Migration and Human Rights (7)

Citizens typically enjoy the best human rights protection of anyone in the territory of a country, relatively speaking. Even in badly governed states or dictatorships they are better off than immigrants, legal or illegal. And also in perfect democracies do citizens enjoy more rights than legal immigrants: the former have political rights, the latter do not. See this post for more information about this difference.

However, in a perfect democracy, legal immigrants and citizens enjoy the same level of protection with regard to all other types of rights, non-political rights such as freedom rights. This is called the principle of constitutional universality.

Illegal immigrants of course have a much harder time, even in perfect democracies. As they live in the “dark” they will find it difficult to come forward to complain about rights violations or to go to the police or the judge. Doing so will reveal their illegal status and will result in forcible return to their country of origin.

Asylum seekers or refugees have an even harder time because they are usually imprisoned for the duration of their asylum application. And as they are imprisoned, they usually find it difficult to escape into illegality when their application is denied. Compared to normal illegal immigrants, the government knows where they are – in prison – and hence can easily return them to their own country.

The worst off are the modern slaves. Many of them end up in slavery as a consequence of migration and trafficking, but not all. Many modern slaves are normal citizens.

Since citizens generally enjoy the best rights protection, it is a good strategy for non-citizens to try to become citizens. Traditionally, only legal immigrants can apply for citizenship (when some conditions are fulfilled). Asylum seekers, when their application is accepted, become legal immigrants and then they can, in the next step, try to apply for citizenship. If their asylum application is rejected, they are either send back or disappear into illegality. Together with other illegal immigrants, they first have to become legal immigrants (for example through some kind of amnesty measure) before they can hope to apply for citizenship.

What Are Human Rights? (15): Constitutionally Universal

The theme of this post is the often difficult relationship between citizenship and human rights. This relationship is difficult because human rights, which are explicitly rights for all people everywhere, without distinctions of any kind, seem to require citizenship, and hence a distinction between groups of somehow differentiated people, for their protection. Without citizenship, it is argued, human rights remain a wish rather than a reality, potential rather than effective. Indeed, we often see that non-citizens such as refugees, asylum-seekers or stateless people suffer more rights violations than the citizens of the countries in which they happen to find themselves, even if these countries are comparatively well functioning democracies.

I want to argue that there are no legal reasons to consider citizenship as some kind of necessary condition for the protection of the rights of people within the territory of a state. Or, to put it negatively, that there are no legal reasons to treat the rights of non-citizens with less respect than the rights of citizens, or to accept violations of the rights of non-citizens with more ease than violations of the rights of citizens. There has to be, in other words, equality of protection between citizens and non-citizens. Citizenship therefore should be irrelevant for the protection of the human rights of the people within a given state territory. The state should be blind in this respect and treat non-citizens as if they were citizens. Non-citizens should have the same legal, judicial and other means to stand up for their rights.

The legal argument is based on Article 2, paragraph 1 of The International Covenant on Civil and Political Rights, which states the following:

“Each State Party to the present Covenant undertakes 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, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

The widely held but mistaken belief that the rights of non-citizens residing in a state are, perhaps inevitably, more precarious than the rights of the citizens living beside them, goes back to the historically important role of citizenship in the practice of protecting human rights. Theoretically, citizenship is irrelevant to human rights. These rights are the equal rights of all human beings, equally and unconditionally. It is not justified to say that one should be white, male, citizen or whatever to be able to enjoy the protection of these rights. Universality, equality and unconditionality are perhaps the main characteristics of human rights. That is where they got their name. They would not be called human rights if this were not the case.

Although theoretically these rights come with no conditions attached, in reality and in practice there are many necessary conditions for their effective protection: a well functioning judiciary, a separation of powers, a certain mentality, certain economic conditions etc. Too many to name them all, unfortunately. But the one we should name and explain is citizenship. Historically, it was because people were citizens of a state that they could use and improve the institutions and judicial instruments of the state, including the executive powers, to enforce their rights. It is this historical contingency, the fact that people have always found their citizenship very useful for their human rights, which has led many to believe that there is some kind of special link between citizenship and human rights which makes it possible and acceptable to treat the rights of non-citizens with less respect. That rights are only accessible to citizens. That the rights of man have often been the “rights of an Englishman” in the words of Burke.

“The survivors of the extermination camps, the inmates of concentration and internment camps, and even the comparatively happy stateless people could see … that the abstract nakedness of being nothing but human was their greatest danger” (Hannah Arendt, The Origins of Totalitarianism).

