Arrighi, Jean-Thomas

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On the Risk of Trying to Kill “Seven ata Blow”Jean-Thomas Arrighi 2019-01-24T13:13:39Starting from the assumption that the existing framework regulating the acquisitionand loss of European Union (EU) citizenship produces legal incoherencies thatultimately translate into “unnecessary human suffering”, Dora Kostakopoulouproposes a two-step reform. First, the status should be made inalienable to preventits involuntary loss resulting from the withdrawal of a Member State nationality, orthe withdrawal of a Member State from the EU. Second, there should be a parallelpath to “Eurozenship” based on birth and long-term residence in the EU, irrespectiveof whether or not the person holds a Member State nationality. At first glance, herplea appears rather cunning, for it promises, like the brave little tailor in the GrimmBrothers’ fairytale, to kill “seven at a blow”. Indeed, in Dora’s account, breakingMember States’ definitional monopoly over EU citizenship could solve at once avariety of issues, ranging from: the consequences of statelessness, the collectivedeprivation of EU citizenship resulting from a Member State’s withdrawal from theUnion, the loss of Member State nationality due to long term residence abroad, andthe lack of uniformity in the application of EU law or precarious status of third-countrynationals owing to different or exclusive naturalisation requirements across MemberStates.I agree with Dora that political theorists should not be afraid of radicalism, as longas the proposed reform effectively achieves clearly defined and desirable goals (theutilitarian test) and is consistent with fundamental norms (the principled approach).Richard Bellamy already pointed to the potentially negative consequences of whathe describes as a form of “mushroom reasoning” on some of the core principlesunderlying the European project, such as that of reciprocity. While I broadly shareRichard’s conclusion, my main concern here is that Dora’s proposal may not entirelysatisfy the utilitarian test requirements. In other words, instead of killing seven fliesat a blow, it may end up killing none. In what follows, I will briefly explain why, andconclude that the multitude of distinctive issues produced by the existing regulatoryframework rather call for a series of targeted and more modest reforms than anoverarching solution.A utilitarian test is like a doctor’s consultation. It must start from a precise andobjective diagnosis of what is wrong under present conditions, and then evaluatewhether the proposed remedy provides a suitable cure or at least alleviates thesymptoms without creating new and potentially more debilitating ones. In the socialworld, the truth is often in the eye of the beholder, for the diagnosis itself essentiallydepends upon the practitioner’s normative inclinations. Dora is primarily concernedwith cases of what we may call ‘under-inclusion’, whereby a person has a legitimateclaim to EU citizenship status, but does not have it because of illegitimate statepractices. She mentions several groups of individuals arguably falling under thiscategory, such as those Russian-speakers long settled in Latvia who became- 1 -stateless in the aftermath of the disintegration of the USSR; third-country nationalsborn or residing in a Member State that has no jus soli provisions for birthrightcitizenship or no appropriate path to ordinary naturalisation; and former Europeancitizens whose Member State nationality either lapsed or was stripped away becausethey acquired it on fraudulent grounds or allegedly constitute a threat to the vitalinterests of the state. Assuming that all such persons have a legitimate claim forinclusion, offering them a Eurozenship that is not buttressed in a Member Statenationality is unlikely to improve their lot in any significant way. The main reason forit is that EU citizenship is meant to complement – but not to substitute itself to – statenationality. This normative premise is embedded in the very institutional design ofthe EU’s multilevel citizenship architecture and has practical implications. Having aqualified right to move, not to be discriminated against, and to vote in local electionsin a country where one was once considered a foreigner is a valuable addition tothe rights derived from Member State nationality. It does not, however, constitutea credible alternative to it. Instead of a second path to a Eurozenship of free andequal citizens, we may well end up creating a second-class citizenship that wouldnot satisfy the aspirations of those who are unduly kept out of a Member State’snational community, be they stateless of third-country nationals. Besides, creating acompensatory route to a European citizenship emptied of its national core providesreluctant Member States with a convenient excuse for not putting an end to theirexclusion.Member States’ citizenship regimes are under-inclusive towards certain groups.They are also over-inclusive towards others. Co-ethnic policies targeting populationswithout an actual link to the political community other than a faded family bondwith a long-deceased national can be found in several Member States. In a similarvein, so-called “Golden Passport” programmes targeting foreign investors eager tobuy their way into European citizenship have been widely seen as over-inclusive,especially when they are not tied to a residence requirement. In theory, over-inclusive state practices pose a more immediate challenge to Eurozenship, for theymay breed conflict among Member States suspecting each other of underminingtheir immigration control policy. But Dora’s proposal, which deliberately refrains fromencroaching upon Member States’ sovereignty in matters of nationality, would nothelp solve this issue.Would it be more effective in addressing the consequences of BREXIT, as Dorasuggests?  