2. European integration, free movement and the sovereign state

The EU treaties recognize the right to free movement to every national of a Member State.Footnote ¹¹ Originally reserved to market actors, freedom of movement has in time, and through the jurisprudence of the European Court of Justice, evolved into a fundamental attribute of the status of European supranational citizenship. The legal, political and social implications of the citizens’ right to free movement have occupied academic writing for the best part of the last three decades.Footnote ¹² But what does free movement of persons say about the role of the sovereign state in the context of European integration?

In legal and political science literature, the reverse of this question has rather attracted attention. What does the changing role of the state say about the source and justification of the rights of free movers? Three distinct visions of the role of the state in the integration project offer a potential answer. In a first vision, the state is recreated at a new federal or supranational level, at which novel rights of federal supranational citizenship, in primis free movement, find their sourceFootnote ¹³ ; in a second vision, the state is superseded in favour of a form of ‘cosmopolitan federalism’, where supranational citizenship, and its annex rights such as free movement, can act as human rights enhancersFootnote ¹⁴ ; and in a third vision, the state is preserved, but repurposed so as to protect transnational rights of citizens that descend from the state’s participation in a horizontal community of accountability and recognition.Footnote ¹⁵ Free movement is, in this latter version, the first and foremost of these transnational rights. In all of these visions, free movement is treated as a signal of the changing role of the sovereign state.

This Article rather looks at free movement as a prompt of that changing role. In pursuing this line of enquiry the Article adopts as a starting point the same position as the third vision presented above: the state is not superseded in the context of European integration. It is preserved and repurposed.

This third vision emerges clearly from accounts that interpret the process of European integration from a perspective that combines a simultaneous commitment to cosmopolitan values and to the preservation of the sovereign state and its functions. Richard Bellamy refers to this perspective as ‘cosmopolitan statism’. In his words, cosmopolitan statism sees the ‘system of states as intrinsically linked to the promotion of cosmopolitan norms’.Footnote ¹⁶ While liberal intergovernmentalism in the context of European integration already embodies a thin version of this conception, Bellamy advocates a thicker version, which he refers to as ‘republican intergovernmentalism’.Footnote ¹⁷ The EU is best seen, and should be seen, as a republican intergovernmental association of states, in which organization at the supranational level remains under the shared control of the constituent polities – hence the state is preserved as the basis organization – but a principle of mutual concern comes to inform both interstate relations and relations between each state and the citizens of other states – whence the repurposing.Footnote ¹⁸ Kalypso Nicolaïdis, echoing the same confederal approach to EU interstate relations and the emphasis on mutual concern, sees in the EU the prototype of a demoicracy, a ‘union of peoples, understood both as states and as citizens, who govern together but not as one’.Footnote ¹⁹ While this union is committed to preserve the separate existence of its peoples in plural and to resist the trap of ‘oneness’, a principle of no-othering of cosmopolitan flare informs its ethos.Footnote ²⁰ It is this principle that calls for each of the participating peoples to think beyond the boundaries of their respective national places.

Demoicracy and republican intergovernmentalism trace a via media between the intergovernmental, the federal, and the supranational account of the integration process. In bringing forward the attempt to tame and model the exercise of sovereignty that represented one of the first prompts of European integration,Footnote ²¹ they echo a broader effort confronting political theory in the global era. This is the effort to propose a model of political organisation that accommodates the claims of state sovereignty, democratic closure, self-determination, and bounded self-distributive justice; and at the same time advances those of moral and legal cosmopolitanism: the equal moral worth of individuals, their deservingness of equal concern, and the equal weight of their rights claims regardless of citizenship.Footnote ²² Hence the preservation of the sovereign state as the fundamental unit for organization of governance and democratic participation, along with its repurposing to embrace cosmopolitan duties.

In spelling out these cosmopolitan duties of the state, both republican intergovernmentalism and demoicracy focus on duties of mutual concern and non-domination.

The imperative of recognition forms the basis of the demoicratic ideal, and in a broader perspective, of a cosmopolitan statist vision of Europe.Footnote ²³ As a mode of governance and a political principle, it constrains and redirects sovereignty in the EU, through forcing the sovereign state to acknowledge and internalize interests external to its immediate jurisdiction.Footnote ²⁴ The germane idea of non-domination guards against two equally threatening perils, the union itself engaging in domination, and the Member States exploiting integration as a cover for their own dominating agendas.Footnote ²⁵

Duties of mutual recognition and non-domination create a horizontal link between the governance structures and democratic accountability mechanisms of different nation states.Footnote ²⁶ Governance has to be exercised in each Member State taking into account the interests of the other ones; and institutions of government must account to their electors not only for the discharge of their internal duties, but also for the discharge of external duties that are owed to other Member States and their peoples.Footnote ²⁷

The right to free movement represents, in the republican intergovernmental as in the demoicratic visions of the EU, the very fulfilment of these horizontal links.Footnote ²⁸ In Bellamy’s account, supranational citizenship attaches to national citizenship a series of ‘international rights’ that can be claimed in a ‘horizontal’ fashion as against any of the states participating in the association. The right to free movement is at the same time the most prominent of these international rights, as well as a vehicle for many corollary ones.Footnote ²⁹ In particular, through the right to non-discrimination on the basis of nationality to which it is closely linked, it brings the duties of mutual respect and concern that operate among the Member States to bear directly on their citizens.Footnote ³⁰

Republican intergovernmentalism and demoicracy thus treat free movement, once again, as a symptom of the changed role of the state; and as a symptom, in particular, of the way that role changes through the assumption of novel duties towards other states and their citizens. They partly avoid a different question, which is instead central to the inquiry in this Article: how does free movement change not the relation between the state and the non-citizen, but the very relation between the state and its own citizens? How are duties of mutual concern and recognition of others sourced, justified, and implemented in the context of the latter relation?

