1. Citizens and aliens: the traditional borderline

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Rainer Bauböck

1. Citizens and aliens: the traditional borderline

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

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

(1) Subjection to territorial sovereignty

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

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

(2) Exclusion from citizenship rights

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

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

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

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