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...more nearly as political and legal equals within the host society. At the same time, however, European citizenship has largely failed to account for the past or future migration of third-country nationals (TCNs)--those who are not citizens of any Member State--into or within the European Union. As result, the creation of European citizenship has arguably had the unfortunate side effect of further distinguishing and excluding TCNs from the emerging European society. This Note argues that the current legal status of TCNs hinders successful diversity management by individual Member States, undermines European integration, and deprives TCNs of fundamental rights. The Note proposes that European citizenship should be expanded to allow TCNs to acquire European citizenship without the simultaneous acquisition of national citizenship in any Member State. European Union authority over the citizenship status of TCNs would benefit the project of migrant integration into local, national, and transnational societies and help further the democratization of European governance. In addition, a redefined European citizenship could trigger a fundamental rethinking of national citizenship, potentially undermine the destructive influence of the extreme right, and, perhaps, lead to a more complete decoupling of the political and legal content of citizenship from the idea of nation.
I. INTRODUCTION: DIVERSITY IN THE EUROPEAN UNION
The European Union (EU) is an ongoing project in diversity management. (1) Member states bring their own histories, languages, economies, and political cultures to a common table in Brussels, and the individual citizens of the European Union exhibit the full cultural, ethnic, and religious diversity of the entire world. As of May 1, 2004, a group of twenty-five national states will be bound together by a common set of European institutions, laws, and political actors that balance and manage the complex set of underlying objectives pursued by governments, business interests, civil society, and individual citizens. (2) Diversity management in the European Union requires confronting and reconciling not only the diversity among states, but also the increasingly diverse populations within those states.
Peter Schuck has recently articulated the notion of "diversity-as-ideal" as the belief "that diversity--in general or of a particular kind--is beneficial or not." (3) Although "diversity-as-ideal" may not find its historical origins in Europe, (4) the European Union has made significant efforts to affirm and celebrate the diversity among and within its Member States. The Treaty on European Union, for example, states, "The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore." (5) The European Commission's 1998 Action Plan against Racism looked within the Member States, recognizing that, "European societies are multicultural and multi-ethnic and their diversity, as reflected by the range of different cultures and traditions, is a positive and enriching factor." (6) The Charter of Fundamental Rights of the European Union proclaims, "[t]he Union shall respect cultural, religious and linguistic diversity." (7) Although a list of scattered examples over time hardly provides sufficient proof to pronounce the "diversity-as-ideal" as firmly planted in Europe as in North America, neither is diversity unrecognized as a powerful source of potential good.
Although the degree to which individual Member States have embraced "diversity-as-ideal" may vary considerably, the European Union is by definition a gathering together of diverse national political communities. Every Member State is, more or less, a nation-state: a political entity whose geographic territory corresponds to the boundaries of a national population. (8) One cannot, however, extrapolate the nation-state model to the European Union itself, because "[u]nlike the national-statist communities, the European Union has been built upon the affirmation of Europe's deep diversity." (9) In turn, the European Union may lack a "communitarian sense" of itself, or a cultural "European identity." (10) Yet from the perspective of European governance, diversity--within limits--is an asset rather than a liability. According to one European Commissioner, "Only someone who does not understand Europe could think along those lines; Europe means diversity. We need decentralization. We need subsidiarity." (11) Of course, there is an important difference between affirming the value of diversity among state interests, and more fully embracing the diversity within states and among their inhabitants. (12) Nonetheless, in spite of the benefits that European policy-makers see in the process of managing diverse state interests in Brussels, difficulties arise when potential beneficiaries of European governance--including individual citizens or political interest groups--lack a sense of investment in its development or potential.
