology», XXIV, 2, 1990, pp. 189-214; Id. (ed.), Citizenship and Social Theory, cit., in particular pp. 139 ss.; K. Tester, Civil Society, Routledge, London 1992; J.H. Hall, Civil Society: Theory, History, Comparisons, Polity Press, Cambridge 1995; K. Kumar, Civil Society: An Inquiry into the Usefulness of an Historical Term, «British Journal of Sociology», XLIV, 3, 1993, pp. 375-95; M. Muetzelfeldt, G. Smith, Civil Society and Global Governance: The Possibilities for Global Citizenship, «Citizenship Studies», VI, 1, 2002, pp. 55-75; M. Edwards, Civil Society, Polity Press, London 20092;  M. Edwards (ed.), The Oxford Handbook of Civil Society, Oxford University Press, Oxford 2011; P. Hirst, From Statism to Pluralism: Democracy, Civil Society and Global Politics, Routledge, London 2012.

[181]  B.S. Turner, Contemporary Problems in the Theory of Citizenship, cit., p. 4: his intention in developing this particular perspective on citizenship is to avoid this opposition between the two notions of civil society and citizenship. He has already suggested one way in which this hiatus could be avoided, namely by defining citizenship as a set of social practices which define the nature of social membership.

Humanity and Human Rights: The Contours of International Law

There are compelling reasons for being content in living at a time when the basic requirements of humanity and human rights have been recognized by the ratification of most of the international human rights and international humanitarian law instruments. Clearly, the existence of disparity between the recognized norms and the actual behavior of states cannot be denied. There are also states that are not willing to subscribe to what is widely accepted or political actors that have interests in reversing the gains made this far. Despite all this, no one can doubt that a mile-stone has been reached in recognizing the values of humanity and human rights. The credit for this goes to those that have struggled for these goals, including through their writings and struggles and the conducive, post-World War II political atmosphere which stimulated the inter-state agreements.

Giving credit to the role played by the past thinkers does not necessarily mean that there is no longer any need for intellectual debate relating to this matter. If the requirements of human rights and humanity are to be critically appraised, it will be necessary to examine closely the thoughts of scholars, past and present, on this subject. Then and only then will we be able to fully recognize the inter-play between humanity and human rights as perceived in the past and present and to appreciate the direction international law has taken or should take.

This article sheds light on the path which international law took in responding to the requirement of human rights and humanitarianism (as dictated by humanity). This is done by reflecting on international human rights law and international humanitarian law. If these laws were developed to protect the dignity and worth of the human being, as is claimed, why make a distinction between them? Are there areas of convergence between them?  Before attempting to respond to these and other questions it will be necessary to clarify not only what is understood by human rights and humanity, but also who the human being is in the first place.

Human being, humanity and human rights – conceptual issues

Human being: Dictionaries define ‘human being’ typically as a member of the Homo sapiens species that is “distinguished from other animals by superior mental development, power of articulate speech and upright stance.”[1] Since there are species in the animal kingdom with a capacity to reason and communicate, it important to look for other distinguishing attributes which merit protecting our unique qualities, values, rights, freedoms. Are we social? Are dignity, empathy, sensibilities and sympathy for our fellow beings part of our nature? If not, what do people mean when they say ‘this person lacks humanity’? While there is no problem in identifying the human being by the looks, appreciating our nature has always been a matter of controversy.

Thomas Hobbes, for instance, believed that the human being was not social, e.g., like ants or bees, or a peaceful and compassionate being. Rather, he took him/her as individualistic, competitive, envious, hateful and belligerent. The mere fact that human beings were equipped with the power of reasoning led Hobbes into believing that this quality leads them to think that they are wiser than others and to use it for manipulation and hurting one another. According to him, this nature and inclinations is responsible for the perpetual state of conflict in which we find ourselves in, a situation which Hobbes described as ‘war of all against all’. This was why he called for the surrendering of ‘natural rights’ in favor of tyrannical rule based on social contract.[2]

Immanuel Kant dismissed this negative description of the human nature since it ignored our obvious social nature and our many positive inclinations and attributes which enabled us to evolve by forming stable communities. As Kant saw it, the human being is a rational and moral being, one who complies with duties, whether based on the needs of complying with external laws or self-constraint which limits the freedoms of action using “practical reason, (i.e., according to humanity in his own person)”.[3] This uniqueness entitles the human being to exercise their ‘natural’ rights and freedoms based on the recognition of “the dignity of humanity in every other man.”[4]

If humans are a self-consumed evil species constantly at war with one another, as Hobbes claimed, then humanity cannot exist or cannot be anything more than a mere collection of hostile human beings inhabiting the world. If, on the other hand, we are rational moral beings, as Kant believed, then our shared rationality, morality and sense of solidarity should make us feel as ‘one’, very much like members of ‘a family’.