Consecrating the inalienability of European citizenship status wouldindeed benefit all sixty-six million British citizens by allowing them to remainEuropean citizens, even if their country actually leaves the EU. On the otherhand, it would not help in preserving the rights of EU citizens residing outsidethe Union’s territorial jurisdiction, should the UK become a third country. Onecould even argue, with the blend of cynicism and realism that have permeatedBREXIT negotiations thus far, that taking off the bargaining table the perspectiveof a reciprocal agreement mutually protecting migrant populations on both sidesof the Channel may further undermine the status of current and future EU citizensresiding in the UK. The principle of reciprocity may well not only be the cornerstoneof European integration, but also of European dis-integration.- 2 -In sum, an autonomous Eurozenship may only marginally mitigate the problemsarising from over- and under- inclusive state practices, partially limit the downgradingof rights engendered by the decision of the British people to exit the EuropeanUnion, and further entrench illegitimate state practices. What are, then, thealternatives? One radical solution would be to turn the normative hierarchy upside down, bymaking Member State nationality derivative of European citizenship and basedupon residence instead of the other way around. The rules of acquisition andloss of European citizenship would thus be determined at EU level and uniformlyapplied across its jurisdiction, Member States essentially surrendering one of thelast bastions of their sovereignty. The European Union would then walk in thefootsteps of several historical federations, such as the US, Germany, and to alesser extent, Switzerland. I see at least two reasons why such bold move shouldbe taken cautiously. First, the centralisation of citizenship powers often came inthe wake of dramatic events. After all, the introduction of the 14th amendmentin the American constitution costed no less than a civil war, and the Europeandemoi are unlikely to support a similar reform in the absence of a major systemicshock. Second, it would not necessarily translate into a more inclusive citizenshipregime. Even in the unlikely scenario that Member States agree to adopt the mostinclusive national dispositions currently in force across the Union as the basis of aputative Eurozenship regime, it would still fall short of unconditional jus soli at birthor naturalisation strictly based on residence. The experience of Switzerland, whichcombines a birthright regime almost exclusively based on jus sanguini with thickcommunal, cantonal and federal naturalisation criteria that must be met cumulatively,provides a sobering counter-example. Under present conditions, pushing for suchreform would amount to taking a sledgehammer to kill flies: A disproportionate,unreasonable, dangerous and ultimately ill-suited tool for our purposes.Ultimately, the solution may not lie in one architectonic change, but in a seriesof more modest and targeted reforms addressing one problem at a time. Theinspiration for it would not come from a fairytale character, but from the experiencedhunter, who knows that in reality, killing two birds with the same stone is next toimpossible.The metaphor invites us to act in a way that is consistent with two principles. First,just like killing flies and birds is inherently wrong unless it is absolutely necessary, acomplete overhaul of a system that enjoys considerable legitimacy among MemberStates and citizens alike is inappropriate unless there is compelling evidencethat the negative consequences it produces cannot be addressed through other,less radical means. Second and relatedly, problems that are different “in kind”rather call for different solutions than an overarching one. In practice, the multiplepitfalls of European citizenship should be addressed separately. I see at least twodesirable changes. First, disentangling local citizenship from state citizenship, byexpanding the municipal franchise to all residents, irrespective of their nationality.Local voting rights for third country nationals already exist in twelve Member States,and reluctant ones should be urged to put an end to the arbitrary discriminationbetween European and non-European local citizens. Second, limiting Member- 3 -States’ room for manoeuvre in nationality law by setting EU-wide maximum andminimum standards on citizenship acquisition and loss that are consistent withdemocratic norms. While Eurozenship would still be formally derivative of MemberState nationality, Member States could no longer super- or down-size the Europeancitizenry in ways that flagrantly violate the EU’s fundamental principles.In the current political climate, a.ny progressive reform, however modest, may wellbe infeasible. However, Dora’s ambitious proposal shows that we should not, at thevery least, stop thinking about it altogether.- 4 -

On the Risk of Trying to Kill “Seven at a Blow”

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On the Risk of Trying to Kill “Seven at a Blow”

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