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The constitutional mosaic across the boundaries of the European Union: citizenship regimes in the new states of South Eastern Europe Jo Shaw Working Paper 2010/07 _,_ IDEAS University of Edinburgh, School of Law The Europeanisation of Citizenship in the Successor States of the Former Yugoslavia (CITSEE) The constitutional mosaic across the boundaries of the European Union: citizenship regimes in the new states of South Eastern Europe Jo Shaw Forthcoming in N. Walker, S. Tierney and J. Shaw (eds.), Europe’s Constitutional Mosaic, Oxford, Hart Publishing, 2010 The Europeanisation of Citizenship in the Successor States of the Former Yugoslavia (CITSEE) CITSEE WorkingPaperSeries2010/07 Edinburgh, Scotland, UK ISSN 2046-4096 The University of Edinburgh is a charitable body, registered in Scotland, with registration number SC005336. © 2010 Jo Shaw This text may be downloaded only for personal research purposes. Additional reproduction for other purposes, whether in hard copies or electronically, requires the consent of the authors. Requests should be addressed to [email protected] The viewexpressed in thispublicationcannot in any circumstances beregarded as the official position of the European Union. Published in the United Kingdom The University of Edinburgh School of Law Old College, South Bridge Edinburgh, EH8 2QL Scotland, UK www.law.ed.ac.uk/citsee/workingpapers The Europeanisation of Citizenship in the Successor States of the Former Yugoslavia is funded by an Advanced Investigator Award for basic research made to Jo Shaw by the European Research Council and runs for five years from 1 April 2009 (ERC 230239) Forinformation aboutthe Project please visit theprojectwebsite at http://law.ed.ac.uk/citsee CITSEE WORKING PAPER SERIES 2010/07 1 The constitutional mosaic across the boundaries of the European Union: citizenship regimes in the new states of South Eastern Europe Jo Shaw, School of Law, University of Edinburgh1 Abstract Thispaper begins byexamining the relationshipbetween citizenship of the European Union and national citizenship, and in particular the significance of EU law for the regulation of the acquisition and loss of citizenship in EU Member States, as part of a wider enquiry into how the citizenship regimes of the seven 'successor states' of the former Yugoslavia can be located within a 'constitutional mosaic' of overlapping and sometimes competing legal norms. It identifies six primary instruments whereby non-state sources of law impact upon the citizenship regimes of these states: compliance with international human rights norms; EU conditionality; direct intervention by international organisations; direct supervision by international organisations; other forms of international pressure; and overlapping citizenship regimes between the successor states. As part of a wider task of shifting attention onto the citizenship regimes of these states in the context of processes of Europeanisation as well as polity-building at the state and regional level, the paper concludes that polity-building and the processes of constructing citizenship regimes will remain closely intertwined for the foreseeable future. Keywords: Yugoslavia, citizenship, Western Balkans, constitutionalism, European Union, law 1. Introduction In anyconstitutional settlement, citizenship claims a central place.This observation is as valid for that dimension of citizenship - often termed nationality under international law - which constitutes and formalises the link between a particular individual and a particular state, as it is for the other dimension which is concerned with the institutions, rights and practices through which a person attains and exercises full membership of a community. Citizenship continues to determine, 1 Salvesen Chair of European Institutions, University of Edinburgh. This paper draws on work ongoing in the context of the European Research Council-funded CITSEE project: The Europeanisation of Citizenship in the Successor States of the Former Yugoslavia (ERC Advanced Grant 230239); I am very grateful to members of the project team (Igor Stiks, Jelena Džankic, Gezim Krasniqi, Eldar Sarajlic and Ljubica Spaskovska for discussion and input; I would also acknowledge the input of Felicita Medved). See http://www.law.ed.ac.uk/citsee for more details of CITSEE, including material such as Country Profiles which have been used in the preparation of this paper. CITSEE works closely with the EUCITAC/EUDO-Citizenship Observatory Project fundedby EC Commission DG JLS (http://eudo-citizenship.eu), basedon a project funded by the British Academy (http://www.law.ed.ac.uk/citmodes). The financial support of all of these funding bodies is acknowledged with thanks. CITSEE WORKING PAPER SERIES 2010/07 2 above