In this respect, republican intergovernmentalism and demoicracy suggest that the costs and benefits of being part of interconnected peoples must be somehow internalized. However the dynamics that could govern this internalization, leading for instance the citizens to hold to account their governors also on behalf of the citizens of other Member States, remain under-defined.Footnote ³¹ Formulating a clearer hypothesis about these dynamics requires taking a step back to consider more closely how free movement alters the very status of citizenship, and the terms of the relation between the state and the citizen.

Free movement indeed is not only the expression of the duty of mutual concern among the Member States. It is an enhancement of the condition of the national citizen. The recognition to the citizen of a right to free movement implies that the citizen can choose to live his life, and his relation to the state of belonging, in a present and sedentary manner, or in a remote and migrant one. Citizenship thus assumes two possible configurations: that of the citizen–settler, and that of the citizen–migrant, who lives his condition of citizenship in a mobile way, interacting with the home Member State from the outside and from the perspective, in part, of a migrant.Footnote ³² The coexistence of these two citizenship configurations challenges the traditional association between sovereignty, citizenship, territoriality and settlement. Migration is normalized as part of the experience of citizenship.Footnote ³³

This forces in turn to problematise the role of the state in the context of migration. This role cannot just be that of a border guard and arbiter of inclusion and exclusion. The state must cater to the citizen–migrant, without compromising however its duty to protect the citizen–settler and her interest. How does the role of the state change then in light of this dual commitment? The idea of the social contract may help frame and address this question.

3. The social contract with the citizen–migrant

The idea of the social contract has long provided a theoretical frame to explain, legitimize, and perhaps also romanticize the role of the sovereign state and the relation between state and citizen.Footnote ³⁴ To be sure, no citizen has ever concretely signed a contract with their state of belonging.Footnote ³⁵ In social contract theory indeed the idea of the contract refers to the rationale of the relation between the state and its citizens.Footnote ³⁶ It is meant as a justification for the social arrangement that ties a citizen to their state, not as the concrete source or cause of that arrangement.Footnote ³⁷

In presenting his contractarian theory of justice, John Rawls for instance emphasizes that the social contract does not govern the decision to enter a given society or to adopt a particular form of government. The content of the original agreement are rather ‘the principles of justice for the basic structure of society’.Footnote ³⁸ In his view principles of justice that are justified as part of an original social contract are those that would be agreed to in a hypothetical initial situation of equality.Footnote ³⁹ In this hypothetical initial situation no one would know yet their concrete place in society, whether rich or poor, ill or healthy, settler or migrant. Thus, the principles of justice constituting the foundation of society would be the ones that could be agreeable to everyone ‘behind a veil of ignorance’.Footnote ⁴⁰

The idea of the social contract is thus deployed here as an aid to explore what principles of justice can be taken as foundational in a society in which mobility is a freedom for the citizens. Most conceptions of justice, whether formed behind this veil of ignorance in a social contract perspective or not, accept that society is premised on a measure of boundedness. In the famous words of Michael Walzer, ‘distributive justice presupposes a bounded world’.Footnote ⁴¹ And so do the interests in preservation of cultures and demographic equilibria.Footnote ⁴² Even the most prominent supporter of the idea of open borders recognizes that the idea is a way to advance our thinking through challenging some of its established tenets rather than a feasible programme in contemporary political arenas.Footnote ⁴³ It is well-accepted indeed that the sovereign state has the right to exclude. A world-wide system of border control implements this right. And through the tool of the passport the state detains the monopoly of its citizens’ mobility options through those borders.Footnote ⁴⁴ It is against this backdrop that our conceptions of justice are formed.

The EU system of free movement challenges some of these premises. It offers a model of social organization in which borders are open for the citizens of the Member States, movement is legally possible, and thanks to transport means and communication technology entails low transaction costs. Admittedly mobility options are unequally distributed, and the free movers are but a small percentage of the EU population. Nonetheless, the free movement model forces to reconsider, from a social contract theory perspective, the original hypothetical position of equality. It invites to question what expectations would change, and what principles of justice would be agreed to in an original position in which movement were unconstrained for the citizens, and no one knew yet whether their position in society would be that of citizens or non-citizens, of migrants or non-migrants. One could object that the European system of free movement is not a real original position: other than Rawls’s hypothetical initial situation of equality, it is not a situation of equilibrium or one in which people form their conception of justice behind a veil of ignorance.Footnote ⁴⁵ The system of free movement descends from a covenant that the Member States, as pre-existing social organizations in the exercise of their international sovereignty, have agreed among themselves and from which they can always withdraw.Footnote ⁴⁶ Nonetheless, the system created by that covenant is analogized here, as a thought experiment, to a Rawlsian original position. The assumption of free movement brings such a fundamental change to the system of international relations among the European states and their citizens that it ‘resets the clock’ in those relations and requires a reassessment of the moral sentiments on whose basis the basic principles of justice would be agreed.Footnote ⁴⁷

A first expectation that changes then, in this reset original position in which the citizen has a protected right to reside, exercise economic rights and political voice in another Member State, pertains to the very role of the state vis-à-vis the citizen–migrant. The figure of the citizen–migrant compels the state to recognize that its own citizens, as supranational citizens, have a claim to belong in several communities beyond the national one and can concretely exercise that claim through the right to free movement. And each citizen of a Member State, whether a settled or a migrant one, has to recognize, conversely, that her own condition of membership reaches beyond the borders of an individual Member State.Footnote ⁴⁸ Through this outward-looking mutual recognition, the promise of loyalty in exchange for protection that citizenship has embodied since medieval times is stretched in scope.Footnote ⁴⁹ On the one hand movement and distance cannot be taken as a proxy for lack or loss of loyalty. And on the other hand, the citizen–settlers and the citizen–migrants must be thought of as two distinct, but co-existing and co-obligated classes of stakeholders in the polity that the social contract with the citizen–migrant produces.Footnote ⁵⁰ And the state must be the agent of both groups of stakeholders.

