Fundamental Rights: Constitutional Integration and Citizen Entitlements
The Evolution of Fundamental Rights
From Declarations to Constitutional Integration
The concept of rights as fundamental entitlements has evolved significantly, leading to their integration into modern constitutions. The earliest declarations of rights emerged in 1776 and 1789, marking a pivotal shift. These recognitions transformed individuals into citizens. Prior to the French Revolution, certain duties and freedoms existed, but they were largely confined to a privileged few and not universally applied. The 1789 French Revolution fundamentally altered this landscape, paving the way for broader recognition of rights.
The Social Contract Theory and Natural Rights
Fundamental rights are rooted in the theory of the social contract. This theory posits that “the rights of the individual and the State are natural, not artificial.” It asserts that individuals are inherently equal by nature and, therefore, free to exercise their rights. While some interpretations suggest that absolute freedom and equality could lead to anarchy, thinkers like Thomas Hobbes argued that human nature, left unchecked, tends towards aggressive behavior and a lack of coexistence. To secure the natural right to live freely, individuals agree to a social contract, empowering the State to ensure this coexistence. This agreement, according to Hobbes, must be acceptable to the populace. These natural rights have since been constitutionalized, forming the bedrock of modern legal frameworks.
Constitutional Guarantees of Fundamental Rights
A mere declaration of rights is insufficient; constitutions serve as the essential guarantees through which these rights are enshrined and protected. Historically, many countries recognized rights, but often failed to develop robust mechanisms for their enforcement. The recognition of fundamental rights, therefore, necessitates accompanying guarantees. The 1978 Spanish Constitution, for instance, explicitly recognizes fundamental rights and outlines their guarantees within Articles 14-29. Similarly, the European Community (EC) provides generic guarantees, preventing legislatures from unduly restricting rights. These guarantees are designed both for the general public and, through specific provisions, to prevent the misuse or diversion of these essential rights.
Ownership of Fundamental Rights
Fundamental rights are primarily attributed to individuals, but in certain contexts, legal persons may also hold them. However, the scope of these rights is not universal for all individuals, leading to distinct situations:
Rights Attributed to All Persons (Nationals and Foreigners)
A core set of rights is extended to all individuals, regardless of nationality. For example, Article 13.1 of the Spanish Constitution states: “Aliens shall enjoy the public freedoms guaranteed by this title in the terms established by treaties and law.”
Rights Reserved for Spanish Nationals
Some rights are specifically reserved for Spanish citizens. Article 13.2 stipulates: “Only Spaniards shall have the rights recognized in Article 23, except that, with the principle of reciprocity, be established by treaty or by law the right to vote and stand in municipal elections.”
Specific Rights for Foreigners: Extradition and Asylum
Certain provisions specifically address the rights of foreign nationals, such as those concerning extradition and asylum:
- Article 13.3: “Extradition shall be granted only in compliance with a treaty or law, in accordance with the principle of reciprocity. Persons excluded from extradition for political crimes are not regarded as such acts of terrorism.”
- Article 13.4: “The law shall establish the terms under which foreign nationals and stateless persons may enjoy the right to asylum in Spain.”
Voting Rights for Foreign Residents in Spain
Article 13.2 of the Spanish Constitution, in conjunction with Article 23.2 and the Organic Law on the General Electoral Regime (LOREG), generally reserves both active and passive suffrage rights for Spanish nationals. However, Article 13.2 introduces an important exception for municipal elections:
Active Suffrage for Foreign Residents
Foreign residents in Spain are entitled to active suffrage (the right to vote) in local elections, provided their home countries grant reciprocal voting rights to Spaniards in their municipal elections, as established by treaty. This right specifically extends to EU citizens, provided they have formally expressed their intention to exercise their right to vote in Spain.
To enable foreign residents in Spain to vote in municipal elections, it is a prerequisite that their countries of origin allow Spaniards to vote in their respective municipal elections, and this arrangement must be formalized through a treaty.
Passive Suffrage for Foreign Residents
Regarding passive suffrage (the right to stand for election), Article 177.1 of LOREG establishes eligibility for:
- EU citizens.
- Nationals of countries that grant Spanish citizens the right to passive suffrage in municipal elections, under the terms of a treaty.
Candidates must also meet the eligibility conditions stipulated by Spanish law and must not have been deprived of their right to stand for election in their state of origin.