Humanity is defined in Dictionary.com in at least three different ways: i. “all human beings collectively; the human race; humankind”, ii. “(T)he quality or condition of being human; human nature” and, iii. “(T)he quality of being humane; kindness; benevolence.”[5] The first definition avoids specifying the essential elements in humanity by merely considering it as the equivalent to human beings, collectively. We see this approach taken in some international instruments, e.g., in article 1 of the 1966 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, which considers outer space as “the province of all mankind”, or article 1 of UN General Assembly resolution 43/53 of 1988 which regards climate change as “a common concern of mankind”. The second definition also side-tracks what humanity is by merely pointing out the root word it came from – i.e., from human.

More specific and giving is the third definition which refers to kindness, benevolence, and being humane as examples of the virtues of humanity. David Hume elaborates further by adding more virtues, including “generosity, gratitude, moderation, tenderness, friendship”.[6] According to him, these “are not only the same in all human creatures, and produce the same approbation or censure; but they also comprehend all human creatures”.[7] Why the receivers get such gestures is not hard to understand, since this is explainable by the simple fact that there must have been a need for it, irrespective of whether that need has arisen from situations or incidents caused by the forces of nature, by others, by accident or by the fault of the receivers. More interesting is what motivates or compels the givers to share the pains or problems of the receivers in that predicament. It makes one wonder whether one can feel or suffer from the conditions or problems faced by others, and if so why and how? Michel Ager answered this question in the following manner:

“Like the god Janus, humanity has a double-sided identity, which, however, does not express any alterity (no “other” is allowed in this bounded and total representation). Its double is only the reflection of a wounded, suffering, or dying humanity. It becomes the “absolute victim,” who is nothing else or other than absolute and essentialized humanity when it is suffering. This figure of humanity, both unique and split—absolute humanity vs. absolute victim—dominates contemporary thought: the representation of a world generally treated as a totality, with no representation of difference, is the foundation of our present as a humanitarian age, a world of nameless victims whose identities do not differ from the common humanity…” [8]

To say that sensibilities, generosity, gratitude, empathy and tenderness are examples of the virtues of humanity, does not necessarily mean that human beings cannot display the opposite characteristics such as to be evil, cruel, insensitive and inhuman. If this is the case, how can we still say that there is humanity? The defendants of humanity seek to resolve this dilemma by underscoring the point that who we are by nature should not be confused by how we sometimes behave in defiance of our nature. Christian theologians, for instance, explain this puzzle by reference to the Bible (Genesis 1:26-28) which considers us as created in the image of God, who is merciful, considerate and good. However, in reality we choose to commit sins (or because of the sins which we inherit) and behave in evil ways. Charles Sherlock explained this in his book on The Doctrine of Humanity: Contours of Christian Theology in this way:

“Whatever theory of the transmission of sin and its origin we hold, the reality is that everyone who reads this book is a sinner. Each of us needs constantly to turn to Christ, admit our need for forgiveness and healing, renounce sin and evil, and so live gladly the life which the Holy Spirit brings in us. Only in that way can the old humanity be killed off, and the fruits of the Spirit flourish (cf. Col. 3:1-17). Our prime concern is not with the transmission of sin, but (with) the humanity in Christ.”[9]

Most Liberals, libertarians and primordialists are at odds with the emphasis that is placed on the selective positive inclinations of human beings used to validate or glamorize the existence of humanity. Libertarians, such as Ayn Rand, have no problem with selfishness. What they regard strange is selflessness, altruism and sacrificing for others. ”Altruism holds death as its ultimate goal and standard of value”, wrote Rand in her publication entitled The Virtue of Selfishness, “and it is logical that renunciation, resignation, self-denial, and every other form of suffering, including self-destruction, are the virtues it advocates.”[10] According to her, “if civilization is to survive, it is the altruistic morality that men have to reject.”[11]

