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When Citizenship and Human Rights clash

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The notion of “citizenship” has been analysed and debated more elaborately, and for much longer, in the French tradition than in the different Anglo-Saxon traditions. Yet things seem to be changing in the last decade. The increasing number of immigrants and the security threats on Western societies have brought some notions back to centre stage along with new debates. In the United States as in Europe, the issue of “citizenship” is raised: in other words, the question asked is “who belongs with us?” or what requirements should be met to do so. The approach is not fundamentally constructive, generous and positive, because it results from many fears and from cultural and religious diversity being difficult to manage in spite of the common legal framework. Those were not the preoccupations of the first theorists of the social contract such as Hobbes, Locke, Rousseau, and then de Tocqueville (who was concerned with equality of condition): what mattered was the legal foundation of belonging and maintaining equality, as well as regulating, again through law, interpersonal relationships or those which were to be established between individuals and the State. Cultural homogeneousness was taken for granted so that no breach in the letter or spirit of the law thus determined and implemented could be foreseen. What was involved was managing political powers through the social contract in order to limit the state’s prerogatives, to restrict the influence of the rich and powerful and to protect the rights of the most vulnerable.

Praising and defending democratic principles had been quite positive and had allowed European, then American societies to progress towards more effective rule of law. However a question had long been surfacing recurrently and insistently, though it was difficult to formulate a consistent answer, if not a clear one. On the level of philosophical conception and fundamental law, was the idea of equality and of the social contract defended in the name of a particular idea of Man, so that it should apply to everyone in the same way, or was it a reflection restricted to one’s own society, to its members, leaving out – or merely overlooking – the others? The question is neither trivial nor new: in the Republic already, Plato’s ideal society seems to involve only an elite, like Athenian democracy which benefited a minority and left out all others (and never of course included foreigners, “barbarians”). The contribution of al-Fârâbî (9th and 10th centuries), the “second Aristotle” as Ibn Rushd (Averroes) called him, with his reflections and proposals about the relationship between politics, philosophy and ethics, particularly in his Ideas of the Inhabitants (Citizens) of the Virtuous City, reveals the same problem: what about those who are not members of the virtuous or ideal city or who for some reason might not be considered as full members? The positive principle of rule of law and equality between “us” has not exhausted the meaning of the question regarding justice towards those who are qualified or represented as “them”: they are “the others”, barbarians, foreigners, but also the individuals inside whose status is despised, as was and still is the case for the dalit (oppressed pariahs) in India. Being democratic and fair between ourselves does not rule out the possibility of being autocratic, unfair colonisers with regard to others: the finest philosophies have not managed to avoid such contradictions and History is run through with such contradictory dispositions and treatments.

Our modern, more or less democratic, more or less rich societies are far from having come to terms with those challenges. Problems pile up. Of course, the citizen status is supposed to offer the same rights for all and determine the same obligations. Here the social contract is fairly clear and the society’s members know their duties and prerogatives. However, there are other statuses: one for residents, then another for immigrants (who in most countries are qualified according to time criteria: “long-term”, “temporary”, “seasonal”, etc.), then another for refugees, then lastly there is an indeterminate category that includes “illegal immigrants” and “undocumented” residents. The law distinguishes between those different statuses and the principle of equality is by definition dependent on them. What is disturbing and most annoying is to observe that different statuses justify different treatments which may run counter to respect for human dignity. Interpretations of the law and the modalities of its implementation (more than the letter of the law, although sometimes the letter itself is explicitly the problem) legitimate unacceptable treatments in complete contradiction with what one considers as fair for oneself and between one’s own. “National preference” can marginalise highly competent residents, and immigrants are sometimes treated in a most hateful way in many Western countries as well as in Asia, all over the African continent and in oil-rich kingdoms. Refugees and undocumented residents are criminalised and suffer daily humiliations: exploitation, ill treatment, arrests, mass or individual expulsion by charter flight to their “home countries”. Can we, like the ancient philosophies which could praise Athens and despise “foreigners”, be content with the noble “citizen” status and distinguish it to the point of short-sightedness from the unenviable statuses of immigrant or clandestine “barbarians”? Behind categories and labels, are we not creating, or accepting, new castes and statuses that draw distinctions on the basis of origin, colour or wealth? Can our protected democracies justify the blatant slavery of so many women and men? If the direct fault does not explicitly lie with democracies “as such”, is not silently accepting those hierarchies and those discriminatory treatments in itself a moral fault? That was the meaning of Latin American countries’ mobilisation when the European Union voted its immigration law, the “return directive”, which encourages “voluntary returns” and notably allows jailing undocumented immigrants and deporting minors. South American countries (amid deafening silence from Africa and particularly North African countries) criticised that “shameful directive”, reminding Europeans that not so long ago they had been the migrants to America and that they had met with a very different reception. They added that a direct link must be established between migrations and human rights: human rights also apply to immigrants and refugees compelled by economic circumstances, and often misery, to look for a way to survive. All is as if human rights had become a discourse and an instrument in the hands of the rich: a discourse to glorify their ideals, an accommodating instrument to protect their interests. From South America to Asia, that is how they are perceived by the billions of women and men whose living conditions make of human rights a pure illusion of the mind.

We should go even further, for categories seem to have set in even between citizens. There seem to be different kinds of “citizens”. On the one hand there are those who took part historically, in a more or less real, idealised or fantasised way, in the original social contract, who share the common homogenous culture and who in the collective mindset are actually part of the society. Those seem to be naturally entitled to the same rights. Then on the other hand there are the others, the “new citizens”, the “foreign citizens”, but whose culture and religion are perceived as different, who may indeed be citizens but whose status is not the same: they are still “them”, outside, “a minority”, whereas the concept of “minority citizenship” has no legal existence. It is a psychological status: those “citizens” still have to integrate, to prove (often after several generations) that they can really be part of “us”. A new type of citizenship has thus been created for those who are not entirely trusted (who are clearly distrusted), and mere respect for the law is not enough for it: indeed those “new” citizens would be wrong to demand equal implementation of the law, for it is “normal” that additional requirements should apply to those whose “integration” and “loyalty” must be verified. This is what the young Dutch sociologist Willem Schinkel has called “moral citizenship”: there is nothing legal about it, nothing really formal, but a sort of list has been drawn up of what is expected from a culturally and religiously different citizen before he can obtain full status. Beyond respecting the laws and learning the language, his private life is intruded in without hesitation, his customs, his way of dressing or of educating his children, etc. are questioned. Nothing is clearly said, it is all informal, but that informality of “moral citizenship” or of “psychological citizenship” has very concrete consequences on individuals: they are not really part of the collective psyche and they can suffer discriminations which do not really shock “the majority”. After generations of presence, the legal and psychological success of integration would lie in no longer speaking about integration, but what can be observed is the opposite: after two, three, four generations, “they” are still “of immigrant background”. It should perhaps be recalled, and this is ultimately the implicit and explicit message which South Americans wanted to convey to Europe about its “immigration policy”, that the difference between immigrants and “new” citizens on the one hand, and “original citizens” on the other hand, lies in the fact that the latter are merely longer-standing immigrants. We are no longer in the sphere of law but in that of psychology, of the informal, of time and of confidence (in oneself and in others), and the consequences should not be minimised.

Source: http://gulfnews.com/opinions/columnists/when-citizenship-and-human-rights-clash-1.1192301

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