At first sight agency for the citizen–migrant translates into a reinforced duty to protect the right to emigrate. The right to emigrate is well-recognized in international law.Footnote ⁵¹ However it requires little more of a state than refraining from imposing direct restrictions, such as denying a passport or requiring an exit visa.Footnote ⁵² By contrast, the duty to protect the citizen–migrant invests the home Member State with a central responsibility in the system of free movement. The home Member State is the first in line to enable, protect, and guarantee the condition of the citizen–migrant.Footnote ⁵³

This heightened responsibility is well-reflected in the varied home Member States’ obligations that descend from the Treaty rules on free movement. Overall, home Member States are under a duty not only not to restrict, but also not to discourage their own citizens’ free movement.Footnote ⁵⁴ This duty not to discourage pushes much further than a duty to just ‘let the citizens go’.Footnote ⁵⁵ The variety of positive obligations in which it finds expression is well-illustrated in the case law of the Court of Justice of the European Union interpreting Article 21 of the TFEU. Home Member States have to continue providing social benefits and civic allowances to citizens residing in another Member StateFootnote ⁵⁶ ; they have to issue them identity documents without imposing any domicile or residence requirements; in using these documents they have to adopt names as spelled in the Member State of residence. The duty to protect the citizen-migrants continues when they return home. Upon their return, home Member States have to recognize the experiences and qualifications they have earned abroadFootnote ⁵⁷ ; they have to take into account periods of child-raising completed in other Member States for purposes of calculating the amount of social benefits they are entitled toFootnote ⁵⁸ ; they also have to grant rights of residence to family members, whether EU citizens or third country nationals, with whom the citizen migrant has established or strengthened family life while in the exercise of free movement.Footnote ⁵⁹ Each of the above obligations is justified in the case law in view of not discouraging or penalizing the exercise of movement.

Not only does the home Member State need to not discourage the citizen-migrant from leaving and to support him upon return. It also remains the guardian and guarantor of the citizen–migrant throughout his experience of free movement. The case law on protection of migrant Union citizens in the context of extradition from a host Member State to a third country illustrates this aspect clearly.Footnote ⁶⁰ The European Court of Justice has found that a Member State that is requested to extradite a Union citizen residing in its territory to a third country has a duty to consult the home Member State of the relevant citizen before deciding on that request. Once informed, the home Member State can decide to bring the citizen home for prosecution via a European arrest warrant.Footnote ⁶¹ In the context of national legislation that protects nationals only from extradition, this duty of cooperation between host and home Member States ensures the equal treatment of Union citizens who are exercising free movement while avoiding the risk that a criminal offence may remain unpunished.Footnote ⁶² Exposure of migrant Union citizens to extradition from a host Member State amounts indeed to discrimination in comparison to nationals of that state that are protected from extradition given similar circumstances. The threat of such discrimination may inhibit free movement.Footnote ⁶³ While the potential discrimination depends in these cases on the host Member State and its legislation, the Court has entrusted the task to work around it and ensure that free movement remains unhindered to the home Member State. This vindicates the role of home Member States in the context of free movement. The literature that has looked at the role of home Member States has framed this role mostly in emancipatory or remedial terms. Free movement emancipates the citizen from the home Member State.Footnote ⁶⁴ However the home Member State remains responsible for its citizens in the ‘pathology’ of free movement. It has to foot the social bill for its citizen–migrants who do not meet the financial conditions to reside in a host Member State. And when the ‘genuine substance’ of supranational citizenship is in question, it is the first in line to protect that of its own nationals.Footnote ⁶⁵ Part of the literature links this role of the home Member State to the re-emerging primacy of national belonging over national citizenship.Footnote ⁶⁶ The insufficiency of that status as a fundamental one, and its inability to fully equalize the condition of the migrant to that of the citizen in a host Member State, forces, from this perspective, a remedial role on the home Member State. Unravelling the social contract with the citizen–migrant yields a different perspective. Within the frame of that contract the role of the sovereign state shines as that of enabler of mobility and protector of its citizens abroad.

This role of the state as protector of mobility may appear less novel than it sounds. The active creation of opportunities for citizens across borders is not new state practice, it is a well-tested one that dates back to the age of empire. Already in 16th century England, emissaries of the crown were busy negotiating privileges for the nation’s merchant companies in the lands of the Ottoman Empire.Footnote ⁶⁷ And between the 17^th and 18^th centuries the ranks of the East India Company provided a reliable route to wealth for adventurous British nationals.Footnote ⁶⁸

What is more, part of the literature on citizenship and migration emphasizes how citizenship in the 21^st century has become precisely a ticket to mobility.Footnote ⁶⁹ In a global world, a citizen’s options for international mobility are correlated to the heft of the passport that the state issues to him.Footnote ⁷⁰ The strongest passports in the global ranking of mobility options allow visa free travel to hundreds of countries.Footnote ⁷¹ The passport of a EU Member State does not only allow travel, it entitles the holder to reside and work in any of the 27 Member States in the Union. Particularly in countries outside the western world, people who have the option to acquire a second citizenship do so as an ‘insurance policy’ and as a guarantee of a future mobility option.Footnote ⁷² It may thus appear that, albeit in different guises, the role of the state has always been that of dispenser and protector of mobility options.