Richard Rorty, a liberal American professor, questioned the arguments used by Immanuel Kant in defense of humanity and human rights based on morality and rationality because people choose frequently to act in irrational and immoral ways to protect their interests. He provides numerous examples of this, such as how the Nazis tried to exterminate Jews in the 1930s, how Moslems were treated by Serbs during the Balkan wars, how most men see women and why “(F)or most white people, until very recently, most black people did not so count”[12] According to Rorty, these are all examples that show that people do not always want to see others, outside their own groups, as humans, let alone to feel their pains or share their sufferings. This was not always because of ignorance or misunderstanding but the determination to treat them in that way or as sub-human. As he put it:

“Resentful young Nazi toughs ere quite aware that many Jews were clever and learned, but this only added to the pleasure they took in beating such Jews. … For everything turns on who counts as a fellow human being, as a rational agent in the only relevant sense – the sense in which rational agency is synonymous with membership in our moral community.[13]

Primordialists reason in similar ways in dismissing the existence of humanity, as a concept that embraces all human beings, by attaching heavy weight to membership in ethnicity. As they see it, members of ethnic groups reject those outside their own groups, because of competition, fear of the unknown or past conflicts.[14] Loyalty to one’s own group itself hinders the development of broader feelings of solidarity, sensibilities and generosity which are generated by humanity. That we are social is not, strictly speaking, in doubt, since one cannot imagine ethnic conflict without ethnic bonds and loyalty. If this is the case, one can wonder why members of one ethnic group migrate to places inhabited by other ethnic groups or to foreign countries. Why do families from one ethnic group adopt children from other groups? Why do millions of students study abroad or tourists spend so much money to see and enjoy alien cultural places?

Liberals and libertarians are more consistent in their approach when belittling humanity because for them groups do not exist. What matters for them is the individual. Our social attributes and interests are neglected for the sake of maximizing individual rights and freedoms. But the question remains that the individual cannot develop intellectually, emotionally and socially outside social interaction and enrichment. How else did we end up using a common language, culture or professing a common religion? If groups do not exist, why do states invoke ‘public’ morality or security to restrict individual rights or freedoms, and why are families given the power to choose the schools for their children? Why is solitary confinement used as a means of punishment? Why are we attracted to foreign cultures and values? Simply walking on a street in a foreign country and seeing a stranger fall, bleed or cry can arouse feelings within us of sympathy or concern as if our own life was endangered. What one stranger does on the street or TV can make us laugh, weep, stimulated or depressed simply because we are social.

If we were not social, we would not see so many people and organizations dedicating their time, energy, resources and services to help ‘others’, out of love, compassion and altruistic motives. For most of these people and humanitarian groups even the age, gender, race, ethnicity, nationality or ideological orientation of the receivers do not matter. Nor do they care whether the cause they are responding to is natural calamities (earthquakes, floods, drought, hurricanes, etc.), or man-made problems (conflicts, internal displacement or refugee exodus) or the fault of the receivers. The generosity is extended out of “a vision of humanity as unique”.[15]

The presence of special bonds between human beings is now recognized in important international instruments and by international institutions. The Rome Statute of the International Criminal Court, for instance, justified the needs for the establishment of this Court by underscoring the point “that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and … (the presence of fear) that this delicate mosaic may be shattered at any time”.[16] UNESCO justifies the protection of the ‘common heritage of mankind’ by designating historically significant cultural heritages (e.g., ancient monuments, pyramids, ruins and architectural complexes) as  belonging to all of us although we have not seen them or will ever see them or have a clear knowledge of  how we were shaped by them.

Rights. When used as an adjective the word right means correct, just, righteous, true, fair, etc.), If it is used as a noun, it can describe entitlement, privilege, title, guarantee, power, autonomy, freedom or benefits. The right-holder can be a human being, a legal person (corporation, labour union, religious or cultural entity, etc.), a political ruler (a king or a president), an institution (e.g., a parliament or a supreme court), or even animals. Human rights are only some of the rights that are recognized and enforced in the political world. Some of these rights may even be inhumane or inhuman. There were legal rights that were enforced for centuries, permitting people to purchase, sell, inherit and exploit fellow beings as slaves. Even today, we find countries who use laws entitling a grown-up man to marry a child or several minor girls, or to benefit from the misery of desperate prostitutes or trafficked migrant workers. However, morally bankrupt such legal rights might be, they remain to be valid in the countries that recognize them by law to regulate social relations, order and stability

