In the last decade discussions on international human rights regimes and post-national citizenship have been gaining popularity. The emergence of supranational human rights institutions, such as the UN, UNHCR, European Court of Justice, ILO, and such documents as the Universal Declaration of Human Rights and other international covenants and conventions, including the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and the ILO Migrant Workers Convention, are cited as examples of this trend. Several authors view these developments as indicative of a shift from a state-based to a more individual-based universal conception of rights, or from national citizenship to post-national citizenship.
Though the concept of post-national citizenship has been widely criticized, it remains true that migrants in many European countries and in North America have gained certain legal rights which coincide with the moral principles prescribed by the international conventions. However, in practice, migrants continue to suffer human rights violations despite the existence of legal frameworks that protect them. While there may be various reasons why migrants may not exercise the legal rights extended to them by the receiving states, this presentation advances an explanation that focuses on the contradiction between two notions of citizenship – one linked to rights and the one linked to membership in a community. The first one advocate’s principles of inclusion the second – of exclusion. As Soysal explains, citizenship is based on two components, identity, and rights. Though the rights have attained universal status, the identity of inclusion in a nation-state still remains ingrained in the territorial boundary concept of the classical model (p. 202). On the basis of this notion of inclusion and exclusion, I base my argument that though the post-national model advocates universal citizenship on the basis of human rights we cannot negate the importance of the nation-state which still holds the right to grant membership.
Soysal has developed an argument that national citizenship is losing ground to a more universal model of membership rooted in universal notions of human rights. She suggests that rights that used to be granted solely to nationals are now extended to the foreign population and that we are witnessing a transition from national to post-national citizenship. But it cannot be denied that no international agency has the right to interfere in the internal affairs of the states. Though one cannot omit the fact that there is no longer a sharp distinction between the rights enjoyed by citizens and those of non-citizens (or denizens, as permanent foreign residents in Europe have been coined). Soysal has argued that universal personhood forms the basis of membership which comes across most clearly in the case of political refugees. Refugees are in a way are stateless, but their status on the host states primarily lies on human rights appeal (p. 194) Brubaker, although critical of the ‘post-national citizenship’ thesis, acknowledges that “the marginal advantages conferred by citizenship over and above those converted by the status of a long-term foreign resident are of modest import. From the point of view of the immigrants concerned, citizenship status as such does not decisively shape life chances” (p. 180)
With the wide acceptance of post-national citizenship, scholars like Brubaker have argued that it has diminished the importance of the nation-state. Brubaker (1992) contends, “Viewed against the backdrop of the loss of sovereign control over admission to the territory and access to civil and socioeconomic rights, state’s continued sovereign control over admission to citizenship stands out” (p. 180). It is not hard to point out that by focusing on the 1960s European guest workers, Soysal ignores less permanent forms of migration and the fact that people participating in them are often denied human rights (Brubaker, p. 136). The fact remains that many migrant workers have benefited from the legal extension of the rights previously reserved for the national population. And therefore from a legal perspective, migrant workers have become post-national citizens.
However, when citizenship is viewed not merely in relation to legal rights but as a set of practices that lead to the establishment of rights, access, and belonging and shape the flow of resources to persons and social groups, the picture becomes considerably different. The exercise of legal rights may be denied because the means to use citizenship rights, including adequate education, means of communication, and access to transportation may not be sufficiently established. In the case of migrants, failure to exercise the legal rights extended to them by the receiving states may be related to the social exclusion from the national community of the host society. As Brubaker has pointed out that the egalitarian norms stress that long-term residence be considered for full citizenship, but norms of unique, sacred, and national membership have more restrictive preconditions for admission (p.136)
International migrants are often caught in the contradiction between two citizenship principles. The first principle refers to access to rights and the second to membership in a community or identity. Soysal contends that there is a clash between two elements of modern citizenship: rights and identities (p.202). She observes: “In the postwar era, these two elements of citizenship are decoupled. Rights increasingly assume universality, legal uniformity, and abstractness, and are defined at the global level. Identities, in contrast, still express particularity and are conceived of as being territorially bounded.
As an identity, national citizenship – as it is promoted, reinvented, and reified by states and other societal actors – still prevails.” (Soysal p. 207). As Brubaker contends, “The politics of citizenship today is first and foremost a politics of nationhood. As such it is a politics of identity, not a politics of interest (in the restricted, materialist sense). (p. 148) In other words, foreign residents may be simultaneously offered membership in a community of citizens when defined in terms of rights and denied citizenship in the same community when defined in terms of belonging and identity. These two aspects of citizenship are not distinct; they are inter-connected. The central argument of this presentation is that the denial of a social membership (based on identity and belonging) in a community of citizens to some categories of migrants makes it difficult for these migrants to exercise the legal rights that may be extended to them by the international and national legislature.