The state, although it does not grant rights, has to recognize them and make them real, but not only for citizens. The constitution, the main instrument for recognizing human rights, should and nowadays often does explicitly guarantee rights for humans, and not merely rights for citizens. Everybody within the territory of the state, not only the citizens of the state, can then enjoy the human rights protected by the constitution. Citizens as well as non-citizens can then go to court and challenge unjust laws or acts of state. Both categories of people have legal personality. This is often called the constitutional universality of rights.

The protection of the economic rights of non-citizens is an even more contentious matter. Should non-citizens have the same healthcare protection, social security, education etc.? In principle yes, but some countries may have such a large number of non-citizens in their territory that the economic viability of their social security system comes under threat. The tax payers ability to fund the system is limited, and non-citizens normally don’t pay taxes.

What Are Human Rights? (14): Rights of Citizens

Political rights are rights that guarantee participation, directly and through freely chosen representatives, in the affairs of government (mainly legislation). These rights are legitimately reserved for citizens only. A state should guarantee the freedom rights of all persons within its territory, irrespective of their nationality or citizenship, so including the citizens (those people having acquired the nationality of the state by birth, naturalization etc.), immigrants, refugees, stateless people, visitors, tourists etc.

However, political rights may be excluded from this rule because otherwise these rights would become unworkable. This means that people only have political rights in the state of which they are citizens. This in no way limits the universality of political rights. Everybody has political rights, but not everywhere. Furthermore, it must be possible to grant citizenship and the political rights connected to it in a selective way, so as not to empty the meaning of the restriction of political rights to citizens. And this is also what happens in reality. I think there are four good reasons for doing so:

  1. A definition of citizenship purely based on the physical presence within a territory would be too vague. People would enter and leave the community of citizens all of the time and this would create permanent modifications in the image and identity of the political unity (or the political community). This would endanger the stability and the permanence of the state and would allow passing residents to use political rights in order to shape the future of people with whom they have nothing in common. It would therefore be contrary to the democratic ideal of self-control and self-government, an ideal which is the basis of political rights and which I believe to be universally accepted (even tyrannies justify many of their actions on the self-determination of their peoples).
  2. Political rights and citizenship cannot be exercised effectively if the people do not speak a common language (not necessarily their native language). There is no persuasion without mutual understanding and there is no common will without persuasion. On top of that, the effective use of political rights requires that the participants in political life know the political system and the political culture in which they participate. There is even a case to be made for knowledge of general cultural customs as a requirement for granting political rights. All these conditions for the effective use of political rights and hence for citizenship and nationality, seem to imply a further condition, namely a certain stability of residence. It is therefore normal to decide a request for naturalization on the basis of these conditions. However, these conditions do not imply the rejection of multiculturalism. The common language does not have to be the native language and it is possible, in many cases, to know and practice other political and cultural customs without denying your own customs.
  3. Non-citizens usually do not pay taxes. As political decisions often deal with the way in which tax-money should be spent, it seems fair to exclude those who do not contribute to that sum of money. Why should you be allowed to decide what is done with someone else’s money? Let alone spend it for your own purposes?
  4. If a country allows too many people to become its citizens, it can endanger its economic prosperity, especially when the majority of these people are poor and unskilled. This is not egoism. Economic ruin does not help anybody.

Because everybody is not always or cannot always be in his or her own state, and because political rights embody very important human values such as self-government – which means the values of non-citizens as well – we should try to limit the conditions for the enjoyment of these rights by non-citizens to what is absolutely necessary. Foreigners who know the language, the political system and the general culture, who pay taxes and who have lived a certain time in the country should be allowed to enjoy political rights, even when they are not yet citizens in the sense of having acquired the nationality of the country. Not doing so would be discrimination, would lead to frustration and resentment, and would lead to the very problems the first point mentioned above is framed to avoid.

Only freedom rights are universal and come with no strings attached. Citizens and non-citizens alike should have freedom rights everywhere. Freedom rights are the rights of everybody in all places. Political rights are to some extent national rights or rights of citizens only. This does not contradict the principle of the universality of human rights because everybody is a citizen somewhere. Or better, everybody has a right to be a citizen of his or her own state and has a right to be a citizen of a state which protects all the rights of its citizens. Article 15 of the Universal Declaration of Human Rights states:

1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.