Human rights simply state that humans have rights as if the source of the right is “humanity, human nature, being a person or human being’.[17] The discourse on human rights has complex, controversial and ideologically charged sides.[18] Why people have aspired or struggled for rights and freedoms in the past or present is not difficult to understand, since this is linked to what has prevented them from enjoying the desired rights and freedoms: e.g., to end oppression and discrimination. People do not struggle for no apparent reason. This is why “human rights do not define a unitary, universal human condition but designate rather a field of heterogeneous practices that help to constitute the array of subject moments or subject effects that comprise citizens and sovereigns.”[19] It is no wonder, therefore, that the narratives of human rights have changed over the years and why we find them framed differently during the French Revolution, the American Civil War, the post-World War II or in the Cold War periods.[20] Whichever way rights might have been framed in the minds of scholars or those who struggled for their rights, in the real political world they have always been political. It is no wonder, therefore, that even after the popular political struggles have emerged victorious, what was achieved were sometimes later denied or diluted by subsequent political actors. A case in point are the British Magna Carta, the U.S. Bill of Rights and the French Declaration of the Rights of Man and the Citizen.

In 1215, the rebellious English barons secured from their autocratic, King John, concessions acknowledging rights for the ’free men’ of his realm. These included the right not to be arbitrarily “seized or stripped of his rights or possessions, or outlawed or exiled” and not to be denied justice (clause 63). These rights and protections were not extended to the majority of “unfree peasants known as ‘villains’, who could seek justice only through the courts of their own lords.”[21] The pledges that were given were disregarded by subsequent kings who repealed most of the clauses contained in this Great Charter, making the struggle for rights open-ended.

The 1776 American Revolution was justified to put an end to the oppressive and tyrannical rule of the British King and to affirm the self-evident truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” and that governments should derive “their just powers from the consent of the governed.”[22] Shortly thereafter a Bill of Rights was adopted in 1791 to put this vision into practice, by guaranteeing the rights to the freedom of speech, assembly, religion, privacy, fair and speedy trial, to petition the government and the protection from ‘cruel and unusual punishment’. However, these ‘unalienable’, God-given rights were not interpreted as being applicable, at the time, to women or blacks or the indigenous populations. They were politically framed rights that were secured for the white men, whose rights to privacy included owning blacks – for nearly one more century. Both George Washington and Thomas Jefferson owned slaves. Even after the institution of slavery was legally abolished in 1865, blacks (and American Indians) continued to be excluded from political participation until their uprising in the 1960s.

The much-celebrated 1789 French Declaration of the Rights of Man and of the Citizen too was really not intended to make all human beings the holders of full rights, although its title suggests that non-citizens also have right. As Susan Maslan noted:

“The inclusion of man, as opposed to, say, Frenchman, as a subject of rights within the Declaration is what distinguishes it so radically from the American Bill of Rights, a document that makes no claim to apply beyond the confines of its national authority. It is a wonderful sort of irony, one that demands serious reflection, that the invention of the Rights of Man played and continues to play such a predominant role in the creation and perpetuation of French national identity.”[23]

This Declaration affirms the principle of equality and the “natural and imprescriptible rights of man”. But the beneficiary remained to be the politically situated French man.[24] French women (the ‘passive citizens’) continued to be excluded from political participation, and the problem of slavery in the French colonies was left out. This was why the betrayed slaves started to rebel. French women too protested, which was why the Declaration of the Rights of Women and the Female Citizens which was published in 1791, and still fell on deaf ears.

The international regime of human rights considers human rights as being applicable to all human beings without distinction. As stated by the Office of the United Nations High Commissioner for Human Rights:

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status.… Universal human rights are often expressed and guaranteed by law, in the forms of treaties…and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.[25]

This fits Donnelly’s definition which makes human rights applicable to everyone ”simply because one is a human being.”[26] It makes the language of human rights, if not human rights themselves, (essentially)… universal” because the members of the international community claim to respect its core value: i.e., human dignity.[27]

The contours of international humanitarian law: evolution and features

Humanitarian values and rules were developed out of the awareness of our social nature and the determination to protect values of broader concerns based on our sensibility and feeling of solidarity. There are two movements of interest to mention, both aiming at alleviating human suffering, broadly speaking. They are the anti-slavery movement and the campaigns used to mobilize support for ending the cruel manner of conducting wars.

