European citizenship establishes a precedent whereby the exercise and protection of rights--the practice of citizenship--is no longer contingent on residency within the jurisdiction of national citizenship. Free movement rights have allowed European citizens to cross borders and participate 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 a 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.
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...