Toward a South American citizenship? the development of a new post-national form of membership in the region.

Arcarazo, Diego Acosta

Migration law may be discussed as an example of a clash between two central contradictory globalization processes: first, the transformation of political membership through new forms of quasi-citizenship and their impact for traditional understandings of identity and belonging in the national polity, and second, the securitization of migration and the attempt by the state to control its borders, considered as its "last bastion of sovereignty." (1) The outcome of this dispute results in conflicting mechanisms of inclusion and exclusion and in illiberal state practices, contrary to fundamental rights, with profound implications for the rule of law in Europe and elsewhere. South America has usually been neglected in academic debates on migration law. This is regretful for two main reasons: first, the development of new liberal ideas on migration in the region which challenge established assumptions on the regulation of migration in Europe, the United States, and elsewhere, and second, the parallel establishment of a South American citizenship. This article will look at this aspect, in particular the Mercosur Residence Agreement, which establishes a free movement of people regime in South America. Its drawbacks and potential will be outlined before exploring possible future scenarios and their importance for other regions, including the European Union (EU). (2)

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During the last five years, South America has been taking decisive steps toward what has been labeled in official documents as the establishment of a regional citizenship. This development can be seen as part of a wider, global trend in which the relationship between migration and citizenship is shifting. Globalization has brought transformations to sovereignty, borders, and nation-based citizenship. (3) The classical sovereignty doctrine--in which states decide who may enter their territory and under which conditions--is being eroded through various processes in the region. Some scholars have labeled this as a "rebundling of authority" or "challenges to sovereignty," with profound implications for the relationship between borders, territory, and population, since it transforms states'

control over that relationship. (4) Faced with this situation, governments have reacted in two contradictory manners.

Several authors have referred to the increasing securitization of migratory processes, notably when it comes to addressing the situation of migrants in an irregular situation. (5) Here, the border acts as the "last bastion of sovereignty." (6) For example, the use of labels such as "illegal migrant" and the detention and expulsion of undocumented migrants have become powerful tools in a process of criminalization, which emits potent signals about their undesirability and affects perceptions of their membership in the body politic. (7)

At the same time, we can identify the trans' formation of political membership through new forms of quasi-citizenship or "denizenship." (8) Here we see forms of "stable association with the polity other than through the medium of citizenship," which consequently test "the frame of our traditional understanding of membership of a political community." (9) In this light, the individual does not necessarily need to be a citizen to enjoy membership in a polity, since non-nationals are entitled to rights deriving from international human rights standards, regardless of their nationality, and from international agreements, as epitomized by the case of

European citizenship. (10)

Where does South America position itself in these debates? The first section of this article will briefly assess the development of supranational citizenship proposals in the last five years. This article will then assess the most developed framework, the Mercosur Residence Agreement, in light of the previous experience of European citizenship, as well as its position in the continuum between securitization and post-national forms of membership. (11)

THE DEVELOPMENT OF A SOUTH AMERICAN CITIZENSHIP MODEL

In the last five years, at least four different South American regional organizations and one regional dialogue have taken steps toward the adoption of a new form of supranational citizenship.

First, on 16 December 2010, the Common Market Council, Mercosur's highest decisionmaking body, adopted Decision 64/10. (12) Its aim was to establish an action plan to develop a Mercosur citizenship framework to be adopted by 2021, coinciding with the organization's thirtieth anniversary. This builds on the Mercosur Residence Agreement that is discussed in the next section.

Another regional organization, the Union of South American Nations (UNASUR) introduced a goal of regional citizenship in its founding treaty, which entered into effect on 11 March 2011. (13) Article 3(i) establishes, as one of its objectives, the consolidation of a South American identity through the progressive recognition of rights to those nationals of one member state residing in the territory of another member state, with the aim of achieving a joint South American citizenship. The final declarations of the 2012, 2013, and 2014 ordinary meetings of the Council of the Heads of State and Government reinforced the goal of working toward a real South American citizenship, which would constitute the main pillar of an integrated South American space and proposed to establish a single passport. (14)

Third, the Andean Community (CAN) has worked since at least the 1970s to adopt some aspects of a regional form of community membership through various supranational decisions. (15) The most important of these, Decision 545, which was adopted in 2003, has yet to be developed by the necessary implementing regulatory bodies and has not produced any tangible results for individuals in the region in terms of mobility rights. (16) However, the CAN Migration Forum has discussed the adoption of an Andean Migration Statute that would consolidate all current legislation on the subject into a single instrument and contribute to the consolidation of an Andean and South American citizenship. (17)

Fourth, the recently formed Pacific Alliance has as its objective the movement toward the free circulation of goods, services, capital, and people. (18) Even though its main goal seems to be facilitating business travel through visa exemption agreements, it has also worked on reciprocal consular protection and even the establishment of common embassies, such as the one in Ghana.