However, in this traditional version, exercised first through the sponsoring of its nationals’ ventures abroad, and then through the monopoly of the issuance of passports, that role is sensibly different from the role of the state as enabler of mobility in the European social contract with the citizen–migrant. Protection of movers and movement is, in each of the above examples, the expression of a state-controlled privilege, not the expression of a freedom of the citizen. For the 17^th and 18^th century state nationals abroad were a proxy for national interests. Merchants and explorers were the ambassadors of the state in a burgeoning system of world trade. For the 21^st century state the issuance of passports is the expression of a state monopoly, that on the citizen’s mobility options.Footnote ⁷³ And the very holding of this monopoly speaks to the nature of national citizenship as a marker of settlement. Only citizenship, and the passport that is its tangible manifestation, guarantee security of status in a state and the unhindered possibility to return to it from every corner of the globe. The use of citizenship as an ‘insurance policy’ for future mobility options does nothing but confirm this role of citizenship, and of the state. Citizenship is used as a stepping stone to establish a relation with a new state, a relation that can be useful in the case of a shortfall in the relation with the original state of belonging. In establishing the second relation the traditional sequence of migration is reversed: citizenship of the destination state comes first, migration to that state comes next. But the substance is unaltered: migration requires a destination state’s authorization to settle, and citizenship represents that authorization. What some of the literature has described as a ‘ticket to mobility’ is thus best described as a pre-authorization to resettlement.Footnote ⁷⁴ It confirms a conception where mobility is a state-controlled privilege.

By contrast, in the European social contract with the citizen–migrant citizenship is a veritable ticket to mobility. The right to move and reside in any of the Member States becomes an inherent right of national citizenship, whose safeguarding and protection is entrusted, in the first instance, to the home Member State. The citizen’s ability to move elsewhere does not depend on the authorization, whether ex ante or ex post, of another state. It depends on the very nature of the state-citizen relation, and on the framing of mobility as a citizen’s freedom. It is this latter aspect that truly transforms the role of the EU sovereign state in respect to mobility from that of border guard and monopolist to that of agent for the citizen’s freedom.

This state’s agency however is not only targeted to the citizen–migrants. The social contract with the citizen–migrant has, to maintain contract terminology, a further party in the citizen–settler, and a third-party beneficiary in the non-citizen migrant. What expectations and duties in respect to these latter two categories would be agreed to then in an initial situation of equality in which movement is a protected freedom but no one knows yet whether their place in the state will be that of citizen–migrants, citizen–settlers, or non-citizen migrants?

4. The citizen–settler and non-dominating free movement

The literature that has looked at free movement from the perspective of those this Article calls the citizen–settlers tends to highlight a contrast of interests between the migrant and the non-migrant among the citizens. In accommodating the interests of intra-EU migrants, the argument from the relevant perspective goes, free movement diminishes those of citizen–settlers. This is an argument that has different facets and several possible ramifications. From a first legal facet, the argument has led to treating the settlers as ‘outsiders’ to EU free movement law: reversely discriminated in their own states in comparison to the migrants, and falling out, bar for exceptional circumstances, of the protective umbrella of supranational citizenship.Footnote ⁷⁵ From a second critical facet, the argument frames the migrant as the ‘atomized individual’ par excellence, a self-centered citizen that in the twists and turns of EU integration has lost the sense of commitment to a community of belonging.Footnote ⁷⁶ This facet of the argument echoes a negative conception of cosmopolitanism in the EU arena, whereby the cosmopolitan citizen is an unattached and indifferent one. At the extreme, he is a ‘citizen of nowhere’ who does not recognize any community as his own and does not feel a sense of obligation to any.Footnote ⁷⁷ This self-centered citizen–migrant, turning to yet another facet of the argument, threatens the citizen–settler by eroding the cohesiveness of their communities and by forcing open the logics of boundedness that govern redistribution within those communities.Footnote ⁷⁸ Here the argument echoes the communitarian and liberal nationalist perspective in the debate across philosophy and political theory on whether borders should be open or closed: whether from a redistributive or democratic perspective, free movement, in loosening the bonds of national belonging, ultimately threatens national communities in their efforts at self-determination.Footnote ⁷⁹

The republican intergovernmental and the demoicratic accounts of the EU share in the concerns expressed from this latter perspective. Borrowing Rainer Bauböck’s terminology, Bellamy warns of the need to ensure that free movement respects the ‘circumstances of citizenship’, that is ‘the existing world of bounded polities within which issues of political membership arise’.Footnote ⁸⁰ Nicolaïdis refers to the difficulty of getting mutual recognition right in a space of free movement that is ‘fundamentally defined by juxtaposed places, places with boundaries which are altogether political, jurisdictional, or regulatory, as well as redistributive’.Footnote ⁸¹

Even if empirical studies contradict the idea that intra-EU migrants pose a threat to recipient societies,Footnote ⁸² the perception of the citizen–settler as left-behind, and the growing suspicion towards the citizen–migrant, have fuelled a backlash against free movement.Footnote ⁸³ Politically, this has had a central outlet in the Brexit process, but can also be related to the nationalist and populist turn of the liberal state in Europe.Footnote ⁸⁴ In the scholarly response, this has prompted the justification of a conditional vision of free movement, whereby the latter must be subject to clear limits and requirements, and it has encouraged a certain disenchanted view of the role of free movement in the context of the project of Union citizenship.Footnote ⁸⁵

