Ambiguities of Personhood, Citizenship, Migration and Fundamental Rights in EU Law

Abstract

Both ‘personhood’ and ‘human rights’ are basic categories of law with a long tradition in (Western) thought. Historically, not all human beings were considered equal persons before the law, although most jurisdictions in Europe moved towards the principled recognition of legal personality, within domestic legal orders at least, during the 19th century. Against this background, it does not come as a surprise that the human right to equal personhood before the law enshrined in Article 16 International Covenant on Civil and Political Rights and Article 6 Universal Declaration of Human Rights finds no equivalent in the European Convention on Human Rights and the EU Charter of Fundamental Rights and has little practical impact in the EU legal order. As an abstract category, the human right to legal personality may not have much relevance, although a reminder of historic debates in civil law jurisdictions shows striking similarities to contemporary debates about migration. From today’s perspective, the delineation of fundamental rights and citizenship reveals a surprising conceptual ambiguity over the role of the individual underlying basic concepts of Union law. This chapter will focus on the category of the right-bearer in terms of groups of subjects endowed with individual rights as a heuristic device to reconstruct different conceptions of personhood in Union law. This undertaking concentrates on fundamental rights of individuals in the EU Treaties covering both human rights sensu stricto and the classic guarantees to transnational free movement, which lie at the heart of the single market. Closer inspection shows that there is no uniform category of the right-bearer in Union law and that subjects that may invoke fundamental guarantees changed over time. The argument will start with an explanation of the historic background of legal personhood and related human rights guarantees (see below II) and explore the status of the individual in EU law thereafter (see below III). On this basis, it will present what I call the ‘citizenship-personhood-cleavage’ defining the interplay between Union citizenship and rules on immigration and asylum together with a proposal of how to reconstruct the distinction from a constitutional perspective (see below IV).