The main category of the population in each state are citizens. Their legal status is determined by national legislation, primarily the constitution, legislation on citizenship and other regulatory legal acts of the state. The concept of “citizenship” was known from far times and initially it was invested with a different meaning. So, the term “citizen” was known in ancient Rome. Sometimes the concepts of “citizenship” and “citizenship” are used interchangeably in legal literature as synonyms. But it should be noted that the term “subject” has existed since the times of absolutism, when a person was a subject of a feudal lord. Citizenship meant finding a person “under tribute”, that is, the person was obliged to pay tribute. Currently, in countries with a monarchical form of government, the concept of “citizenship” is used, but in a number of developed monarchy countries the term “citizenship” in constitutions and current legislation has been replaced by the term “citizenship”.
In the period of the Great French Bourgeois Revolution of 1789, the Declaration of the Rights of Man and of the Citizens was adopted. This document enshrines natural inalienable human rights, as well as the obligation to ensure these rights. For the first time, the notion of “citizen” was formally established. So, Art. 6 of the declaration stated that the law should be the only one for all, and all citizens are equal before it, having equal access to all posts, public posts and classes according to their abilities [6. S. 221].
As it is known, the rights and freedoms fully extend only to the citizens of the respective country. So, in Great Britain, the country which is the birthplace of constitutionalism, there is no written basic higher law. Nevertheless, it was in this country that the first document appeared that partially regulated the legal status of a person – the Magna Carta of 1215 (this document begins the countdown of the development of constitutionalism in the United Kingdom and other countries).
Adopted in 1787, the US Constitution enshrines certain rights and freedoms of a human citizen. But, contrary to the conventional wisdom that the American Constitution, and after it the French Declaration of the Rights and Freedoms of a Citizen’s Person, is “the quintessence of human experience” of creating a democratic society, as N. S. Ivanov and P. P. Cherkasov write A. A. Iserov, “the American researchers themselves admit that it was the result of both the poor political practice of the American colonies and the specific Anglo-Saxon historical path” [7. P. 121]. The Constitution of the United States reflected three British documents: the Magna Carta, the Petition of Rights in 1628 and the Bill of Rights in 1689. The last document contained provisions that were almost unchanged in the American Constitution.
In international law and constitutional law, the following categories of persons included in the concept of “population” are distinguished: 1) citizens (subjects) of a separate state; 2) foreign citizens permanently residing in this country. These categories may also include dual citizenship (bipatrides). In the second category, it is possible to distinguish stateless persons (stateless), refugees, and migrants. Citizenship acts as a subjective right inherent in an individual. Subjective right includes a number of powers: to reside in the state; have a full range of rights, freedoms, duties; free to leave and return to the territory of the state; enjoy the protection of state power.
Constitutional subjective law, according to S. S. Alekseev, “expresses a strictly limited measure of the permitted behavior, and therefore, in itself, contains a prohibition of any other behavior not covered by this“ measure ”” [2. P. 90].
Any constitution, domestic or foreign, does not disclose the normative content of all human and civil rights and freedoms. Developing the concept of subjective human rights, one should agree with the opinion of B. S. Ebzeev that “by establishing the criteria for the exercise of fundamental freedoms, it (the constitution) thus outlines their external limits, while remaining in which the person acts at his own discretion” . This position is confirmed by the provision of such international documents as the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, which stipulate that everyone has the right to citizenship. It is characterized by a constant stable political and legal connection of the individual with the state, which implies mutual rights, duties and responsibilities. In the republics, the term “citizenship” is used to refer to this connection.
B. S. Ebzeev considers citizenship as a definite legal relationship between a person and a state in which an individual has the right to citizenship, and the state is obliged to provide conditions and procedures for the granting of citizenship that cannot be discriminatory or used arbitrarily [2. Pp. 186-187].
N. V. Vitruk characterizes citizenship as a legal phenomenon, where there is a legal stable, permanently lasting connection on the person’s belonging to the state (state-organized society), which is mediated by a set of individual rights in the sphere of citizenship relations (according to Vitruk’s recognition, his acquisition, termination and ) [3. P. 400]. Thus, the concept of “citizenship” implies something more than the passive loyalty of a certain person. A citizen is a person who can participate in the implementation of state power. As AV Avtonomov notes, “it is no coincidence that in many European languages the word“ citizen ”has a common root with the word“ city ”. In the Middle Ages, it was within the framework of many cities that self-government developed, which gave their residents the right to manage the city in which they lived within the established limits . It should be noted here that the residence of a citizen outside his state does not entail the termination of citizenship: a citizen who is abroad enjoys the protection of his state.
