Citizenship as a Human Right: The Fundamental Right to a Specific Citizenship

278 Pages·2016·2.27 MB·English

by  Gonçalo Matias (auth.)

Gonçalo Matias
citizenship
as a
human right
Th e Fundamental Right
to a Specifi c Citizenship
Citizenship as a Human Right

Gonçalo   Matias
Citizenship as a
Human Right
The Fundamental Right to a Specifi c Citizenship
Gonçalo   Matias
Catolica Global School of Law
Lisbon , Portugal

ISBN 978-1-137-59383-2 ISBN 978-1-137-59384-9 (eBook)
DOI 10.1057/978-1-137-59384-9
Library of Congress Control Number: 2016942674
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A
CKNOWLEDGMENTS
The research and writing of this book was a long process in the making,
starting with the PhD research, writing, and defense.
I am indebted to many colleagues and friends without whom this book
would never be possible.
First and foremost, I am grateful to my supervisors, Rui Medeiros and
Stephen H. Legomsky, for their guidance, invaluable support, relentless
incentive, and sharp critique. I would have never been able to write this
book without their advice and friendship.
An important part of my research was conducted at the Georgetown
University Law Centre where I was a Fulbright visiting scholar. I thank
T.  Alexander Aleinikoff for the opportunity and for the invaluable
support.
I would also like to thank my colleagues and staff, both at Universidade
Católica Portuguesa in Lisbon and at the Washington University in St.
Louis Law School, where I spent time doing research.
A special word is due to Deans Rui Medeiros, Luís Fábrica, Henrique
Sousa Antunes, Fernando Ferreira Pinto, Luís Barreto Xavier, and Jorge
Pereira da Silva for their continuous support.
I am indebted to Rector Maria da Glória Garcia for the incentive and
for the life example that always guided my path.
I thank Professors Jorge Miranda, Mattias Kumm, Miguel Nogueira
de Brito, and José Lobo Moutinho for their comments and observations
during the thesis defense.
v
vi ACKNOWLEDGMENTS
My dear friends António Araújo, João Taborda da Gama, and Nuno
Sampaio were there all the way to help.
This book is dedicated to my parents, Diana, Francisco, and Tomás.
They know why.
Lisbon, November 2015 G onçalo Matias
C
ONTENTS
1 Introduction 1
2 Conceptual Evolution 7
3 International Law of Citizenship 41
4 Transnational Citizenship 7 9
5 European Citizenship as a Form of Institutional
Transnational Citizenship 1 15
6 Migrants’ Rights Protection and Migrants as Citizens
in Waiting 153
7 The Right to Citizenship 197
8 Conclusion 2 39
Bibliography 2 41
Index 2 51
vii
CHAPTER 1
Introduction
There is a growing tendency toward the devaluation of the concept of
citizenship. It was perceived for many years as a key instrument of inter-
nal sovereignty. Once states become transparent as a consequence of glo-
balization and global governance, internal instruments of sovereignty
become less powerful.
This is particularly evident in the tendency which may be identifi ed in
both scholarly works and state practice toward extending broader legal
rights to non-citizens.
Although this may appear to be a means to guarantee political rights
and effective participation of migrants in the community, I do not believe
it is the best way of integrating migrants in the polity.
Scholars have developed several theories on the changing phenomena
of citizenship. While some have declared the devaluation of citizenship,
others have recognized the pulverization of its elements and propose slic-
ing the concept and extending some of its elements to migrants. These
theories are generally classifi ed as transnational or global citizenship.
There is room, however, for a different proposal for reassessing citizen-
ship and the interconnection of the concept with both the global arena
and internal democratic policies.
In fact, when migrants move to live in another country, they become, in
the expression of Motomura, citizens in waiting. 1 This means that to some
extent expectations are raised with regard to obtaining the citizenship of
the country where they are living and whose economic, social, and politi-
cal growth they contribute to.
© The Editor(s) (if applicable) and The Author(s) 2016 1
G. Matias, Citizenship as a Human Right,
DOI 10.1057/978-1-137-59384-9_1
2 G. MATIAS
It would be a democratic paradox to exclude these people permanently
from the citizenship status. Of course we can claim that the concept is irrel-
evant or we can even slice it, give it away, and then claim the irrelevance of
the status. Yet, it will always be a matter of discrimination, and ultimately,
of democratic failings to admit that, according to a certain perception of
sovereignty, the member of the “club”—in the words of Walzer—can per-
manently exclude the others from the exercise of political rights. 2
Seen from this perspective, we need to acknowledge the power of citi-
zenship as an instrument of inclusion—and deny the theory of the decline
of citizenship—and also acknowledge that diffusing elements of citizen-
ship and granting them to migrants will not be enough to achieve the
ultimate inclusive target as the status will always be lacking.
If we study naturalization policies around the world, a certain pattern
can be found. There are also international legal instruments—such as the
European Convention on Nationality (ECN)—that impose duties on
states related to the granting of citizenship and the aforesaid naturaliza-
tion policies.
It is necessary to reinterpret the right to citizenship set out in the
Universal Declaration of Human Rights. For many years, it was inter-
preted as prohibiting policies that created or contributed to a situation
of Statelessness. For that purpose, international legal instruments were
created and judicial decisions were proclaimed. The right to citizen-
ship was perceived as a negative limit to state sovereignty. A state could
deny or overrule another state’s decision on citizenship if that decision
was arbitrary (with no effective link) or contributed to the situation of
Statelessness.
It is now necessary to reinterpret that reading of the Declaration. In a
globalized world where even citizenship—the last bastion of sovereignty
(Legomsky)—has gone global—it is not enough to consider citizenship as
a negative limit to state sovereignty. 3 It is probably necessary to consider
it as a positive imposition on states. That means that if—as I will argue
here—we consider the right to citizenship as a natural consequence of a
path, down the road, that someone initiated the moment they set foot as
a migrant in a country, one should probably recognize that the right to
citizenship is no longer merely the right to have one citizenship but the
right to have access to a certain citizenship.
Based on basic principles of transnational citizenship law, such as the
principle of protection of legitimate expectations, the principle of propor-
tionality, ius domicilii and adverse possessions, as well as the d emocratic