The republican intergovernmental and demoicratic accounts recognize and endorse the need to subject free movement to limits in the interest of the citizen–settlers and their bounded communities.Footnote ⁸⁶ These limits are mostly conceived as limits to the duties of mutual recognition of host Member States, and as limits that descend from agreements reached among the representatives of the Member States at the supranational level.Footnote ⁸⁷ Neither account interrogates in depth the duties of home Member States to the citizen–settlers or the terms of the relation between citizen–migrants and citizen–settlers. Nicolaïdis clearly acknowledges the issue – she sees the EU as ‘a contingent, fluid, and contested contract between nomads and settlers, between the logic of space and the logic of place’.Footnote ⁸⁸ However she does not elaborate on what this contract requires within the domestic polity of each Member State. Bellamy goes one step further in referring to the duty of the Member States to secure a condition of non-domination both within and between their peoples.Footnote ⁸⁹

This idea of non-domination resonates also from the social contract perspective. In an initial position where movement is free and no one knew whether their place of citizenship would be that of settlers or that of migrants, everyone would agree that each class ought to be free from domination on the part of the other. But what does non-domination concretely require on the part of the state, and on the part of the citizens?

Seen through the republican lens of non-domination, freedom requires non-subjection to arbitrary alien control.Footnote ⁹⁰ This is a more demanding conception of freedom than the liberal one based on non-interference. If freedom of movement from a non-interference perspective requires both a positive right to move and a negative right not to move,Footnote ⁹¹ from a non-dominating perspective it must go beyond this positive and negative aspect.Footnote ⁹² One can be free to enjoy his rights and interests without interference, but still be subject to domination if the availability of those interests depends on the arbitrary will of another.Footnote ⁹³ Being free, from a non-dominating perspective, means indeed not ‘being subject to the potentially capricious will or the potentially idiosyncratic judgement of another’.Footnote ⁹⁴ This may appear too demanding of a conception to inform the relation between the citizen–settlers and the citizen–migrants. The typical relation of domination is that binding the master and the slave.Footnote ⁹⁵ The concept thus requires some adaptation. It is intended here in the sense that neither group ought to be able to acquire a position of legal or political dominance, enabling it, through abuse of that dominance, to displace the interests of the other side. Thus, the intended non-domination places obligations both on the home Member State that is the agent for both classes of citizens, and on the citizens themselves. Home Member States have to ensure that free movement is for all citizens a free choice. Free movement must be on the one hand unimpeded and untaxed, in line with the Treaty-based obligations that have been discussed earlier. But on the other hand the home Member State must be a hospitable place where the citizen can find fulfilment of his or her educational, personal and professional aspirations. Only in this way the choice to inhabit the settler or the migrant side of the citizen divide can be a genuinely free one. In concrete terms, this requires three types of duties on the part of home Member States. First, it must mitigate the factors that can prompt movement as a forced choice. For instance, it must correct shortfalls in the social assistance and healthcare systems. To be clear, this does not mean eliminating all incentives to move on grounds of living in a Member State with a different social security or healthcare provision system. Citizens may genuinely have preferences for different recipes of state and service organization and may legitimately wish to contribute to a differently organized welfare system. This is an inherent consequence of open borders among Member States who retain autonomy in their fiscal and organizational choices. But home Member States ought to fix the faults in their systems of social and healthcare provision that rather than prompting movement out of choice, force it out of concern for not being able to access the services one needs at home. Second, home Member States must support the active exercise of free movement resulting from the un-interfered choice to pursue personal or professional opportunities in other Member States. This is in good part through the discharge of the various enabling obligations identified in the case law and examined earlier in this Article. Third, where movement is prompted by disagreement on divisive ethical issues, for instance access to abortion, euthanasia, or surrogacy, home Member States must support the choice of the movers but also promote democratic confrontation on relevant issues so that they be addressed not only through the exit of the citizen–migrants, but also through the voice of both the citizen–settlers and the citizen–migrants.Footnote ⁹⁶

This very last aspect links the duties of the state and those of the citizens. Non-domination between citizen–settlers and citizen–migrants requires that both groups treat free movement as a collective good and exercise their rights of participation with a view to protecting both its negative and positive side. Where the choices of citizen–migrants reflect societal divisions on ethical or economic choices, free movement creates an opportunity for debate that both citizen–settlers and citizen–migrants ought to embrace.Footnote ⁹⁷

On the part of the citizen–migrants, the non-dominating coexistence of citizen–migrants and citizen–settlers requires in addition that they embrace their duties to the citizen–settlers of the Member State in which they live as non-migrant citizens. The idea that a non-dominating conception of free movement requires duties on the part of the migrants is not new, and is in part intuitive.Footnote ⁹⁸ Relevant duties, from a non-domination perspective, include not only the duty to pay taxes and respect the laws, but also a softer duty to respect the boundedness of the host community, through for instance approaching its language and culture with curiosity, and the interests of its citizen–settlers with consideration and respect. This latter duty has no firm legal source. It is rather an expectation inherent in the nature of European free movement as a right that enables citizens to articulate their lives across different bounded ‘places’,Footnote ⁹⁹ on the understanding however that they remain committed to preserve these places’ distinct identities, and political and social systems.