Finally, the South American Conference on Migration (SCM) has dealt with the issue of migration since 2001, when it started discussing free movement of people as part of a plan to address regional integration and globalization. (19) Since then, the need to promote free movement of people in the region has been a favorite of the conference's final declarations, particularly in the last five years, and most notably in the 2011 final declaration in Brasilia, which was eloquently entitled, "Towards a South American Citizenship." (20)

The picture emerging from these discussions and initiatives is that governance of the issue is taking place in various phases that include setting an agenda, building consensus, adopting policies and legislation, and finally, implementation and interpretation. (21) In this light, South America has clearly positioned regional citizenship on the agenda and has reached a consensus on the need to develop it. Nonetheless, this consensus has yet to decide on at least three central components. First, the material scope of a South American citizenship: Will it go beyond access to territory and the right to work? Will it include access to the welfare state or the right to vote and, if so, under what conditions? Second, the personal scope: Will free movement also apply to those economically inactive or only to workers? Will it apply to non-regional citizens who are already residing in a country in South America? Will it expand beyond South America to also include countries such as Mexico, Costa Rica, or Panama? Third, and finally, the ownership of the process: Which regional organization is going to be in charge of promoting and developing it? What rules and mechanisms will be in place so that South American citizens and any other beneficiaries can access their rights that derive from this supranational agreement?

These questions lead to various obstacles. There is the risk of inaction and paralysis when it is not clear which regional organization is legitimized to take the lead and move the process forward. There is also the danger of fragmentation of the rights of non-nationals through various, possibly incoherent, bodies of law. This affects the rule of law in any particular territory, since an individual could be unaware of his rights and deprived of legal certainty. Some of these issues may find a solution in a deepening of the most developed regional agreement on the movement of people, the Mercosur Residence Agreement.

THE MERCOSUR RESIDENCE AGREEMENT

Mercosur did not have among its original goals the free movement of workers, let alone citizens in general. (22) Two developments, however, pushed migration onto the agenda. The first was the "relaunching" of Mercosur in the early 2000s, following a profound economic and political crisis. (23) This rethinking of regionalism called into question prevalent neoliberal orientations and paved the way for the emergence of new modes of market governance and the incorporation of new items onto the regional agenda, including free movement of labor conceptualized as a socio-political issue, rather than in purely economic terms. (24) Moreover, immigration in South American countries went from being focused on extra-continental destinations up until the 1960s to primarily intra-regional shifts from the 1970s onwards. In the next thirty years, some 2 million people moved within the region of South America, with Argentina and Venezuela as the two main receivers. (25) Central to the discussion in the Mercosur relaunch was the situation of the large number of South American migrants in an irregular situation, both outside and inside the region, and the "rejection of the criminalization of undocumented migrants in the region". (26) This constituted a remarkable paradigm shift. Discourses and policies on migration had been securitized during the military dictatorships in the region in the 1970s and 1980s, with a complete disregard for migrants' rights. (27) Although the military dictatorships in the Southern Cone fell in the 1990s, the official immigration discourses remained securitized, restrictive, and often openly racist. (28)

It is within this context that the adoption of the Mercosur Residence Agreement in 2002 must be understood. (29) Implemented in 2009, the agreement's main objective deals with the situation of intra-regional migrants. It has transformed the migration regime for South Americans. It provides that any national of a Mercosur or associate member state may reside and work for a period of two years in a host state, subject to the restrictions discussed below. After two years, the temporary residence permit may be transformed into a permanent one, if the person can demonstrate legitimate means of living for him- or herself and any family members. It also enshrines a number of rights including the right to work and equal treatment in working conditions, family reunion, and access to education for children. All countries in South America (i.e., not just Mercosur countries) have ratified the agreement and applied it, with the exception of Venezuela, where it is currently under discussion, as well as Suriname and Guyana, where it has yet to be adopted.

