In previous post I tried to show that the famous tripartite classification "of the rights of foreigners that once established the Constitutional Court and is now repeated as a litany in academic articles and judgments apparently is a correct theory, but very weak in theoretical terms. In fact, not even useful to properly understand TC's own statements in which states, since in reality the Court is not consistent with their own principles (fortunately). I think therefore that we need to go changing the theoretical framework. Not necessarily to question the decisions already issued by the TC on the constitutionality of the immigration law (the theoretical framework must be consistent with decisions taken), but to make it easier to build a conscious and thoughtful decisions future. Even though my capacity is limited, I am of the opinion that someone who criticizes something has to propose alternatives, so here goes my attempt, which is a Balm Gilead, nor intended, but you could indicate a direction you look.
1 .- All constitutional rights are inherent to human dignity , in the context of the modern world, everyone from the right to life to the right to social security are included in the Universal Declaration Human Rights and multilateral treaties in the field and are therefore positively recognized worldwide. Some are universal human interests, common to all places and times (for example, the right to physical integrity), while others are instrumental, and only make sense in today's world as collateral for these other commodities (eg effective remedy), but all are necessary in order to affirm human dignity in the context of today's world. Perhaps in the future have to invent other rights, but, today, struggle to realize the contents of the Declaration is the best way to assert the universal value of human dignity
.
2 .- No right is unlimited so
all constitutional rights have limits. The limits to constitutional rights should be directed fairly
a constitutionally legitimate purpose
(ultimately, the rights of individuals are limited by the rights of others) and
effects should not be disproportionate . Thus, no rights can be divided into three compartments which pretends not to assess the intensity of recognition, what matters is not put to rights in these imaginary groups, but to determine what are the conditions of access and what are the limits to exercise.
3 .- The level of recognition of constitutional rights in a given system is a point of balance between the ideal
community of peers and structural needs power configuration (already discussed here some time ago
tension between communitas and structure universal trait of human societies.) The power is legitimate or justified in securing a range of goods or rights to members of the community and at the same time, by their nature, condition or limit these rights to some extent. When this balance is broken away the legitimacy of power. As Uncle Ben said the
, "with great power comes great responsibility."
4 .- The ideal of community is overall equal universal. To the extent that multiply contacts between different societies and increasing interdependence, are constructed ideologies (from the Humanitas
of the Stoics to Universal Declaration of Human Rights) that starts from the universal recognition of human dignity, theoretically postulate the universality of the human community. 5 .-
This cosmopolitanism contrasts with the lack of "Cosmopolis." In today's world and in practice, power coalesces
primarily within nation-states. Certainly, there are other forms of power framed in the state and, moreover, transnational structures are taking shape along the lines of the expansion of markets, but it is clear that states are still the basic unidadpolítica.
6 .- space power and responsibility of nation states is limited. The states exercise power over people is justified in guaranteeing rights for these same people. Any State has no responsibility over all the inhabitants of the planet at the same time, since, in practice, not all people are within the area of \u200b\u200binfluence of state power. Thus, for example, "all humans are entitled to Social Security, but that does not mean that any state has the responsibility to ensure that right for any person on the planet.
7 .- A State is a power structure that claims the monopoly of violence in a given territory (And does it give credibility to some extent). The modern nation-states are set to build, maintain, monitor and play the markets' national 'in underpinning the livelihood of members of companies' market. " Moreover, the legitimacy of the more developed states, requires, first, that the power exercised is relatively controlled by citizens (through the mechanisms of liberal democracy), on the other hand, to lay down a series of social rights to correct social dysfunction caused by the centrality of the market for subsistence and welfare. So
people connect with the state power that basically governs through four dimensions of power and responsibility of the state: a) the territory, b) the market and regulation, c) the welfare system and d) the control of political power. The first two are spheres of influence (power) and the other two are requirements for the legitimation of power exercised (responsibility).
8 .- People who a priori are completely out of the four dimensions of state usually are linked to it when accessing to some degree to any of these four dimensions. More sunset, is the State itself out of its sphere of influence to access the area of \u200b\u200bpersons not connected with him., Purchasing responsibilities. For example, a State invades the territory of another must respect the human rights of its inhabitants, also the States, on its own initiative may have business relationships or contractual cooperation with other States or individuals who are not in principle ties with them.
9 .- Access to these four dimensions of state power is not necessarily homogeneous or discrete. First, access to some dimensions but not others, for example, a person can participate in a national market without access to the territory where the market is located physically or on the contrary (you can enter the territory without necessarily joining some markets, such as work). Second, within each dimension, this insertion is not necessarily complete, but may be limited, so, for example, the enjoyment of certain social rights may depend on the course of a specified period in the territory or otherwise , a tourist can recognize certain safeguards against the power (such as habeas corpus
), but not control of governments through participation in elections, integration in the territory or the market may also be partial or temporary . The degree of access may increase with increasing the bond with the state. The higher the degree of incorporation of these four dimensions, the more meaningful integration of foreigners.
10 .- The full incorporation of the four dimensions of state power is identified with the "full citizenship" , in our current context matches the category of "nationality." Among the legal status of the person who has no connection with the state and the citizen right there are infinite nuances and legal situations that can not be adequately reflected the dichotomy domestic / foreign (which implicitly assumes that "foreigners" are always outside society.
11 .- States are capable of reasonably regulate the process of incorporation of foreigners to the four dimensions of power . This regulation is what is known as "Rights of Foreigners."
12 .- When the conditioning of the Immigration Law affecting human rights, these limits must be reasonable, appropriate and proportionate. Here's how to read the call to the legislature in Article 13 of the Constitution to regulate the content of the constitutional rights of aliens. Under no circumstances can exclude aliens from arbitrary or discriminatory manner any of the rights recognized in the Constitution. Restrictions on access to space power State must be based on constitutional values, ie the guarantee of the rights of people who are already fully or partially linked to the State, which has a special responsibility to them. On the other hand, can not cause undue harm to the rights of aliens (which are already recognized in the Universal Declaration, but need a State which is responsible for them.) The essential thing is to weigh the interests safeguarded to the restriction and the damage caused by it.
What matters is not entitled to membership of either group, although the nature of law can affect the proportionality if the damage is significant, it is crucial that the Constitution refer to the "English" in some rights, although this may be an argument in the proportionality.
The imbalance between the power dimensions and the dimensions of state responsibility (an addition to the State without integration into it) causes a crisis of legitimacy of power that undermines social cohesion. In the most extreme cases (but not always), this would imply the unconstitutionality of the norm.
Although the text has left me very long, there are still some questions how this affects your nationality? Is it consistent with the exclusion of political rights to foreigners in the art. 13 of the Constitution? Try to address them later.