In her illuminating essay entitled “Humanity without Feathers”, Lynn Festa, highlights the background of the movement which led to the abolishment of slavery in Britain. The force behind this movement, she notes, was the sympathy and sensibility of people in England had to the sufferings of black slaves in the distant English colonies. “Inasmuch as sympathy involves experiencing another’s feelings (that is, feelings that are by definition not one’s own),” she wrote, “it breaks down the division of self and other”.[28] This scenario shows how the ’free’ white European come to the rescue of the enslaved African at the cost of the economic interests of the English slave master. The pains which the abolitionist felt appears to be personalized in that the black victims were ”marginalized by the fact that it is not the slave but the personification of ’humanity’ that bleeds and longs to vindicate her rights”.[29] Obviously, sentiments were not the only ’playbook’ used by the abolitionist, the writer notes, as ”calls for sympathetic feeling— then as now—were tempered and supplemented by appeals to reason, to policy, to interest, to principle, to faith.”[30] In his celebrated publication entitled The Social Contact Rousseau describes the ironies of slavery by noting that “(M)an is born free, and everywhere he is in chains. One man thinks himself the master of others, but remains more of a slave than they are.”[31]

The other example mentioned above to explain the movement defending humanity is that which led to the prohibition of the savage ways of conducting warfare. Some of the champions of this cause were not soldiers or people who lost loved ones in battle fields or those whose personal safety was directly or indirectly affected by wars. As in the case of the anti-slavery activists, their campaign was to rescue the victims whom they did not know personally and wherever they were. There was no question that those who were behind the development of rules prohibiting these kinds of cruelties shared the agonies of the victims as if they themselves had been victimized.

Perhaps the most famous scholar who laid the foundation for the emergence of humanitarian law was Hugo Grotius (1583–1645). Like other writers before him (such as Francisco de Vitoria and Alberico Gentili), Grotius was concerned about the dignity of human beings and about how wars were conducted. He was especially puzzled and annoyed by why “men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes”.[32] According to him, the kinds of cruel and inhumane behaviour that revealed itself during his time, when the Thirty-Years religious wars were raging, were irreconcilable with Natural Law. He took this law as valid because it was based on morality (rationality). It was natural because it was universally applicable to all human beings. His writings identified elaborate rules of conducts that should be followed by all states at all times, in connection with conflicts.

The efforts made by Grotius to mobilize wider support through his writings and travelling to different countries, inspired many others, like him, to be engaged in humanitarian work. Among these was Henry Dunant, who was awarded the first Nobel Prize, and the establishment of The Red Cross in 1863. In 1899 and 1907 two important international conferences were held in The Hague (Holland) on the conduct of warfare. These paved the way for the conclusion of the first and second conventions. The horrors of the First World War led states to appreciate the importance of broadening the scope of the existing humanitarian instruments, by adding the 1925 Geneva Protocol to these Hague prohibiting the use of certain weapons.

The establishment of the United Nations in 1945 speeded up the legal evolution of international humanitarian law. The UN Charter expressed concern over the “scourge of war, which twice in our lifetime has brought untold sorrow to mankind” (preamble para. 1), and considered the achievement of “international co-operation in solving international problems of “… humanitarian character, and … respect for human rights” (art. 1(3) as one of the purposes of this organization. The pursuit of these goals and the mandates given to its General Assembly to promote “the progressive development of international law and its codification” (art. 13) gradually led to the adoption and ratification of numerous conventions transforming humanitarian law qualitatively. Examples of these include the 1948 convention on the prevention and punishment of the crime of genocide, the four Geneva Conventions of 1949, the 1951 Refugee Convention, the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, the 1968 treaty on non-proliferation of nuclear weapons, the 1972 Biological Weapons Convention, the 1980 Convention on the use of certain weapons causing excessive injuries, the 1993 Chemical Weapons Convention, the 1997 Ottawa Convention on anti-personnel mines, and the 2008 convention on cluster munitions. The effort to galvanize support for banning weapons of mass destruction (by using biological, chemical, and nuclear weapons) deserves special attention. The refusal of states to abandon such weapons and the efforts which they continued to make to produce and stockpile these weapons continue to endanger mankind as a whole. In this sense one can say that humanity has never been threatened as it is now.

This aside, one can say that many of the international humanitarian law instruments that have been ratified have now clarified practices which should not be tolerated during conflicts. Some of them, e.g., the genocide convention, prohibit the commission of genocide even in times of peace, a prohibition which includes complicity, attempts and conspiracy to commit this crime. The refugee convention encourages states to protect those who face a fundamental fear of persecution. Other humanitarian rules mentioned in The Hague and the Geneva Conventions outlawed the use of weapons such as poison, chemicals and expanding bullets. Abusing prisoners, hostage-taking, rape, forced relocation and the destruction of civilian properties such as pillaging, destroying hospitals and heritage were also prohibited by the same conventions.