Disconnect between national citizens of the Member States and the pace and scope of European integration gave rise to a declaration of Citizenship of the European Union in 1992 upon the signing of the Treaty on European Union at Maastricht. (13) Since Maastricht, national citizens of the Member States have shared a European citizenship status. A decade later in 2002, as delegates to the Convention on the Future of Europe congregated in Brussels to debate revision of the current Treaty into a bona fide European Constitution, the shortcomings and potential of European citizenship received some, if perhaps insufficient, attention. (14)
Perhaps of more pressing concern to European leaders is the continuing impact on the European Union of immigrants from the less-developed world. (15) Leaders are preoccupied with increased racial and ethnic tensions within Member States, (16) unpredictable national electorates who extend occasional support to political candidates of the extreme right, (17) and the difficulty of integrating immigrants into national societies while sufficiently respecting, cultural, linguistic, or religious diversity. (18) This Note will consider the relationship among migration, diversity, and citizenship in the European Union, keeping in mind the above concerns.
The European Union has achieved impressive levels of economic harmonization; the free movement of goods and services within the common market is the cornerstone upon which the rest of European integration is based. Under Article 18 of the EC Treaty, European citizenship guarantees citizens, as well as goods, the right of free movement within the common market, albeit subject to other conditions within the Treaty. (19) Nonetheless, European citizenship--carefully crafted as a supplement to national citizenship rather than its replacement (20)--sets a precedent: citizens of any Member State possess the right to enter, reside, work, or attend school in any other Member State. (21) In addition, guarantees of non-discrimination and equal treatment have been implemented at the European level and have been construed to facilitate such free movement. (22)
At the same time, however, market harmonization and European citizenship largely fail to take account of past or future migration by third-country nationals (TCNs)--non-citizens of any Member State--into or within the European Union. (23) Although some progress has been made towards common entry requirements, (24) harmonization of the national laws regulating TCN residency and employment has only recently made significant--if still insufficient--progress. (25) Furthermore, the European landscape remains a patchwork of national citizenship requirements. (26) As a result, TCNs in one Member State may live under a very different national legal regime--and hence have different prospects for obtaining national and thence European citizenship--than immigrants living in a different Member State with more restrictive or less restrictive naturalization procedures. Meanwhile, TCNs remain explicitly outside the scope of European citizenship. Although European citizenship is portrayed as a means of developing a greater sense of shared purpose and values across Europe, it simultaneously creates an additional bright line legal distinction between European citizens and their TCN neighbors. (27) As this Note will discuss, the current legal status of TCNs in the European Union is inconsistent with the goals of the common market and the EU commitment to "an area of Freedom, Security, and Justice." (28) Furthermore, it hinders successful diversity management by individual Member States.
This Note argues that European citizenship should be expanded to allow TCNs to acquire European citizenship without the simultaneous acquisition of national citizenship in any Member State. (29) European Union authority over the citizenship status of TCNs would significantly help correct the somewhat incoherent path of EU policy on TCNs since the creation of European citizenship. In turn, this Note argues that a non-derivative European citizenship based on a uniform residency requirement could improve the capacity of EU institutions and national governments to integrate TCN populations more successfully into national and European societies. (30) Rather than fueling tensions between Member State citizens and TCNs, a common grant of European citizenship could foster shared interests between nationals and migrants in given localities. The grant to TCNs of European citizenship--and corresponding rights and duties--could also reduce pressure on the various naturalization regimes of the Member States, which currently face a no-win situation. Large (and growing) numbers of immigrants--and the need to integrate those populations--pressure Member State politicians to relax national residency and citizenship regimes to accelerate integration (or at least the access of migrants to rights and services); at the same time, highly visible supporters of populist (and often xenophobic) anti-immigration policies clamor for tightened citizenship laws to protect national identity from the incursions of "invading" populations. (31) This Note argues that under a regime of inclusive European citizenship providing rights, duties, protections, and opportunities to TCNs, Member States might be free to tighten the scope of national citizenship without significantly undermining the human rights or life chances of TCNs. Reaffirming the meaning of national citizenship and restricting its availability need not--as it does under the status quo--further marginalize migrant populations. In this way, the Note seeks to contribute to an area of scholarship requiring more attention: the ways in which transnational and globalizing tendencies can promote cultural, linguistic, and national diversity and distinctiveness, rather than--as much conventional wisdom supposes--demand homogeneity and convergence, or foretell the irrelevance of the nation-state.
