Rights cannot be taken away. According to the International Covenant on Civil and Political Rights (General Comment No 26):
The rights enshrined in the Covenant belong to the people living in the territory of the State party. The Human Rights Committee has consistently taken the view, as evidenced by its longstanding practice, that once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant.
While the comment applies to the Covenant the principle applies more broadly.
As citizens of the European Union, British citizens have the right to move and reside freely within the EU, to vote for and stand as a candidate in European Parliamentary elections as well as in local municipal elections across the European Union, to be protected by the diplomatic and consular services of any other EU member states, as well as a range of rights concerning petitions to European institutions, access to the EU ombudsperson, or EU documents.
So how can we reconcile Brexit with this fundamental principle that rights cannot be taken away?
One way to solve this conundrum is to allow individual citizens to retain their European citizenship whether or not Britain leaves the EU in return for a membership fee or tax; this should be a progressive payment, say 1p on the pound, with a low income threshold below which citizenship is free. A proposal along these lines has already been put forward in the European parliament and has been taken up by the negotiator on behalf of the Parliament, Guy Verhofstadt.
What are the advantages of this proposal?
First, and probably most importantly, the majority of young people in the UK want to remain in the EU. They value, above all, freedom of movement, the right to work and study in other EU member states and the right to healthcare and social security.
This does not only apply to upper income young people; many unemployed or low paid workers want to be able to seek jobs in the EU just as it is often poorer people from Eastern Europe who have emigrated to the UK.
Secondly, it provides an opportunity for revenue raising by the EU. At the moment, the average UK net contribution to the EU budget is £ 8 billion. If we assumed an additional 1p in the pound on income tax and we assume that 6.5 million take up associate citizenship (about a fifth of those who voted remain) then this would generate around one billion pounds, or an eighth of the EU contribution -more if more people wanted to remain as EU citizens.
Thirdly, establishing associate citizenship would establish the principle of individual EU citizenship. At the moment EU citizenship is tied to nationality. The change in the basis of EU citizenship would open much greater possibilities for democratisation, including the possibility that non-national residents could become citizens that would contribute to the multicultural character of the EU, and the prospect of political coalitions across borders.
The most serious objection to the proposal concerns reciprocity. Should UK citizens living in Britain be allowed to retain their EU citizens rights if EU citizens here are being denied theirs? Moreover, beyond the rights of EU citizens currently in the UK, should not all EU citizens retain the right to travel, work, study in the UK and, if resident, to vote in municipal elections? Should we also introduce associate British citizenship? If we accept the principle that rights cannot be taken away, then the fundamental issue is preserving freedom of movement and all that goes with it (rights to healthcare and social security, rights to participate in local government, and so on).
It is the various EU institutions that have to agree to the principle of associate citizenship; it seems unlikely that were associate citizenship to be offered to UK citizens, the UK government would object. But this would change if it were linked to freedom of movement as it would be have to be to be reciprocal.
It has also been asserted that associate citizenship would require EU treaty change. This would be in principle a positive treaty change but it might be difficult to convince all 27 member states to accept the proposal unless there were reciprocity. There is a great reluctance to give Britain any more special provisions. But since there is a legal case for arguing that rights cannot be taken away, surely associate citizenship has to be on the table for existing EU citizens both British and European?
If this were to be accepted, then wider proposals for individual citizenship or multi-level citizenship could in principle follow. It also might be worth exploring whether a legal case (as opposed to a political case) can be made more generally for retaining the right to move and reside freely within the European Union.
Mary Kaldor is Professor of Global Governance at the London School of Economics and Director of the Civil Society and Human Security Research Unit.
6th March 2017