The establishment of the International Criminal Court represents another mile-stone in the defense of humanity, since it created a forum for prosecuting the violators of international humanitarian law. Prior to this, the prosecution of these kinds of international crimes was left to the UN. This was why the UN had to create special tribunals to prosecute those who committed international crimes during the conflicts in the former Yugoslavia, Rwanda, etc. By the end of last year, 124 states had ratified the statute of this Court, making that institution a widely recognized body for monitoring respect for international humanitarian law.

The preambles of the statute of the International Criminal Court recognize “that all peoples are united by common bonds, their cultures pieced together in a shared heritage”, and express the fear that exists “that this delicate mosaic may be shattered at any time.” It recalls, further, that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and that henceforth “the most serious crimes of concern to the international community as a whole must not go unpunished”. This instrument defines and elaborates the kinds of acts or conducts that should not be tolerated, namely genocide, aggression, war crimes and crimes against humanity. Article 7 specifies the recognized crimes against humanity’ if they are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. They include extermination, enslavement, attacks directed in an organized way against any civilian population, deportation, torture, forced pregnancy, collective persecution, enforced disappearance. In short, this statue has codified the pre-existing rules of international human rights law by crystallizing what were vaguely formulated before.

International human rights law: legal evolution and features

Human rights emerged as universally applicable legal rights thanks to the efforts made by civil societies, humanitarian organizations, political activists, progressive writers and states as a response to the gross human suffering and destruction seen during the Second World War.  In the course of mobilizing the masses to defeat the Fascist and Nazi states militarily, the galvanized masses and political actors were compelled to question the totalitarian and racist values and ideologies promoted by the aggressive powers. Thus, what started out as a military campaign for self-defence ended up in questioning the very structure and ideologies of the Aggressive Powers. If the new international organization that was to be established after the military campaign was to be legitimate and durable, it had to usher in a new world order which was sensitive to human rights.  It was, therefore, not surprising that the UN Charter had to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person” (preamble) and considered the promotion of “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” as one of its purposes, in article 1(3).

This was clearly a novel development for a world that had never had a truly universal organization, let alone one that was mandated to promote this goal. The achievement can even be perceived as revolutionary since the great majority of the member-states had poor records of respecting human rights and were not equipped with human rights sensitive laws and institutions. What pushed them in this direction was the memories of the Second World War and the determination to co-operate with the UN to achieve this goal as pledged under article 56 of the Charter.

Indeed, as it turned out, it did not prove to achieve broader international co-operation once attention was turned to developing the general standard settings when the first universal document was prepared (later known as the Universal Declaration of Human Rights). This instrument was adopted on 10 December 1948 with no opposition, though eight states abstained. A factor that explains this wider base of support could be that its provisions were broadly formulated. The obligations of states to respect the proclaimed rights and freedoms were also avoided. There was the recognition that this document was not intended to be legally binding since the UN General Assembly had no power to adopt legally binding instruments. As the last preamble of this document states, the whole point was to use it as “as a common standard of achievement for all peoples and all nations” so “that every individual and every organ of society… shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance”.

The Universal Declaration recognized that “All human beings are born free and equal in dignity and rights” (article 1) and that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion or social origin, property, birth or other status” (art. 2). It lists the different civil, political, economic, social and cultural rights that should be promoted for all without discrimination. Using this standard setting, the UN General Assembly adopted numerous other declarations and later legally binding conventions crystallizing the recognized rights and freedoms and state obligations flowing therefrom. In 1966, for instance, the two international covenants (one on civil and political rights, and another one for economic, social and cultural rights) were adopted and both entered into force in 1975. Thus, within three decades of the establishment of the UN mankind had secured two legally binding universal human rights instruments even if the number of states that ratified them was not that impressive at the time. In the years that followed, more conventions were adopted strengthening the rights of vulnerable groups such as children, women, persons with disabilities and migrant workers, and addressing problems connected with discrimination.

One of the important feature of this development is the individualization of the recognized rights and freedoms (i.e. as the rights of every person), very much as recognized in the West traditionally. The only exception was that this time around the scope of the rights was broadened to encompass political, economic, social and cultural rights and the right holders were to be all under the jurisdiction of the ratifying states. There were a few recognized rights with collective character. They include the rights of peoples to self-determination (mentioned in article 1 of the two covenants), and minority rights (mentioned in article 27 of the covenant on civil and political rights).The other feature of these international legal instruments is the manner in which the obligations of the ratifying states were elaborated and the mechanisms established for monitoring how these obligations are complied with by considering regular reports and the submission of petitions.