Part II summarizes the scope and competing visions of European citizenship. Part III provides an overview of the legal and political status of TCNs in the European Union. Part IV argues that Member State control over acquisition of European citizenship creates incoherence in the political and economic vision of the European Union, and Part V suggests that policy-makers should respond by expanding the scope of European citizenship to TCNs, preferably by connecting European citizenship to residency. Decoupling European citizenship from national citizenship will encourage the integration of TCNs into local, national, and transnational societies and may overcome certain weaknesses inherent in national strategies for migrant integration. In addition, the policy has the potential to undermine aspects of the anti-immigrant, right-wing platform that in recent years has poisoned national party politics throughout Europe; at the very least, these proposals could shift the terms of the debate in constructive ways. Part VI considers the uncertain future role of national citizenship in an increasingly transnational and supranational political space; it suggests that Member States require freedom to reassert national citizenship in forms compatible with long-term immigration flows and the continuing economic and political integration of the European Union.
II. THE CONTOURS OF EUROPEAN CITIZENSHIP
This Part reviews the provisions governing European citizenship and the debates that have surrounded it since its inception. Competing conceptions of European citizenship have ramifications for its application to TCNs.
A. Rights and Duties of European Citizens
The declaration of European citizenship in 1992 was the culmination of a twenty-year effort, beginning with the 1973 Copenhagen Summit, to codify the political integration of Europe. (32) At the founding of the European Union in 1992, "Citizenship of the Union" was added to the EC Treaty. (33) European citizenship is derivative of citizenship in a Member State, although the actual text reads, "Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship." (34) This Note will return to the confusion (or conflation) of the terms nationality and citizenship; (35) in practice, European citizenship is conferred uniquely upon individuals who are already Member State citizens, whether through birthright or naturalization. The exclusive rights of European citizenship are limited but essential. (36) European citizens have the right to free movement within the Union, (37) the right to vote and stand as candidates in local elections and elections to the European Parliament, (38) and the right to consular protection by any Member State when abroad. (39) Currently, no clear duties are assigned on the basis of European citizenship. Although these provisions would benefit from reform, this Note argues that even under the status quo, TCNs--and the European Community as a whole--would benefit from clearer access to these "European rights."
B. Visions of European Citizenship
Three visions of European citizenship are discernable in the literature. Two predominant views can be described as legal-participatory and cultural identity-based. A third perspective seeks to reformulate the conventional approach to citizenship by creating collective identity out of shared and contested visions of citizenship itself. This approach, a constructive citizenship, draws on ideas of post-national citizenship and universal personhood. (40) The visions described here co-exist and overlap in complex ways. (41)
1. Liberal Citizenship: The Legal-Participatory Approach
The legal-participatory approach sees European citizenship as a formal means by which to bestow legal and political rights that the Member States alone could not provide. In a practical sense, the institution was intended "to put political integration on a par with economic integration" (42) by creating spaces for individual participation in European governance. Put otherwise, European citizenship functions as a means by which status as a citizen in the European Union takes on practical value for the individual. The provision of those rights that have exclusive application at a transnational level (e.g., free movement among the Member States) or supranational level (e.g., voting or standing in European elections) embodies citizenship as legal status. As with all citizenships, European citizenship defines "who is an insider and who is not," (43) at least in terms of who has the exclusive exercise and protection of those rights. This view of European citizenship privileges the participatory; by taking part in the shaping of European policy or exercising the substantive rights provided thereunder, the citizen herself gives meaning and value to European citizenship. By exercising those rights, European citizens affirm their commitment to the European project and mitigate the infamous "democratic deficit" between individual citizens and Brussels. In other words, under this model, European citizenship takes on practical meaning once the opportunities it conveys are seized upon by those to whom it is available. (44)
With its emphasis on legal status and a clearly defined but narrow set of rights, the legal-participatory approach might be called a "minimalist conception" of European citizenship. (45) Critics of the legal-participatory conception have found the provisions--and imagination--of European citizenship lacking. (46) Criticism has focused on the fact that, by and large, the majority of legal, political, and social rights held by European citizens already derive from national law or non-EU sources of law, such as the European Convention on Human Rights. (47) Joseph Weiler notes the underwhelming nature of European citizenship in the following terms:
