A ‘right to have rights’ in the EU public sphere? An Arendtian justification for the application of the EU Charter of Fundamental Rights

This paper discusses the Court’s reasoning in interpreting the EU Charter, using recent case law on horizontal effect as a case study. It identifies two possible means of interpreting the provisions of the Charter: firstly, an approach based on common values (e.g. equality or solidarity) and, secondly, an approach based on access to the public sphere. It argues in favour of the latter. Whereas an approach based on common values is more consonant with the development of the case law so far, it is conceptually problematic: it involves subjective assessments of the importance and degree of ‘sharedness’ of the value in question, which can undermine the equal constitutional status of different Charter provisions. Furthermore, it marginalises the Charter’s overall politically constructional character, which distinguishes it from other sources of rights protection listed in Art 6 TEU. The paper argues that, as the Charter’s provisions concretise the notion of political status in the EU, they have a primarily constitutional, rather than ethical, basis. Interpreting the Charter based on the very commitment to a process of sharing, drawing on Hannah Arendt’s idea of the ‘right to have rights’ (a right to access a political community on equal terms), is therefore preferable. This approach retains the pluralistic, post-national fabric of the EU polity, as it accommodates multiple narratives about its underlying values, while also having an inclusionary impact on previously underrepresented groups (e.g. non-market-active citizens or the sans-papiers) by recognising their equal political disposition.

Struggles for Citizenship in South Africa

South Africa’s first democratic constitution of 1996, which defines the content and scope of citizenship, emerged out of what the country’s Constitutional Court accurately described as ‘a deeply divided society characterized by strife, conflict, untold suffering and injustice which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge’ (cited in Jagwanth, 2003: 7). The constitution was internationally noteworthy for its expressed protection of women’s and sexual minority rights and its extension of rights of citizenship to socio-economic rights, such as rights of adequate healthcare, housing and education (SAGI, 1996). During South Africa’s first two decades of democracy, the Constitutional Court has proven its independence by advancing citizenship rights on a number of occasions (O’Regan, 2012). The struggle for citizenship was at the heart of the liberation struggle against the apartheid regime and within the complex dynamics of the anti-apartheid movement, increasingly sophisticated and intersectional demands for citizenship were made. South Africa’s constitutional rights for citizenship are not always matched in practice. The country’s high rates of sexual violence, ongoing poverty and inequality and public attitudes towards the rights of sexual minorities and immigrants lag well behind the spirit and letter of the constitution. Nevertheless, the achievement of formal citizenship rights in South Africa was the result of a prolonged and complex liberation struggle and analysis of South Africa demonstrates Werbner’s claim that ‘struggles over citizenship are thus struggles over the very meaning of politics and membership in a community’ (1999: 221). This chapter will begin with a contextual and historical overview before moving onto analyzing the development of non-racialism as a basis for citizenship, non-sexism and gendered citizenship, contestations of white, militarized citizenship and the achievement of sexual citizenship by the Lesbian, Gay, Bisexual and Transgender (LGBT) rights movement. As shall be made clear, all these citizenship demands emerged during the decades of the country’s liberation struggle.