Except for the right to life, equality, thought and religion, and the prohibitions of torture, cruel, inhuman and degrading treatment or punishment, the great majority of the recognized human rights are subject to restriction. The prohibition that is mentioned in article 4 of the civil and political rights covenant prohibits derogation from the obligations to respect the above-mentioned rights. This suggests that some of these rights have an ‘absolute’ character. The validity of this legal presumption is in line with article 53 of the Vienna Convention on the Law of Treaties which recognizes the existence of a pre-emptory norm of general international law (Jus Cogens) – i.e. “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted”.

While the international community can take pride in having developed an international regime of human rights by adopting a long list of binding conventions, and developing the monitoring mechanisms, the actual record of states in complying with what is ratified is not that impressing. This monitoring system uses two separate paths to consider how states are complying with their human rights obligations. The treaty-based monitoring bodies examine the reports of states, and the communications that are sent by victims or state parties alleging human rights violations. The UN Charter-based monitoring bodies also consider the reports of states and those of the special rapporteurs, working groups and others. Using these and other sources of information, the UN Human Rights Council publishes its periodic reports on the human rights situation inside the member state. There are also other offices that play important roles in promoting or monitoring human rights. These include the High Commissioner for Human Rights, the High Commissioner for Refugees, UNICEF etc. Obviously, the effectiveness of these methods can be questioned and there is a long way to go when it comes to improving the system.

Humanitarian and human rights law: areas of intersection

The fact that international law has followed two distinct tracks when it comes to developing the rules related to international human rights and humanitarian law does not mean that there is no convergence between the two. Both derived their justifications from the need of protecting the dignity and worth of the human being. Both provide protection from slavery, forced labour, torture, cruel, inhuman and degrading treatment or punishment and rape. Both require humane treatment in prison. Humanitarianism looks at the broader context of what concerns us all and is guided by the values of humanity. These values arouse sympathy, empathy, love and compassion. The human rights laws are framed as the rights of the individual in the political context, rights which everyone is entitled to. Some of these rights are justiciable and even empowering (e.g., the rights to vote and take part in government).

Needless to say, the monitoring mechanisms of the international regime of human rights and international humanitarian law require improvement. There is a new doctrine which has been invoked lately to enable the international community to protect those that are exposed to serious international crimes: the international responsibility to protect (R2P). This doctrine has been invoked by the Security Council and the General Assembly (e.g., in the 2005 World Summit) in relation to serious conflicts and tragedies where states are seen to be either unable or unwilling to protect their own populations. This idea suggests that serious international crimes should be viewed as special concern to mankind as a whole. This fits the claim that there is humanity.

One can wonder, at the same time, whether the doctrine of R2P which has been invoked to ’rescue’ oppressed victims from the cruelty of their political leaders is always non-political, one that is just moved only by humanitarian considerations? If the intervention in Libya was triggered only by the urgency of saving Libyans, why abandon them now when the humanitarian situation facing them is much worse than before? If those that are intervening in the Syrian conflict are really moved by the tragic plight of Syrians in the hands of their cruel regime, and cruel it is, why are some of the states that are intervening in that conflict hesitant to even give asylum to Syrian refugees? Having said this, just because this doctrine can be abused by states does not mean that the international community should abandon it. If developed well, it can be used to vindicate the rights of humanity, irrespective of whether the crisis was brought by breaches of international human rights obligations or those flowing from international humanitarian law. In this sense, one sees a convergence between these two spheres of international law.

*Eyassu Gayim, Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This contribution was presented at the Nordic Summer University conference held in Wroclaw, Poland, on 25 February 2017. The author is grateful to the Nordic Summer University for the support given to him to participate in this conference, and for the valuable comments given to language of this paper by Reverend Ezra Gebremedhin and Mogens Chrom Jacobsen.

Endnotes

[1] English Oxford Living Dictionaries https://en.oxforddictionaries.com/definition/human_being; and also http://www.dictionary.com/browse/humanity

[2] Thomas Hobbes, Leviahan (1651), Part II, Of Common-wealth available in the internet (http://www.philosophy-index.com/hobbes/leviathan/17-of-causes.php

[3] Immanuel Kant, Thomas Kingsmill Abbott, translator, The Metaphysical Elements of Ethics (Cambridge, Cambridge University Press, 1991), in, http://www.philosophy-index.com/kant/metaphysical_ethics/introduction.php

[4] Immanuel Kant, The Metaphysics of Morals, p. 255; and Richard Dean, The Value of Humanity in Kant’s Moral Theory (Oxford: Clarendon Press, 2006), especially pp. 7-8.