Exploring the terms of the social contract between citizen–settlers and citizen–migrants ultimately advances the republican intergovernmental and demoicratic accounts in three respects. First, it shifts the focus of attention from duties of host Member States to those of home Member States and their citizens, and from limits to free movement implemented at the supranational level to protections and safeguards for citizen–migrants and citizen–settlers negotiated and enacted at the domestic level. Second, it adds clarity to the demands of non-domination within the domestic frame of each Member State. Third, it begins to shed light on a peculiar dynamic for the internalization of the costs and benefits of being part of interconnected peoples. This dynamic relies on the indirect effects of advancing one’s own interests: in ensuring that movement remains an authentic choice for its own citizens, each Member State also acts indirectly for the benefit of other Member States. Maintaining free movement as a non-compelled choice entails indeed removing the incentives for benefit-driven or otherwise mass movement of the type that could bring a burden to the polities of other Member States. These indirect effects of advancing the interests of one’s own are even more prominent when one applies this logic to the duties of Member States as host to non-citizen migrants.

5. From the citizen–migrant to the migrant as citizen

The duties that host Member States owe to non-citizen migrants are an important testing ground for the question of how free movement changes the role of the sovereign state. They are in particular an important testing ground to understand to what extent free movement spins that role in a cosmopolitan direction. Non-citizen migrants are indeed ‘others’ to the sovereign state, and outsiders to the boundaries of the social contract.

Free movement splits this class of ‘others’ to whom a Member State may owe responsibilities as host into two: second-country nationals, that is nationals of another Member State who as Union citizens benefit from free movement rights; and third-country nationals, nationals of a country that is not a member of the EU.

The fundamental duty that host Member States owe to second country nationals in EU law is a duty of non-discrimination on the basis of nationality. This imperative of equal treatment regardless of the Member State of belonging is a general principle of EU law and governs all its areas of application.Footnote ¹⁰⁰ In the context of the right to free movement, it grounds the entitlements of migrants in a host Member State. For migrant workers, it protects the right to pursue opportunities of employment in a host Member State on the same terms as nationals and to benefit from the same work conditions.Footnote ¹⁰¹ To migrant citizens more broadly who lawfully reside in a Member State other than their own it guarantees equal treatment in respect to a wide range of benefits and services.Footnote ¹⁰²

Non-discrimination on the basis of nationality has inspired an early residence-focused account of the rights of second country nationals in the EU. In the words of Gareth Davies, residence was to be the ‘new nationality in the EU’.Footnote ¹⁰³ The intra-EU migrant is entitled to live in a citizen–like fashion ‘anywhere he hangs his hat’ within the Union, accessing the same benefits and services that are available to citizens, and also continuing to receive the benefits and to practice the identity of a Member State of belonging. Over the years, this residence model has gradually ceded ground to an integration one. Citizen–like treatment for the second country national in a host Member State presupposes the establishment of a genuine relation of belonging within that state, proven through length of residence, family life and overall social integration. The European Court of Justice has been looking for genuine links to a host Member State as a prerequisite for the equal treatment of migrant Union citizens for a long time.Footnote ¹⁰⁴ But in its most recent case law, the loose search for those links has ripened into a strictly conditional reading of the very right to reside in a host Member State.Footnote ¹⁰⁵ Widely read as a ‘regressive phase’ in the Court’s treatment of Union citizenship, this has strengthened an integration-based understanding of the position of second country nationals in the host Member State.Footnote ¹⁰⁶ In line with a reading of Article 21 of the Treaty on the Functioning of the European Union (TFEU) on the right of citizens to move and reside as a norm intended to ‘promote the gradual integration of the Union citizen concerned in the society of the host Member State’,Footnote ¹⁰⁷ the second country national can claim citizen–like treatment where not only he hangs his hat but where he also organises his wardrobe.

Duties that host Member States owe to third country nationals under free movement law are more limited. They are aimed at protecting rights that are not autonomously held by the third country national, but rather derive from the exercise of free movement on the part of a Union citizen family member.Footnote ¹⁰⁸ The rationale for their protection is that the Union citizen would otherwise be discouraged from exercising his or her right to free movement.Footnote ¹⁰⁹ Even when third country nationals, in some exceptional situations, are protected under EU law in the absence of an exercise of free movement, this is justified in the case law by the intrinsic connection between the situation at hand and free movement.Footnote ¹¹⁰ Third country nationals are otherwise extraneous to the benefits of free movement and subject to a mixture of national and EU immigration law.Footnote ¹¹¹ Through upgrading the condition of second country nationals in host Member States, free movement has thus the perverse effect of drawing an even larger wedge between the condition of the citizen and that of the third country national other.Footnote ¹¹² If free movement is part of the toolset through which EU Member States ought to embrace cosmopolitan values of regard for others, it appears in this respect an imperfect tool at best. Its association to citizenship has rather highlighted the bounded character of the European imperative of no-othering, and thus the limited reach of European cosmopolitanism.

The demoicratic and intergovernmental accounts do little to clear the record of European cosmopolitanism in this respect. The norm of other-regardingness to which they point has undefined scope and uncertain dynamics. Bellamy explicitly limits the reach of other-regardingness to second country nationals, suggesting that in an association of sovereign states the associational duties of states translate into duties of mutual concern and respect towards each other’s citizens.Footnote ¹¹³ Nicolaïdis broadens the lens. Recognition in a demoicracy ‘implies that when a country takes its decision democratically, enough people remind everyone else of the obligation to ensure that ‘foreign’ identities and their interests are taken into account’.Footnote ¹¹⁴ Neither account however fully explains the source or operation of these obligations of mutual concern, whether towards second- or third-country national others.

