Our era is marked by profound conflict between two different conceptions of citizenship, and we can be certain that this conflict will increase. The first of these belongs to the Westphalian interstate order, and it is an exclusionary nationalist conception of citizenship; the second belongs to a post-Westphalian interstate order, and it is oriented in terms of a cosmopolitan ethic of human rights. I will argue here that the first conception forecloses issues of justice for people who attempt, as asylum seekers and refugees, illegally to enter countries. The second conception opens up an inclusive norm of global citizenship that would permit these issues to be defined and tackled by the international community.
The Westphalian interstate order originated in the Treaty of Westphalia which ended the Thirty Years War between warring European states in 1648. The Treaty became the basis of the principle of modern national sovereignty that evolved over the next three centuries. The Treaty concluded a hundred years of religious wars by making the sovereign of each state responsible for the subjects of that state. In international law that is based on Westphalian principles, these subjects are regarded as belonging to the sovereign's domain, and, in this sense, as part of the sovereign's property. In international law, the basic principle regulating relationships between states is that of `non-interference'. This means that another state cannot interfere in what is thereby constituted as the `domestic' affairs of a state referring as these do to how a sovereign conducted itself in relation to its subjects. The only context in which one state can call another state to account in how it treats people is if the latter mistreats subjects of the first state who are either temporarily or permanently resident in the second. On Westphalian principles, the status of persons is conflated with their membership of a state, and this poses problems for people who are unable to achieve membership of a state or who find the terms of their current membership to be antagonistic to their life, liberty and property.
Citizenship is the elaboration of societal membership in the form of the status of the person. The implication of the Westphalian principle of national sovereignty for citizenship is a simple one. Citizenship is an internalist project for the nation-state, and the historical development of the status of the citizen is domestic in character. In the first instance, the development or lack of development of citizenship was contingent on the will of the sovereign. It is for this reason that the fundamental issues of how the sovereign rules those subject to it, and how this sovereign is constituted came into sustained dispute in the modern era, and, the principle of democracy became the only legitimate foundation for sovereign rule. Democracy meant that national sovereign power was seen to derive its authority from `the people' by means of constitutional mechanisms that position the people in an authorizing relationship to the sovereign government of the nation. The most standard of these is representative government. The integration of democracy and the sovereign state occurred by means of the reconstruction of the sovereign's domain to become the shared social bond of citizenship in a particular nation. In this way, nationalism and popular democracy became overlaid on one another, and the exclusionism of a particular sovereign's domain was translated into the exclusionism of national citizenship.
While `the people' is an inherently nationalist idea, the constitutional principles of representative government and the rule of law do not have to be specified in terms of a national jurisdiction. From the outset of the development of the modern constitutional state, there was a fundamental tension between constitutionalism and plebiscitarian democracy. Whether `the people' is a custodian of constitutional government is doubtful at any time. …