Can Rights Be Frozen?

Abstract This chapter focuses on the intension of Union citizenship by asking if rights can be frozen. In particular, we look at the extra-negotiational legal resources available for freezing rights of the people involved. Can rights be frozen? Which rights? Whose rights? Under what conditions? For how long? Sources of international law and EU law, including guidelines from lesser-known sources and doctrinal instruments, are taken into account. The conclusion is that some rights of some of the people involved will be frozen, but that the legal grounds for doing so suggests that Union citizenship is not what the European Court of Justice and most scholars claim it is.

Keywords European citizenship • Functionalist theory of citizenship • Brexit • Freedom of movement • Right of residence • EU law • Migration law International law

This chapter explores the content side of citizenship, its intension. Let us turn to entitlements and ask if rights can be frozen. In particular, we look at the extra-negotiational legal resources available for freezing rights of the people involved. Can rights be frozen? Which rights? Whose rights? Under what conditions? For how long? On what grounds?

We examine sources of international law and EU law, including guidelines from lesser-known sources and doctrinal instruments. To do so, analogous reasoning will be applied to the unprecedented situation.1

© The Author(s) 2017

P. Mindus, European Citizenship after Brexit, Palgrave Studies in European Union Politics, DOI 10.1007/978-3-319-51774-2_5

Analogy is never a purely logical argument and ought to be taken cum granu satis.2 More modestly, analogies explored here will merely help to enucleate guidelines.

The conclusion is that some rights of some of the people involved can be frozen, but that the legal grounds for doing so suggests that Union citizenship is not what the European Court of Justice and most scholars claim it is.

 
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