Reconsidering these obligations from the perspective of the social contract with the citizen–migrant points once again to the indirect effect of self-interested behaviour. As a preliminary step, one has to question here how the non-citizen migrant, the second country national one for present purposes, enters this social contract in the first place. Why would anyone in the original position be concerned about what justice requires in respect to non-citizen migrants? The answer is that they enter the social contract, to some extent, as a lateral party. The citizen–migrant in a given Member State is necessarily a non-migrant citizen in another Member State. The non-citizen migrant is in other words the alter ego of the citizen–migrant. When a citizen–migrant looks at the incoming non-citizen migrants in his or her own Member State, he or she sees his or her own position in another Member State. In embracing a concern for their position, he or she is indirectly embracing a concern for his or her own position. The position of the non-citizen migrant in a host Member State is ground, from this perspective, in reflexivity. The term reflexivity captures, here, a situation where duties undertaken for the benefit of the other reflect back to advance the position of the one. This reflexivity operates both in respect to citizens, and in respect to Member States.

The citizens, in protecting the interests of the incoming non-citizen migrants, indirectly protect the transnational possibilities of their own citizenship. In treating incoming non-citizen migrants according to the norms of recognition and mutual concern, and in exercising political voice to hold their respective states to account for treating the non-citizen migrants in accordance with the same norms and for internalizing foreign interests in their deliberative processes, citizens act to insure their own possibilities as potential migrants. They act in conformity with the multilateral expectations of a system of open borders in which migration is protected as part of the citizen’s experience.

As to the Member States, the reflexivity is between their role as home to citizen– migrants and their role as host to non-citizen migrants. Their obligations as host to inbound non-citizen migrants can be seen as the flip side of their obligations as home to potential or actual outbound ones. In accommodating nationals of other Member States within its borders, the state protects the status of its own citizen–migrants. It acts in part out of an expectation that other Member States will do the same and accommodate its own nationals. If replicated by all the state participants in the multilateral system of citizens’ mobility, this unilateral accommodation of others driven by the expectation of a reflexive benefit is one of the strongest possible guarantees of the implementation of the duties of mutual recognition and concern. In discharging its obligations as host, a Member State fulfils its duties as home. Reflexivity has thus some elements in common with reciprocity: as in the case of reciprocity, state and citizen duties to others are motivated in part by the expectation that another state or its citizens will accommodate the interests of the acting state and its citizens. This expectation is however of a non-binary nature, other than in reciprocity in its traditional meaning: the expectation of a benefit in return is not directly addressed to the state whose non-citizen migrants are being hosted or to its citizens. It is rather the shared nature of citizenship in a system of free movement as embracing both citizen–settlers and citizen–migrants, and the shared role of the state in this same system as agent of both groups that justifies this expectation.Footnote ¹¹⁵

The reflexivity argument faces the objection that it only captures the interests of the citizen–migrants, and of the Member States as agents for the citizen–migrants. However in the original position in which citizen–settlers and citizen–migrants would agree on the principles of justice governing a system of free movement, including the reflexivity principle, no one knows yet whether their destiny is that of citizen–settlers or citizen–migrants, and whether that of Member States that are primarily home to citizen–migrants, primarily home to citizen–settlers, or primarily host to non-migrant citizens. Not only, in the social contract described in these pages, and based on a conception of movement as free and non-dominating, freedom to move belongs to the citizen–settler as to the citizen–migrant. It is part of the citizenship heritage of both. The decision to exercise it in a negative or positive way is a contingent one, and one that can change along the course of a citizen’s life. Hence all parties to the contract share an interest in preserving the system that it governs, and its functionality.

The reflexive perspective on the obligations of both citizens and Member States does not necessarily alter the quality of obligations owed to second country national non-citizen migrants. These remain state obligations to grant them entry, residence and equal treatment. And citizens’ obligations to hold the state to account accordingly. Reflexivity however adds strength to the rationale for their discharge on the part of both states and citizens. The discharge of relevant duties that tends to be described as a burden on the shoulders of citizens and states in political narratives is recast under a partly self-serving light. Reflexive protection of the citizen’s status as a potential migrant comes to complement residence and integration as a rationale for the accommodation of second country nationals in a host Member State.

But what about third country national migrants, who as seen above, are not party to this reframed social contract, if not in a marginal manner as family members of Union citizens. Can the reflexive perspective on the rights and status of non-citizens also benefit their condition? In this respect, the argument could at first sight cut both ways. From a first angle, reflexivity may appear to link the status of the other even more firmly to the condition of the citizen. The migrant other is owed duties to the extent that a correspondence can be drawn between his condition and that of the citizen. From this perspective the argument might appear to reinforce the wedge that already exists between the status of Union citizens and the status of third country nationals.Footnote ¹¹⁶ However reflexivity is distinct from reciprocity. Reciprocity justifies duties owed to second country national migrant others on the basis that they are also nationals of an EU Member State. Host Member States accommodate second country nationals out of a reciprocal expectation that their home Member State will offer the same treatment to their own citizens. As nationality is the commonality between first and second country nationals on which the reciprocity argument ultimately draws, it singles out third country nationals. Reflexivity instead justifies duties to migrant others on the basis that their experience of migration reflects a possible experience of the citizen. The status of migrants, actual or potential, is the commonality between citizens and others on which reflexivity draws. The reflexivity logic thus embraces third country nationals. The condition of the migrant, or more precisely the condition of being a citizen in the exercise of migration, is one in which third country nationals at the doors of Europe share.

Some have envisioned or auspicated a spill-over from the dynamics of free movement to those of migration.Footnote ¹¹⁷ That spill-over has however so far not occurred. On the contrary, a reverse spill-over of narratives of resistance and hostility to migration has rather occurred from the domain of immigration from third countries to that of intra-EU free movement.Footnote ¹¹⁸ The reflexivity argument lights a potential, disregarded, alternative path towards a positive spill-over. This path passes through the enlarging of the sphere of the citizen through the possibility of migration. Embracing the opportunities of the citizen– migrant requires indeed, by reflexion, adopting an aptitude of acceptance towards the claims of the migrant other.

