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2016 | Book

Introduction Read chapter Read first chapter

Citizenship as a Human Right

The Fundamental Right to a Specific Citizenship

Author: Gonçalo Matias

Publisher: Palgrave Macmillan UK

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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About this book

This book examines a stringent problem of current migration societies—whether or not to extend citizenship to resident migrants. Undocumented migration has been an active issue for many decades in the USA, and became a central concern in Europe following the Mediterranean migrant crisis.

In this innovative study based on the basic principles of transnational citizenship law and the naturalization pattern around the world, Matias purports that it is possible to determine that no citizen in waiting should be permanently excluded from citizenship. Such a proposition not only imposes a positive duty overriding an important dimension of sovereignty but it also gives rise to a discussion about undocumented migration. With its transnational law focus, and cases from public international law courts, European courts and national courts, Citizenship as a Human Right: The Fundamental Right to a Specific Citizenship may be applied to virtually anywhere in the world.

Table of Contents

Frontmatter
Chapter 1. Introduction
Abstract
The central idea of this book is a legal claim based on international law toward a fundamental individual right of the long-term resident to the citizenship of the country wherein he or she resides.
This claim allows for a legal answer to the political as social problem that is under discussion in the USA and the European Union (EU).
Gonçalo Matias
Chapter 2. Conceptual Evolution
Abstract
The current meaning of citizenship depends on how it is framed within the structure of the State, if we accept the idea of a people as a linking element or substratum of legitimacy of a political community.
As historical analysis demonstrates, lying at the origin of citizenship is, precisely, the constitutional concept of a people. This origin of the concept is of great importance if we are to fully understand its current configuration. It is not possible to conceive citizenship disconnected from its substratum and the constitutional notion of a people. In fact, the definition of citizenship is the sovereign instrument for the definition of a people; in ancient times, as will be seen, the interpretation was always thus.
Gonçalo Matias
Chapter 3. International Law of Citizenship
Abstract
The international relevance of citizenship was highly motivated by the attempt to regulate and prevent conflicts of citizenship laws—both negative and positive.
Although there was an immense evolution resulting from the pressure of mass cross-border migration movements, also motivated by significant changes in the very structure of international law, that makes it impossible to assess current international citizenship law from the viewpoint of the early twentieth century, the same basic principles still persist.
International law has interacted with national citizenship law since early times, but this interaction was also not limited to reducing statelessness.
It existed in different times and areas of international citizenship law. It evolved in many ways and via various international instruments.
Gonçalo Matias
Chapter 4. Transnational Citizenship
Abstract
It is impossible to conduct a study on citizenship nowadays without addressing the critical question of transnational citizenship. It is clear that a narrow and monochromatic vision of citizenship centered on the State, defined by reference to a territory with its established borders and resulting from a perfect coincidence between etnos and demos, is long gone. Thus, scholars have increasingly invoked the concept of “transnational citizenship,” a term I use to denote a citizenship that is not tethered to the State.
Gonçalo Matias
Chapter 5. European Citizenship as a Form of Institutional Transnational Citizenship
Abstract
If there is a good example of a transnational citizenship, European citizenship might be it.
It is definitely not a national citizenship since the European Union (EU) is not a federal State nor was the EU citizenship status created in that direction.
Despite these limitations, EU citizenship has been undergoing significant developments, most of them resulting from the Court of Justice of the European Union’s (CJEU) judicial activism that will eventually transform EU citizenship into something closer to a federal status.
For the moment, despite those very promising developments that I will later describe, EU citizenship is probably the only example of an institutional transnational citizenship because, as I have stated above, it holds most of the citizenship elements and aspires to include all of them.
Gonçalo Matias
Chapter 6. Migrants’ Rights Protection and Migrants as Citizens in Waiting
Abstract
Immigration represents an important challenge to the internal laws of the States. The need for law enforcement, integration of foreigners and the definition of their rights and obligations, and the relationship between immigration and citizenship rules are some of the aspects that concern lawmakers and judicial actors all over the world.
In this context, it is particularly important to define the rights of so-called “Migrant workers.” In fact, the increased mobility resulting from the simplification of travel, globalization, and a greater awareness of national disparities and of migration opportunities has led to major movements of people seeking work in countries other than that of their origin.
It is therefore very important to assess the international legal rights and protection of migrants and migrant workers and their families which have been developed in order to prevent these persons from being exposed to exploitation and all sorts of illegal activities. Recent examples show that migrants are particularly vulnerable to the actions of clandestine immigration networks, of which they are, unfortunately, the main victims.
Gonçalo Matias
Chapter 7. The Right to Citizenship
Abstract
Based on basic principles of transnational citizenship law, such as the principle of protection of legitimate expectations, the principle of proportionality, ius domicilii, and adverse possessions, as well as the democratic principle and also based on the naturalization pattern around the world, it should be possible to determine that no citizen in waiting should be permanently excluded from citizenship. Although this proposition might sound quite consensual—especially within Western countries with standard naturalization policies—the basic essence of what has been said is very controversial. It not only imposes a positive duty overriding an important dimension of sovereignty—the symbolic definition of the people—but also gives rise to a discussion about undocumented migration. The access of these migrants to citizenship is an active question in the USA and is becoming one in Europe as well. There is no legal answer whatsoever, even though it is widely recognized that undocumented migrants have, as would seem obvious, human rights. The right to citizenship, being a human right, should also be included in this set of rights.
Gonçalo Matias
Chapter 8. Conclusion
Abstract
This book identifies a trend toward a reevaluation of the citizenship concept and status by considering the existence of a fundamental right to the specific citizenship of the residence country.
However, there is certainly a different position for the nation-state from Westphalia to the global world. A global world without a global state still needs traditional states to enforce its principles and rules. As I see it, States are obliged by the transnational law to enforce basic principles and rules through their traditional enforcement channels. It is very clear that international and transnational law will not be enforced otherwise.
This does not mean, though, that States remain free to do whatever they wish as long as this does not conflict with other States. Internal constraints increasingly result from international and transnational law, even in areas considered to be the realm of sovereignty, such as citizenship.
Gonçalo Matias
Backmatter
Metadata
Title
Citizenship as a Human Right
Author
Gonçalo Matias
Copyright Year
2016
Electronic ISBN
978-1-137-59384-9
Print ISBN
978-1-137-59383-2
DOI
https://doi.org/10.1057/978-1-137-59384-9