The Mercosur Residence Agreement differs from the EU's free movement regime in various ways. For instance, in contrast to the EU, where there is an obligation to work or prove sufficient resources in order to be able to move to another member state for longer than three months, citizens in South America may reside for up to two years by simply providing an identification document and proof of a clean criminal record for the previous five years. Unlike in the EU, under the Mercosur Agreement, the obligation to show a clean criminal record places a burden on the individual to prove that he or she is not a threat to public safety or security. These documents can sometimes be difficult and expensive to obtain. In Europe, by contrast, the responsibility lies with the national authorities to demonstrate that a person endangers public security or public health. (30)

There are also conceptual and implementation differences. Free movement of people does not constitute a fundamental freedom in South America; it is the result of this international treaty, for which there are no coercive mechanisms to ensure implementation or impose sanctions for violations. If disputes arise, they are informally solved at the level of the Mercosur Specialized Forum on Migration, which is composed of government officials in charge of migration portfolios from member states. This leads to variation in the implementation of the agreement, with some countries applying it without restrictions (e.g., Argentina or Brazil); others only implementing it for nationals of a select group of countries (e.g., Chile); and others still, such as Ecuador, imposing very high fees to obtain the residence permits ($230 and $350 for the temporary and permanent residence permits, respectively). (31) Finally, Uruguay implements it more generously and has recently adopted legislation that will allow nationals of Mercosur and associate states to directly obtain permanent, rather than temporary, residence by simply proving their citizenship. (32) By contrast, in the EU, all certificates of registration or documents certifying residence are issued free of charge or for a charge not exceeding that imposed on nationals for similar documents. (33) This is so as to not render the right of movement meaningless by imposing conditions that could be difficult to fulfill. In the South American case, it will be the role of national administrations and, eventually, courts to determine the validity of fees and what levels would respect fundamental principles such as proportionality. (34)

Lastly, the agreement is unclear in many aspects. For example, it grants a right to family reunification without establishing who are to be considered family members. (35) It also provides equal treatment with regard to all social, economic, and cultural rights, but does not develop the contours of this provision. (36) These two issues are central to and continuously the subject of litigation in the EU. (37) Finally, the agreement does not provide any extra protection against expulsion for regional citizens, as the EU does. (38) Moreover, if an individual fails to transform his or her temporary residence permit into a permanent one after two years, his or her residence status falls outside the scope of the agreement and is regulated by national law alone. (39) This treatment would then be the same that any extra-regional migrant receives, limiting the concept of any meaningful regional form of membership.

CONCLUSIONS AND A WAY FORWARD

South America has, in the last fifteen years, shifted its discourse on migration from a restrictive one into the most advanced conversation among similar regional groupings. (40) This discourse is well represented by the 2013 Buenos Aires Declaration, which calls for a human right to migration, the recognition of the rights of migrants, and the rejection of any attempt to criminalize irregular migration. (41) The construction of a South American citizenship attempts, among other things, to solve the challenge of irregular migration within the region. Among the various proposals from different regional organizations, the Mercosur Residence Agreement is the most advanced mechanism and a crucial first step toward the establishment of a possible South American citizenship. It does, however, fall short of its ambitious objective in various ways, as earlier identified. Another Mercosur proposal is currently under discussion. If adopted, it would grant further free-movement rights, not only to regional citizens, but also to non-regional migrants residing in a country in South America. (42) This would go well beyond the EU's current migration regime and would materialize the vision to extend free movement to extra-regional migrants, which has been long defended in Europe by scholars, nongovernmental organizations, think tanks, and certain members of the European Parliament. (43)

Two critical challenges are apparent. First, there is the possible fragmentation of the status of migrants through various inconsistent legal regimes and, most importantly, through the lack of a competent supranational court with relevant jurisdiction. Second, the process must move forward in a direction compatible with liberal discourse, the jurisprudence of the Inter-American Court on Human Rights, and the 1990 UN Convention on the Rights of Migrant Workers and Members of Their Families, which has been ratified by nearly all countries in South America. Based on the above, a consolidation of all current proposals in a deepening and expansion of the current Mercosur Residence Agreement seems to be the most suitable manner to further establish a regional South American citizenship that would also include extra-regional migrants residing in a member state. This would have important consequences for other regional integration processes, notably in Europe, but also in other regions such as Africa or the Caribbean, and would consolidate South America as a region that challenges established assumptions on how to regulate migration.

NOTES

(1) Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (Cambridge: Cambridge University Press, 2008).

(2) The author would like to thank the European Research Council for partly funding this research. This article was presented as a paper at the University of Bristol and at the ISA Conference 2015 in New Orleans in February 2015. I would like to thank Michelle Cini and James Hollifield for their comments on each occasion respectively.

(3) Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 2015).

(4) Christopher K. Ansell and Giuseppe di Palma, ed., Restructuring Territoriality: Europe and the United States Compared (Cambridge, Cambridge University Press, 2004).