This puzzle of duties that free movement engenders, directed to others for the benefit of the state and citizen’s selves, ultimately frames the state cosmopolitan duties from the internal perspective of the citizen, and of the citizen–state relation.Footnote ¹¹⁹ Not in the sense, as the statist cosmopolitan position would have it, that the state’s political community is the agent of a broader cosmopolitan project.Footnote ¹²⁰ And not in the sense, as a certain vision of internal cosmopolitanism purports, that life is delinked from place and withdrawn from the public.Footnote ¹²¹ Rather in the sense that the ‘unfinished moral business of the sovereign state’ comes to be finished from within.Footnote ¹²² It is to advance the interests of the citizens in a reality of interconnected sovereigns that the state has to cater to the ‘other’. And free movement is the very tool through which the state embraces this cosmopolitan role from within. The addition to the findings of the republican intergovernmental and demoicratic account is a simple but powerful one: the duties that implement the European imperative of no-othering, mutual recognition, mutual concern, and non-domination begin within the very relation between the state and the citizen. They are ground in the very duty of the former to protect the latter, in exchange for his loyalty, in concretely benefiting from the canvas of options that he or she has available in a system of free movement.

6. Conclusion

The social contract with the citizen–migrant, as explored in these pages, ultimately adds but a simple qualification to the relation between state and citizen. The qualification reads more or less like this: ‘the citizen is not necessarily settled within the state’. No good lawyer would be fooled. An apparently unremarkable edit can subvert an entire contractual relation. In this case, through that edit, citizenship that was the insignia of settlement becomes the beacon of mobility as freedom. This does not mean that only migrants have rights, or that they owe no duty to the settlers. And it does not mean that the rights of the settlers take precedence over those of the migrants. It means that citizenship can be lived as a sedentary, or as a migrant condition. Both conditions are legitimate and the choice between the two should remain open. This novel understanding of the relation between citizenship and mobility has two important implications. The first is in respect to the role of free movement in the context of the cosmopolitan turn of the European state. The second is in respect to the nature of this cosmopolitan turn.

In the first respect, free movement, in reshuffling the relation between citizenship and mobility, becomes the very prompt for the European state to embrace a cosmopolitan commitment. It stretches the state-citizen relation extraterritorially, bringing within its purview, by reflection, several classes of ‘others’. It gives a cosmopolitan spin to both the condition of the citizen and the role of the state. As to the citizen, it offers a lens on what it means for the citizen to be ‘globally concerned’.Footnote ¹²³ As to the state, free movement contributes to clarifying its cosmopolitan role by linking, through a norm of reflexive recognition, its obligations to the non-citizen migrant to those owed to the citizen–migrant.

In the second respect, free movement commits the European state to a kind of cosmopolitanism-from-within: the embracing of a cosmopolitan ethos of mutual concern and respect comes in part from the reconfiguration of the very internal relation between the state and the citizen. Duties to others are a corollary of the novel duties of agency that take shape in that relation.

This cosmopolitanism from within entails a promise and a risk. The promise is that cosmopolitanism, in this inside out version, starts from a premise similar to that of nationalism and statism: citizens first. A shared premise may not suffice to win the nationalist and statist to the cause of cosmopolitanism, but it may help engage them in dialogue. Grounding freedom of movement in that very premise inspires a reconsideration of the contrast between the condition of the settlers and the condition of the migrants as historical, contingent, situational, bringing reflexivity in yet another direction.

The risk is that a vision of the other that starts from a reflection of the self could reframe the no-othering imperative in utilitarian terms, ultimately corrupting the moral norm of equal concern that lies at the basis of cosmopolitanism. That risk would concretize if reflexive recognition boiled down to a further endorsement of the self-centered citizen of Europe, whose autonomy is enhanced by the process of integration at the expense of the values of community and belonging, and whose political engagement is replaced by a ‘radically private life’ completely withdrawn from a logic of place.Footnote ¹²⁴ But cosmopolitanism from within starts precisely from place. It is premised not only on the equal moral worth of individuals, but also on the equal worth of places. It follows that each national place is not only a point of station, but also potentially a point of transition, and what happens in one place is liable to have implications for what happens in the others. In the context of this fluidity and interdependence, the citizen turns to the other belonging to a different national ‘place’ not just because it is in his or her self-interest and not because he or she lives as a foreigner at home.Footnote ¹²⁵ Rather, the citizen turns to the other as he understands that in order to fully live his citizen’s condition he has to be able to empathize with the foreigner. In a society in which mobility is a way to live the citizen’s condition, the status of the other becomes a very aspect of the citizen’s status.

Ultimately the social contract between the state and the citizen–migrant challenges the unholy alliance between negative cosmopolitanism and exalted statism. It shows a way to build a more fruitful collaboration between the cosmopolitan and the statist ideal. This collaboration endorses neither the populist story that depicts the state as the citizen’s shield against the foreigner, nor the various strands of post- and supra-nationalism that would sever or weaken the national dimension of the state-citizen relation. It relies on a different vision of national citizenship and of the state. In this vision, citizenship, like the image of a passer-by in the hall of mirrors at Versailles palace, appears enmeshed with multiple other ones.Footnote ¹²⁶ To each of those other citizenships it owes something, and from each of them it gains added strength and purpose. As to the state, its agency for one those citizenships ultimately mirrors into its agency for the other ones.