[5] Dictionary.com, in https://www.merriam-webster.com/dictionary/humanity Likewise, in Merriam-Webster (https://www.merriam-webster.com/dictionary/humanity) we see this term defined either as “the totality of human beings or the human race” or “The quality of being human or humane” in the sense of being “compassionate, sympathetic, or generous behavior or disposition”  See further Encyclopaedia Britannica, vol. 11 London: Encyclopaedia Britannica, Inc., 1969), p. 825; Peters, Pam The Cambridge Guide to English Usage (Cambridge: Cambridge University Press, 2004), p. 256, and Joyce M. Haukins & Robert Allen, The Oxford Enclopedic English Dictionary (Oxford: Clarendon Press, 1991).

[6] David Humes, An Enquiry Concerning Principles of Morals. (London: Strand, 1751- 1777 edition of the Essays and Treatises on Several Subjects reproduced in http://www.davidhume.org/texts/epm.html), conclusion M9.13.

[7] Ibid., conclusion, M9.7.

[8] Michel Agier, “Humanity as an Identity and Its Political Effects”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development > Volume 1, Number 1, Fall 2010 (https://muse.jhu.edu/article/394858), p. 31.

[9] Charles Sherlock, The Doctrine of Humanity: Contours of Christian Theology (Leicester: Inter-Varsity Press, 1996), p. 238.

[10] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: An Nal Book, 1962 (1964), p. 33.

[11] Ibid, p. 34.

[12] Richard Rorty, Human Rights, Rationality, and Sentimentality, reproduced in www.nyu.edu/classes/gmornan/3/RoRTY.pdf  pp.167-169 and 177.

[13] Ibid., pp. 177.

[14] Geertz, Clifford. 1963. ‘The Integrative Revolution: Primordial Sentiments and Politics in the New States’. In Clifford Geertz, ed. Old Societies and New States: The Quest for Modernity in Asia and Africa. London: London Free Press, 255–310.

[15] Agier, p. 30

[16] See the first preamble of the 1998/9 Statute of the International Criminal Court, in http://www.un.org/law/icc/index.html

[17] Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), p. 16.

[18] Eyassu Gayim, “The Discourse on Human Rights and the International Regime of Human Rights”, Nordicum-Mediterraneum Vol  11, no. 4, 2016.

[19] Lorrin Thomas, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Volume 6, Number 2, Summer 2015 pp. 337 – 340: James Dawes, Samantha Gupta, ”On Narrative and Human Rights”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 2014, Vol.5(1), pp.149-151 (https://muse.jhu.edu/article/536275); and Alison Dundes Renteln, International Human Rights: Universalism Versus Relativism, Frontiers of Anthropology, vol. 6 (Newbury: Sage Publication, 1990), p. 17.

[20] Austin Sarat and Thomas R. Kearns, Human Rights: Concepts, Contests, Contingencies (Ann Arbor: University of Michigan Press: 2001) p. 11.

[21] Claire Breay, Julian Harrison, Magna Charta: an introduction, in https://www.bl.uk/magna-carta/articles/magna-carta-an-introduction.

[22] https://www.archives.gov/founding-docs/declaration-transcript

[23] Susan Maslan, “The Anti-Human: Man and Citizen before the Declaration of the Rights of Man and of the Citizen”, South Atlantic Quarterly, Spring/Summer 2004 103(2-3), p. 360 available in http://saq.dukejournals.org/content/103/2-3/357.full.pdf+html

[24] http://www.historyguide.org/intellect/declaration.html

25 UNHCHR, ”What are Human Rights?”, http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

[26] Donnelly, p. 1.

[27] Austin Sarat and Thomas R. Kearns, p. 2.

[28] Lynn Festa. “Humanity without Feathers”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Vol. 1, no. 1 Fall 2010, p. 7, in https://doi.org/10.1353/hum.2010.0007

[29] Ibid., p. 9.

[30] Ibid., p. 19.

[31]Jean-Jacques Rousseau, The Social Contract, opening part of chapter 1, in http://www.sparknotes.com/philosophy/socialcontract/section2.rhtml

[32] Reproduced in, Micheline R. Isyay, ed., The Human Rights Reader: Major Political Essays, Speeches, and Documents from Ancient Times to the Present, 2nd ed. (New York: Routlege, 2007) p. 128, available in google.com.