Civil rights are a set of fundamental rights that enable individuals to exercise autonomy by protecting them from arbitrary intervention by the state (and other individuals). Civil rights limit what a state can do to an individual and also provide individuals with procedural rights that ensure that any potentially valid state action fulfils the impartiality criterion. That is, legitimate state action must conform to rules that ensure that individuals have a general right to defend their interests, including the right to have their cases tested under fair conditions while ensuring that the state minimises any necessary infringements. Civil rights embody the notion that individuals have a universal right to self-determination, which all states must respect and protect, and the idea that this applies as much to citizens as non-citizens.
Non-citizens are, moreover, entitled to civil rights in deportation cases. This follows from that deportation is analogous to other criminal cases, in that deportation cases are brought against persons who are suspected of breaching the law, and a negative outcome for the accused results in punishment. The penal nature of deportation is plain, as to be uprooted from one’s life, home, job, education and family clearly constitutes punishment. To deport, exile or banish a person as way of punishment is after all a longstanding tradition. Deportation has, moreover, historically been considered as one of the most severe forms of punishment available to the state, and was largely used as a way of handling dangerous criminals in the absence of prisons (Stimson 1953: 205-207). Madison concluded as much, well over two hundred years ago: “if a banishment of this sort [of a residing non-citizen] be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.” (Madison 1799)
The penal nature of deportation also means that states cannot simply add deportation to a sentence, or deport a non-citizen after she has served her normal sentence. To do so would mean that non-citizens were being punished more severely than citizens for a given crime, and this is a clear violation of the impartiality criterion. Criminals can, however, be deported in order to serve their sentences in the state that holds their administrative responsibility; as an
56 C o-nationals do, h ow ever, have this right on the com munitarian rationale but it should b e noted that a com m unity, largely, has the right to d efine w h o is a co-national.
alternative to that the offender serves the sentence within the jurisdiction where the crime was committed. A person can also be deported if she poses a risk to the community, but only if the harm caused to the individual by such deportation is proportional to the potential risk she poses.
In general, the more serious the crime and the less harm deportation will cause a given individual, the more appropriate as a means of safeguarding the public deportation becomes. Deportation is thus a valid instrument for preventing criminal activities in the same way that a court can impose restraining orders on relevant individuals to prevent criminal activity. What is important, from the cosmopolitan perspective, is that no one is punished twice, or more severely, based on lack of membership, and that individuals are not deported on grounds that do not relate to impeding future criminal activity on their part. This also means that deportation must be based on evidence, not mere suspicion, and conform to the due process of law, just as other penal procedures.
The fact that civil rights are basic individual rights means that the weak cosmopolitan perspective includes these rights among the universal rights that all individuals enjoy (King
1983: 530). Civil rights are part of the minimum rights required to live a basic autonomous life. Individuals who are .denied the right to free speech and conscience, barred from owning property, or not afforded protection from arbitrary intervention in person or property, are deprived of their basic ability to exercise individual self-determination. That said, non-citizens cannot be included in all civil rights on par with citizens. Non-citizens’ right to equality before the law must be restricted solely to those rights that are regarded as universal from the weak cosmopolitan perspective; to afford non-citizens full equal law protection would simply undermine the possibility of upholding any particular rights based on membership.
There could, furthermore, be exceptions to non-citizens’ inclusion in civil rights if one or several specific civil rights could be deemed not to be a basic prerequisite for the exercise of individual autonomy. The right to freely choose one’s profession can, for example, be restricted without undermining individuals’ basic ability to exercise autonomy, if and only if
some kind of employment or social provision is made available to all individuals (King 1983: 530). This kind of restriction is clearly not trivial, but it does not mean that it would encroach on the very essence of individuals’ right to self-determination as would restrictions on individuals’ right to self-expression. It is after all accepted that not every person will be able
to work in her profession of choice, due to qualities inherent in the person or restrictions imposed by the market or the state.
This is clearly sometimes perceived as a loss and causes much disappointment, but it is not perceived as a loss comparable to being denied the right to self-expression, to live with one’s family, to continue to live in one’s abode, or to protection against the arbitrary confiscation of individuals’ property. Strong cosmopolitanism takes it for granted, of course, that all persons should have a right to compete for jobs on an equal footing. It is an entrenched right that all citizens have in liberal states. There are, however, many rights that are entrenched for citizens in liberal states, and which are universal according to the strong cosmopolitan perspective, that are not essential to the right to exercise basic autonomy.