(5) Didier Bigo, "Security and Immigration: Toward a Critique of the Governmentality of Unease," Alternatives: Global, Local, Political 27 (February 2002), 63-92; Bridget Anderson, Matthew J. Gibney and Emanuela Paoletti, "Citizenship, deportation and the boundaries of belonging," Citizenship Studies 15 (2011), 547-563; Ryszard Cholewinski, "The Criminalisation of Migration in EU Law and Policy," in Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy, ed. Anneliese Baldaccini, Elspeth Guild, and Helen Toner, (Oxford: Hart Publishing, 2007).

(6) Dauvergne.

(7) Theodora Kostakopoulou, "The Area of Freedom, Security and Justice and the Political Morality of Migration and Integration" in A Right to Inclusion and Exclusion? Normative Fault Lines of the EU's Area of Freedom, Security and Justice, ed. Hans Lindahl (Oxford: Hart Publishing, 2009), 185-207; Etienne Balibar, "World Borders, Political Borders" in We, the People of Europe? Reflections on Transnational Citizenship, trans., J, Swenson (Princeton: Princeton University Press, 2004).

(8) Tomas Hammar, Democracy and the Nation State: Aliens, Denizens, and Citizens in a World of International Migration (Brookfield, VT: Avebury, 1990).

(9) Neil Walker, "Denizenship and Deterritorialisation in the European Union," in A Right to Inclusion and Exclusion? Normative Fault Lines of the EU's Area of Freedom, Security and Justice, ed. Hans Lindahl (Oxford: Hart Publishing, 2009), 261.

(10) Yasentin Nuhoglu Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press, 1994), 3; Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2004), 154.

(11) The Mercosur Residence Agreement refers to the residency status granted for nationals from the member states of Mercosur, Bolivia, and Chile. It was signed at the 23rd Meeting of the Council of the Common Market held in Brasilia on 5-6 December 2002.

(12) Mercosur, which stands for the Southern Common Market, is a regional organization in South America comprising Argentina, Brazil, Paraguay (currently suspended in its membership), Uruguay, and Venezuela. Bolivia is currently in the process of accession. All seven other countries in South America (Bolivia, Chile, Colombia, Ecuador, Guyana, Peru, and Suriname) are associate member states and may as such adhere to Mercosur's agreements. See Common Market Council Decisions 11/13, 18/04 and 28/04. MERCOSUR/CMC/DEC. N[degrees] 64/10.

(13) UNASUR, which stands for the Union of South American Nations, is a regional organization comprising all twelve countries in South America. It aims at constructing a cultural, economic, social, and political space in the region. Citizenship is also mentioned in the preamble as the determination to construct an identity and South American citizenship. Article 3(k) also establishes as one of the objectives of this organization the cooperation on migration matters under the strict respect of human and labour rights in order to achieve migration regularization and the harmonization of policies. Constitutive Treaty of the South American Union of Nations, 23 May 2008.

(14) Declaration of the sixth ordinary meeting of the Council of Heads of State and Government of UNASUR, Lima, 30 November 2012. Declaration of the seventh ordinary meeting of the Council, Paramaribo, 2 September 2013. Declaration of the eighth ordinary meeting of the Council of Heads of State and Government of UNASUR, Quito 4-5 December, paragraph 14.

(15) The Andean Community is a regional organization comprising Peru, Colombia, Bolivia, and Ecuador, and was established by the Treaty of Cartagena in 1969. Article I, which establishes its objectives, included the gradual formation of a Latin American common market.

(16) Ana Maria Santestevan, "Free Movement Regimes in South America: The Experience of the MERCOSUR and the Andean Community," in International Migration Law: Developing Paradigms and Key Challenges, ed. Ryszard Cholewinski, Euan McDonald and Richard Perruchoud (The Hague: IOM-TCM Asser Press, 2007), 363.

(17) See Bogota Declaration, Andean Migration Forum, 10 May 2013.

(18) The Pacific Alliance (la Alianza del Pacifico) is a Latin American trade bloc. It was created by the Declaration of Lima on 28 April 2011. Its current members are Colombia, Mexico, Peru, and Chile. Panama and Costa Rica are also in the process of joining.

(19) The South American Conference on Migration is a regional consultative process in which all twelve South American countries participate. It adopts final declarations that are not legally binding. Second South American Conference on Migration, "Acta de la Comision. Libre Movilidad de Personas," Agreement Accord of the Free Movement of Persons, Santiago de Chile, 2-3 April 2001.

(20) See final Declarations of the South American Conference on Migration at Montevideo 2003; Montevideo 2008; Quito 2009; Cochabamba 2010; Brasilia 2011; Santiago 2012; Cartagena 2013; and Lima 2014. These declarations can all be found under the "Conferencias CSM" page of http:// csm-osumi.org/.