Does not Article 8 [now Article 17] look awfully like one of those Carnets of "free attractions" some tourist authorities distribute to visitors to make them feel welcome and which you accept in the knowledge that the coupons are free because the attractions are not attractive? (48)
Considering the limited novelty of European citizenship rights, reform of the supranational institutions is required to bolster the value of the European franchise and free movement rights. Notwithstanding these shortcomings, many of these same critics of European citizenship emphasize its great potential as an innovative tool for the civic engagement of the European citizen. (49)
2. Communitarian Citizenship: The Identity-Based Approach
Another perspective sees the legal-participatory approach as doomed from the start if it overlooks the prerequisite of a shared European identity to engender citizen allegiance. The identity-based approach argues that European citizenship is not principally about political and legal rights, but rather a declaration of shared history and culture. (50) Citizenship is more symbolic than practical--a concept of belonging that evokes an ethno-cultural notion of common experience in spite of Europe's inherent internal diversity. (51) In this sense, the declaration of European citizenship signals recognition of a pre-existing reality; it functions to rally together citizens who have long labored within nation-states organized around constructed models of cultural or civic nationalism. EU policy has tried to capture and promote the idea of a common European identity by adopting symbols, such as the twelve-star flag or the European anthem. (52) Historians have taken up the task of showing that a European identity did not appear out of thin air at the beginning of the 1990s. (53) In this vision, an identity-based European citizenship both affirms and nurtures a long-extant European identity.
Critics argue either that the identity-based approach is appropriate but insufficiently realized, or that the focus on a shared cultural identity is itself the greatest obstacle to a meaningful European citizenship. Despite the efforts of some historians, collective identity proponents lament the lack of shared founding myths. (54) The real problem may not be the lack of such myths, but their relative weakness compared to more compelling national counterparts. Others fret that as desirable as a culturally-based European identity might be, "one cannot love a market," and the market is what the European Union is most about. (55) Efforts like the rotating "European Capitals of Culture" program (56) or initiatives to "Europeanize" the content of national school curricula (57) evince the persistence of those who believe that a European cultural identity exists, or that at least its constitutive elements are there to be pieced together.
3. Constructive Citizenship: Engagement and Uncertainty
Constructive citizenship draws from the legal-participatory paradigm, but maintains some need for belonging through collective engagement. Above all, constructive citizenship proponents are troubled by continued attempts to transplant the nation-state model of collective identity (whether based on ethno-cultural criteria or a more liberal civic nationalism) to the European Union. (58) As a new and unique form of governance, why should its citizenship--and eventual "collective identity"--not also be new and unique?
The harder question, of course, is what replaces--or elaborates upon--conventional citizenship models. Theodora Kostakopoulou envisions a community of citizens based on "co-operative interaction and participation in a variety of associative relations, and through their living in relation to institutions which promote reflexive forms of co-operation and democratic participation. " (59) Turning on its head the idea of a collective identity drawn from the pastbidders. Kostakopoulou believes Europe can find an identity "by becoming other than itself"--by rewriting its past and changing for the better. (60) The process of creating and maintaining a system of supranational governance is itself the prerequisite for "a community of 'concern and engagement.'" (61) For Kostakopoulou, "belonging" in such a community "is conceived in terms of being together in a common adventure and having equal co-responsibility for institutional design.' (62) Klaus Eder and Bernhard Geisen consider the possibility of a multifaceted European identity based upon "the diversity of its regions and localities, the continuously changing internal boundaries and the ebb and flow of its Western and Eastern frontiers." (63) Recalling diversity-as-ideal, Eder and Geisen argue that Europe requires "the formation of a citizenry by a culture of diversity and conflict which is noticed as a precious heritage." (64)
The essence of constructive citizenship is its very contestability, its uncertain balancing of individuals who live in multiple political and social spheres and possess different citizenships, as well. (65) European citizenship is "more like a project and less like a thing or a simple state of being." (66) From the standpoint of this Note, the most intriguing aspect of the "project" is its potential not only to decouple nationality from citizenship, but to construct a citizenship that privileges inclusion over exclusion, diversity over assimilation, and which, in turn, is itself a legitimizing force of supranational governance. If diversity-as-ideal remains underdeveloped in Europe-or incommensurate to the rhetoric of European policy-makers--European citizenship might provide a mechanism to effect its wider affirmation. The rest of this Note will focus on the role that European citizenship can play in the integration of TCNs into European societies.