all, who belongs within a given constitutional settlement and thus who has the right to determine - and to share in - the future. It concerns, in Hannah Arendt's famous phrase, the 'right to have rights', the most basic of rights.2 It is central, therefore, to state-building and to polity-building more generally. Even so, citizenship is rarely just national. For example, international law has taken a position on what constitutes 'nationality' for the purposes of what should be recognised by states, namely a 'genuine link' between the citizen and the state.3 In addition, states frequently sign up voluntarily to a range of international legal instruments which impose conditions and restrictions (e.g. in the name of human rights) upon the answers to the question which is ostensibly one for states alone, namely the definition of 'who is a citizen?'. Sometimes the imposition of international norms results from actions of the international community rather than from the voluntary choices of states. One example would be where it is for the purpose of humanitarian intervention or in order to foster security and stability within a region. Even within states, there may be variation in relation to citizenship rights and practices between different subnational units, especially in federal or quasi-federal states, and - even more frequently - substantial contestation between subnational units and the federal 'centre' around, for example, the question of who 4 should vote in subnational elections. In the light of such challenges to national 'hegemony' over the concept and practices of citizenship, the central task of this paper is to illuminate the network of normative sources which shape the legal status of citizenship in Europe today. For these purposes it looks not only at the paradigm case of multi-level citizenship in Europe today, namely citizenship of the Union under the EU Treaties, but it also uses the case study of the citizenship regimes of the new states of South Eastern Europe (i.e. those states now existing on the territory of the former Yugoslavia5). This is a region which has been profoundly affected not only by the operation of EU law, as each of 2 H Arendt, Origins of Totalitarianism. new edn (New York, Harcourt Brace Jovanovich, 1973) 293. 3 Liechtenstein v Guatemala (Nottebohm) 1955 ICJ 4. 4 J Shaw, 'Political Rights and Multilevel Citizenship in Europe', in E Guild, K Groenendijk and S Carrera (eds), Illiberal Liberal States: Immigration, Citizenship and Integration in the EU (Farnham, Ashgate, 2009) 29-49. 5 'Yugoslavia' has taken a number of different legal forms: the (first) interwar Yugoslavia (originally the Kingdom of Serbs, Croats and Slovenes until 1929) until the Axis powers invaded in 1941; the (second) postwar Yugoslavia which was the Democratic Federal Yugoslavia until late 1945, Federal People's Republic of Yugoslavia until 1963 and the Socialist Federal Republic of Yugoslavia ('SFRY') thereafter until dissolution in 1991-1992; and finally the (third) Yugoslavia or Federal Republic of Yugoslavia ('FRY') comprising the two non-secessionist republics remaining after dissolution. This state was established in 1992 and existed until 2003 when it was replaced by the State Union of Serbia and Montenegro, which existed until Montenegro declared independence in 2006. CITSEE WORKING PAPER SERIES 2010/07 3 the states prepares (or has prepared, in the case of Slovenia) for the challenges of accession to the EU, but also by multiple sources of 'beyond-the-state' law. The former Yugoslavia represents a classic scenario of fragmentation, disintegration and partial reintegration under the shadow of international and European (Union) law, with the result that we can see clearly - as the metaphor underpinning this collection would have it - the mosaic-like character of the broader constitutional framework which is evolving for these seven states.6 There are also areas of profound tension between the states in relation to questions of citizenship, where it is possible to see spillover from one (national) legal order to another. Somewhat surprisingly, however, in such a scenario of intense state-building where questions of sovereignty have often been debated and contested, little attention has thus far been paid to the issues raised by the complex and overlapping citizenship regimes of these states.7 This paper aims to begin the process of filling this gap, at least from a legal point of view, building in particular on the earlier work of Stiks, who observed in 2006 how these states had - almost without exception - used citizenship as a tool of 'ethnic 8 engineering' in the context of the process of state- building. This paper shares the basic pluralistic assumptions of this collection as a whole that national constitutional frameworks