(21) Randall Hansen, An Assessment of Principal Regional Consultative Processes on Migration (Geneva: International Organization for Migration, 2010); Alexander Betts, Introduction to Global Migration Governance, ed. Alexander Betts (Oxford: Oxford University Press, 2011), 1.

(22) Nora Perez Vichich, "El Mercosur y la Migracion Internacional" (United Nations Secretariat. Population Division, 28 November 2005), 8.

(23) Nicola Phillips, "Regionalist Governance in the New Political Economy of Development: 'Relaunching' the Mercosur," Third World Quarterly 22, no. 4 (August 2001), 565-583.

(24) Ibid., 570-573.

(25) See Diego Acosta Arcarazo and Andrew Geddes, "Transnational Diffusion or Different Models? Regional Approaches to Migration Governance in the European Union and Mercosur," European Journal of Migration and Law 16, no. I (2014), 19-44; lOM, La Situation Migratoria en America del Sur (report, Buenos Aires, lOM, 2001), 4. Douglas Massey, et al., "International Migration in South America," in Worlds in Motion: Understanding International Migration at the End of the Millennium (Oxford, Oxford University Press, 1999).

(26) Sandra Colombo, Julieta Nicolao, and Ignacio Frechero, "Las Migraciones Internacionales en la Agenda de America del Sur: Derechos Humanos, Corresponsabilidad y Multilateralismo frente a la Securitizacion de la Politica Migratoria en los Paises Desarrollados," Densidades 1 (2011), 11-30, 24.

(27) See Jorge Durand and Douglas Massey, "New World Orders: Continuities and Changes in Latin American Migration," Annals of the American Academy of Political and Social Science 630 (July 2010), 20-52.

(28) Pablo Ceriani, "Luces y sombras en la legislacion migratoria latinoamericana," Nuern Sociedad 233 (2011), 68- 86; Tanja Bastia and Matthias vom Hau "Migration, Race and Nationhood in Argentina," Journal of Ethnic and Migration Studies 40, no. 3 (2014), 476-477.

(29) Ana Margheritis, "Piecemeal regional integration in the post-neoliberal era: Negotiating migration policies within Mercosur," Review of International Political Economy 20, no. 3 (2013), 541-575.

(30) European Parliament, The Right of Citizens of the Union and Their Family Members to Move and Reside Freely within the Territory of the Member States, Articles 27-33 EU Directive 2004/38/EC.

(31) Government of Uruguay, Acuerdo Ministerial 000031, 2 April 2014.

(32) Government of Uruguay, Tramitacion de residencia permanente para nacionales de los Estados Partes y Asociados del Mercosur y familiares de uruguayos de origen extranjero, Ley 19.254, D.O., 28 August 2014 (Uruguay).

(33) European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states.

(34) For example, in Argentina the fee is 300 pesos (around $36). See Direccion Nacional de Migraciones, "Residences," http://www.migraciones.gov.ar/accesibIe/indexN.php7mercosur_temporaria.

(35) Mercosur Residence Agreement, Article 9(2).

(36) Mercosur Residence Agreement, Article 9(1).

(37) Ferdinand Wollenschlager, "The Judiciary, the Legislature and the Evolution of Union Citizenship," in The Judiciary, the Legislature and the EU Internal Market, ed. Philip Syrpis (Cambridge: Cambridge University Press, 2012); Dimitry ICochenov, "The Right to Have What Rights? EU Citizenship in Need of Clarification," European Law Journal 19, no. 4 (July 2013), 502-516.

(38) Directive 2004/38, Articles 27-33.

(39) Mercosur Residence Agreement, Article 6.

(40) Diego Acosta Arcarazo and Feline Freier, "Turning the immigration policy paradox up-side down? Populist liberalism and discursive gaps in South America," International Migration Review (forthcoming 2015).

(41) Declaracion de Buenos Aires, Posicionamiento de la Conferencia Suramericana sobre Migraciones ante el II Dialogo de Alto Nivel sobre Migracion Internacional y Desarrollo de Naciones Unidas, Buenos Aires, 28 August 2013.

(42) Project Proposal of the Immigration Agreement of Mercosur and Member States. This is based on information the author received from government officials.

(43) Diego Acosta Arcarazo, "Civic Citizenship Reintroduced? The Long-Term Residence Directive as a Postnational Form of Membership," European Law Journal (24 October 2014).

Diego Acosta Arcarazo is a lecturer in law at the University of Bristol and a member of the European Research Council-funded research project Prospects for International Migration Governance (MIGPROSP). Email: d.acostadfbristol.ac.uk.