of the minority or majority in terms of the Sexual Citizenship and power structure of that state, and very importantly, to which member state does EU Conditionality the citizen belong? In the process of EU enlargement, applicant countries have to harmonize their national legislation with Can Supranational the acquis communautaire before entry into Organizations Facilitate the the union.3 This paper explores whether Advancement of Sexual conditionality to EU membership has served as an effective instrument for Minorities? positive change in the lives of sexual The Case of Former Yugoslav minorities in the applicant countries. More Republics and EU Accession specifically, this paper will focus on the former Yugoslav republics of Serbia and Montenegro, which are currently in the Séhzad M. Sooklall negotiation phase for EU accession, and Croatia, which was admitted to the union in July 2013.4 itizenship is transcending traditional This paper will begin with the European states’ borders. More introduction of relevant context, including Cthan a half billion Europeans are operational definitions. It will be followed now citizens of both the European Union 1 by a review of Contested Terrain of Sexual (EU) and one of the 28 member states. Citizenship: EU Accession and the Changing Article 20 of The Treaty on the Position of Sexual Minorities in the Post-Yugoslav Functioning of the European Union states context, by Katja Kahlina. It will then that “every person holding the nationality compare EU accession of the former of a Member State shall be a citizen of the Yugoslav republics and the resulting Union” and that “citizenship of the Union impact on sexual minorities with recent shall be additional to and not replace 2 events in France in regards to same sex national citizenship.” Do the rights and marriage legalization. This comparative and protections afforded by member states interpretive analysis finds that although necessarily mirror the ones afforded at the advancement of sexual citizenship in supranational level? Is one set of France was not imposed by the European citizenship rights more desirable than the Union, riots and anti-gay violence still other? Several factors must be considered: does the citizen in question constitute part 3 Katja Kahlina, “Contested Terrain of Sexual Citizenship: EU Accession and the Changing Position of Sexual Minorities in the Post-Yugoslav 1 Dimitry Kochenov, “The Present and the Future Context,” University of Edinburgh School of Law: The of EU Citizenship: A Bird’s Eye View of the Legal Europeanisation of Citizenship in the Successor States of the Debate,” Jean Monnet Working Papers (NYU Law Former Yugoslavia (CITSEE) Working Paper Series No. School) No.2/12 (2012): 3, 2013/33 (2013): 23, http://dx.doi.org/10.2139/ssrn.2063200. http://papers.ssrn.com/sol3/papers.cfm?abstract_i 2 The Member States, “Consolidated version of the d=2388884. Treaty on the Functioning of the European Union,” 4 “EU Enlargement: Check Current Status,” Official Journal of the European Union (2012), European Commission, last modified April 16, 2015, http://eur-lex.europa.eu/legal- http://ec.europa.eu/enlargement/countries/check- content/EN/TXT/?uri=CELEX:12012E/TXT. current-status/index_en.htm. erupted in Paris just as they did in by extension, citizens of the supranational Belgrade, Zagreb and Montenegro, which European Union are afforded equal rights suggests that causality for anti-gay regardless of gender or sexual orientation. sentiment might not necessarily be rooted A supranational organization lies in EU conditionality but is likely a somewhere between a confederation and a symptom of generalized homophobia. This federation, but it does not fall exclusively paper presents the argument that the into either category because there are advancement of sexual minority rights several characteristics that are unique to comes at a cost regardless of whether it is this type of union.6 For example, while endogenously or exogenously promulgated competence is divided between the EU and , and often with vitriol and protests the individual states, sovereignty remains targeted toward the very same minority exclusively within the realm of the member groups expected to benefit from changes in states.7 Kiljunen8 makes the point that EU the law. However, because the gains in legislation takes precedence over national legal status come with increased rights and laws in areas where the EU has been remedies, it is a worthy and significant goal accorded competence,9 just as U.S. federal to pursue in spite of the costs. law and the constitution take precedence The paper concludes by posing over state law only in matters where the relevant questions concerning the power of federal government has been granted such supranational