Managing Diversity in the European Union: Inclusive European Citizenship and Third-Country Nationals
Becker, Michael A., Yale Human Rights and Development Law Journal
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.
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. …