It is known from the course of constitutional law that foreigners, stateless persons enjoy rights and perform duties on a par with citizens. But there are some features. So, foreigners can not hold certain government positions, elect and be elected. Although there are some exceptions. For example, in Part 1 of Art. 28 of the Basic Law of Germany, an addition was made to the fact that in elections in counties and communities, persons with citizenship of a member state of the European Union can be elected and elected [1. P. 22].
It is important, however, to keep in mind that the rights and freedoms of a citizen should not be confused with civil (personal) rights and freedoms that belong to every person.
Analyzing the issues of citizenship of foreign constitutions, it can be noted that in the texts they use such concepts as “every person”, “everyone”, “all”, “no one”, there are also impersonal formulas – “everyone is guaranteed freedom”. So, h. 1 tbsp. 35 of the Spanish Constitution states that “all Spaniards are obliged to work and have the right to work” [1. S. 30].
In the United Kingdom of Great Britain and Northern Ireland, there are differences between a British citizen (British Citizen) and a British nationality (British National) after the adoption of the 1981 Citizenship Act and the Hong Kong Act of 1985. According to these acts, British persons in Hong Kong have the right to reside permanently, to travel freely and return. They can enjoy all political, social, economic and personal rights even after Hong Kong’s transition to Chinese sovereignty. But in the UK, there is also a group of British subjects (British Subjects) who are not British citizens. (This group includes persons who arrived from Ireland before the adoption of the Act of 1949) But this category of persons has the right to freely come to Britain and acquire British citizenship in a simplified manner.
The US doctrine distinguishes between US citizens and nationals who live in the Virgin Islands and the associated states outside the continent (Puerto Rico). The administration of the United States equally protects those and others, but nationals cannot participate in elections to the US Congress.
For the American Constitution is characterized by the concept of “people”, but in some articles the term “citizen” is used. The preamble to the constitution says: “We, the people of the United States, in order to form a more perfect Union, establish justice, guarantee inner peace, provide joint defense, promote universal prosperity and consolidate the benefits of freedom for us and our posterity, solemnly proclaim and establish this Constitution for the United States of America. ” But in art. 4 dep. 2 states: “Citizens of each state are entitled to all the privileges and liberties of citizens of other states.” Amendment 14 to Sec. 1, adopted in 1868, states: “All persons born or naturalized in the United States and subject to the jurisdiction of these are citizens of the United States and the state in which they live …” [4. S. 587].
If in the constitution any rule affects the rights of a citizen, then the terms and phrases “citizen”, “citizen can”, “citizen has the right” are used. Sometimes the constitution refers to belonging to a particular nation. For example, in paragraph 2 of Art. 20 of the Basic Law of the Federal Republic of Germany states that all Germans have the right to resist anyone who tries to remove the existing system by force if other means cannot be used [4. S. 136].
Investigating the legal content of citizenship, one should agree with the reasonable judgments of N. V. Vitruk, who believes that citizenship acts as a phenomenon, on the one hand, an objective, and on the other – a subjective right. In the first case, citizenship is an institution of law, in the second, it is citizenship as a recognized (fixed) law of a person’s belonging to a particular state [3. S. 510].
It should be noted that foreign legislation may formalize the unequal position of certain categories of citizens. So, when in May 1787 in Philadelphia delegates to the Convention developed the first American Constitution, the governor of the state of Virginia E. Randolph said: “The main danger stems from the democratic articles of existing constitutions” (referring to the first constitutions of 13 states created on the basis of the former British colonies ). Connecticut delegate R. Sherman said: “The people should be allowed as little as possible to manage. People are always subject to delusions “[5. C 602].
Currently, in the US, there is an inequality in political rights between “born and naturalized citizens.” This is expressed in the fact that naturalized citizens do not have the right to run for the presidency. In France, naturalized citizens acquire voting rights only after ten years in the citizenship. Linguistic discrimination in the Baltic countries (especially in Latvia) can also be considered a form of national discrimination.
Thus, it should be considered that the most important legal prerequisite for the legal status of an individual in a society is the state of citizenship. Constitutional law associates a number of important legal consequences with citizenship. A person can be a subject of state-legal relations only having the legal status of a citizen of a country.
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