organizations, and whether powers by the Constitution. such organizations can facilitate the The important concept here is that advancement of sexual minority rights. a supranational organization is a collective Taking the EU as a model, can other body of states acting through a central supranational organizations (World Trade power in matters delegated to it by the Organization or the World Bank) impose individual states. The states defer to the membership requirements that ask not only supranational rule in the matters delegated for the respect of sexual minority rights via to that union. The EU started as an declaratory instruments but also impose economic union, but gradually expanded its strict enforcement, regulatory and scope. Social, political and human rights disciplinary regimes for violating such eventually made their way into the acquis rights? communautaire. The acquis communautaire is defined as the “[c]ommon foundation of rights and obligations which binds together BACKGROUND Gender equality and non- 6 discrimination on the basis of sex, racial or Kimmo Kiljunen, “The European Constitution in the Making,” Centre for European Policy Studies (2004): ethnic origin, religion or belief, disability, 22, age and sexual orientation are amongst the 7 Ibid. founding values of the European Union.5 8 “Composition: Representatives of the National Therefore, citizens of member states and, Parliaments,” The European Convention, last visited April 16, 2014, http://european- convention.europa.eu/EN/Static/Static6cf8.html?la 5 European Commission, “The EU Explained: ng=EN&Content=Parlement_Nat. Kimmo Justice, Fundamental Rights and Equality,” Kiljunen is a former member of the Finnish Luxembourg: Publications Office of the European Union Parliament and member of the European (2014): 4, Convention that drafted a constitution for the EU. http://europa.eu/pol/pdf/flipbook/en/justice_en. 9 Kiljunen, “The European Constitution in the pdf. Making,” 19. the Member States of the European This is especially seen vis-à-vis EU Union.”10 It is derived from the French conditionality toward harmonization of verb acquérir, which means to acquire, and sexual minority rights.14 therefore conjointly means that which the community has already acquired. This concept is important here because new LITERATURE REVIEW members seeking to enter the union have This analysis examines Kahlina’s to harmonize their national laws to grant paper in great depth because of her seminal those acquired European rights to their work on the issue of sexual minority rights citizens as well. Hence, as the rights of in the context of former Yugoslav sexual minorities became part of the republics’ accession to the EU. As a 11 European acquis in the 2000s, the current and popular topic in human rights, applicant countries from The Socialist there is however limited scholarship Federal Republic of Yugoslavia (SFRY) specifically on the issue of LGBT rights in had to enact non-discrimination legislation the context of Western Balkan states. This to protect sexual minorities. paper not only builds on the work laid out The SFRY was a federation of six by Kahlina but also offers a different socialist republics: Bosnia and perspective and analysis using secondary Herzegovina, Croatia, Macedonia, sources. Montenegro, Serbia, and Slovenia, which Kahlina, in Contested Terrain of disintegrated in the 1990s as a result of a Sexual Citizenship: EU Accession and the number of regional ethnic conflicts. These Changing Position of Sexual Minorities in the countries are pertinent because they Post-Yugoslav Context, explores the point constitute the majority of applicants brought forth by feminist and sexuality 12 currently negotiating for EU accession. studies scholars that citizenship rights and While Croatia successfully acceded to the duties are accorded differently on the basis union in 2013, Serbia and Montenegro are of gender and sexuality.15 The author 13 still undergoing the negotiating phase. submits that because citizenship is granted Moreover, these three countries are largely on the basis of ancestry, which is relevant to this study because despite their inevitably linked to reproductive and geographic proximity, they have distinctive monogamous sexuality, society has an narratives and imaginaries in EU accession. inherent bias toward heterosexuality.16 Throughout her paper, Kahlina discusses 10 “Community Acqui,” EuroVoc: Multilingual the tensions between nationalism, nation- Thesaurus of the European Union, last visited April 16, building, and the transnational processes of 2014, EU accession and how these impacted http://eurovoc.europa.eu/drupal/?q=request&uri= http://eurovoc.europa.eu/210682. sexual citizenship in the former Yugoslav 17 11 Council of the European