III. THIRD-COUNTRY NATIONALS UNDER THE STATUS Quo
This section sketches a history of EU legislation on TCNs and their rights under the status quo. (67) Rhetoric on the need to integrate TCNs into European societies has failed to produce satisfactory results under current law.
A. Third-Country Nationals and the Rhetoric of Integration
As early as 1976, the Council of Ministers set out goals for the equal treatment of TCNs in the context of economic rights. (68) Around that same time, Europe's modern immigration "crisis" was beginning to take shape. During the post-war years, most Western European countries had actively recruited foreign workers to satisfy employment demands. During the economic recession of the 1970s, recruitment efforts slowed and work-related immigration was technically frozen. (69) Nonetheless, national leaders soon realized that temporary guest workers from the developing world--and their children--had no intentions of returning "home." Governments promoted family reunification to "stem the spread of social isolation, alienation and deviancy among settled immigrants." (70) Although national governments shared this common problem, integration methods remained a national prerogative. Furthermore, immigrants have continued to enter the European Union over the past twenty-five years, some based on links between their home states and the former colonial power, others as refugees and asylum-seekers. Family reunification has continued, and work-related immigration has continued in a limited (and sometimes informal) manner. (71) As channels for legal immigration have been narrowed, illegal immigration has increased accordingly. (72)
Over that same period, gradual progress towards realization of a common market strongly suggested the extension of EC law to cover the rights of TCNs. After the Single European Act in 1987 reinvigorated political integration, the European Parliament put the status of TCNs back on the agenda by proposing that TCNs be granted voting rights in local elections (73) and the same employment-related free movement rights within the European Community that Member State citizens enjoyed. (74) These proposals were rejected by the Council; Member States did not want to relinquish control over the TCNs within their territories, and supranational efforts to provide more rights to settled migrants contradicted domestic trends heading in the opposite direction. (75)
After Maastricht, however, calls for the augmentation and harmonization of TCN rights reappeared, often coming from the European Parliament. In 1993, a proposed Charter of Rights for Third-Country Nationals stated that "[m]igrants must be given a clear status that will enable them to live their own lives as participants in the society in which they live," including anti-discrimination protection. (76) Reform, however, was impeded by the architecture of the Treaty; (77) political compromise had placed immigration policy within Title VI of the Maastricht Treaty--Justice and Home Affairs--providing for legislation by "joint action." (78) But immigration policy still required Member State unanimity and reflected a security-based--not socio-economic--view of immigration and TCNs. (79) During the years between Maastricht and Amsterdam, intergovernmental gridlock paralyzed efforts to reform the uneven EU policy on immigrants and TCNs already within the territory. (80)
The 1996 Intergovernmental Conference, where the foundations of the Treaty of Amsterdam were set down, provided a forum for further discussion of the TCN question. The Economic and Social Committee and numerous NGOs pressed for measures facilitating TCN participation in European society. (81) The Council responded by declaring a Resolution on the Status of Third-Country Nationals on a Long Term Basis in the Territory of the Member States. The Resolution proposed a grant of limited TCN free movement rights within the European Union, the option to apply for employment in other Member States, and automatic residence rights for some migrants. (82) It justified the provision in the belief that it would "contribute to greater security and stability, both in daily life and in work, and to social peace in the various Member States." (83) The resolution represented signs of an emerging consensus in Brussels on the need for a more active EU role in TCN integration. (84)
The Treaty of Amsterdam did little to define the evolving rights of TCNs, but...
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