Another argument that can be put forth to portray the distinctiveness of human rights and citizenship lies in the fact that human rights are not enshrined in any theoretical background (Beitz p.36). Another problem in labeling citizenship as human rights is the presence of the argument that scholars like Cranston, Finnis, and Michael Ignatieff put forward is that human rights are basically natural rights. So if this argument is accepted, then citizenship, which gives individual social, political, and economic rights, cannot be correlated. But Beitz argues that human rights encompass the public sphere which was primarily missing in the natural rights argument. So he argues that natural rights were about guaranteeing individual liberty against infringement by the state, but human rights are about this and more. (p.41)
human rights are universal as put forth by the UN declaration of human rights in article 1 and article 2. As Hart has postulated that human rights are a type of special rights ad, not general rights. The former arises out of special transactions and relationships and the latter belongs to “all men capable of choice.” Beitz too believes that human rights should be given the status of special rights that arise out of people’s relationships as participants in the global political economy (p.43). But is it enough to state that citizenship is a human right? Well if this was the case then U.S. citizens would be equally concerned about steelworkers in West Virginia and factory workers in Mexico. Since this is not the case, we can argue that citizenship cannot be considered a human right. The major argument against such a notion is that though human rights are the basic requirements for global justice, the question remains, is citizenship a question of justice or inclusion to a nation-state?
Much Human Rights legislation regarding citizenship seems to ignore the moral and political aspects of this community of participation. The ‘human right’ to free movement and the citizenship of all has shown a tendency to transform free, settled, and prosperous communities into places of temporary and free accommodation. Legislators today seem to believe that citizenship should not require any degree of assimilation or commitment. The social democracy of Quebec, quixotically, wants its immigrants to assimilate but stridently opposes any attempt at what it regards as their assimilation by Canada.
As Brubaker has shown that citizenship is based on the idea of nation-state membership that has developed in different countries through the ages. Citing the examples of France and Germany he shows that France’s citizenship laws are based on universalism and acceptance of immigrants who are of the second generation but not in Germany where citizenship is bestowed only on the basis of ethnicity. Hence we clearly see that there lies a big difference in the concepts of human rights and citizenship as the state membership remains as the propriety of the sovereign state and not the global human rights institutions.
Citizenship needs to be understood as a multi-layered construct, in which one’s citizenship in collectivities in the different layers – local, ethnic, national, state, cross or trans-state and supra-state – is affected and often at least partly constructed by the relationships and positioning of each layer in specific historical context. It is important to realize, however, that these layers may be inter-connected and that the exercise of rights associated with citizenship at one layer may be precluded by the limitations on citizenship at another layer. Marshall points out the malleability of modern citizenship, expressed in its opening up for social rights throughout the 20th century. Until today, there exist three main legal pillars of citizenship: political, civil, and social rights. The constituent elements of political rights are the right to self-determination, the right to run for and hold political office, freedom of speech and opinion, as well as the right to establish political associations, such as parties.
Through civil rights, the freedom of consciousness or the right to bodily integrity is stipulated. They also contain rights that are essential to a liberal market economy, such as the right to property or the right to conclude contracts. Both political and civil rights are strongly interwoven with human rights. Accordingly, they date from the 18th and 19th centuries. Social rights, on the other hand, are the consequence of increased conflicts between social interest groups, such as trade unions and political institutions. They evolved in the first half of the last century and are strongly related to the emergence of welfare states. Varying from state to state, they contain the right to a minimum wage, to health insurance, or to maternity leave. The widening of citizenship into the social dimension shows that citizenship is not static, but adaptable to challenges from different interest groups. Similar to the development of social rights, it is by now entirely conceivable that, for instance, due to the struggles of culturally marginalized groups, special legal provisions for their protection could become part of citizenship rights as well. Hence we may conclude that citizenship cannot be termed as human rights.
Reference
TH.Marshall, “Citizenship and Social Class,” (pp.93 –111).
Rogers Brubaker, “Immigration, Citizenship and the Nation-State in France and Germany,” (pp.131–153).
Yasemin Soysal, “Towards a Post-National Model of Membership,” (pp.189–211).
“Universal Declaration on Human Rights, Approved by the General Assembly of the United Nations on December 6, 1948.”
Charles Beitz, “What Human Rights Mean.” (Daedalus 132:36-46).