21 July 2009

Relations of the Union and the member states 4 – Citizenship

A thing that affects a bit what I wrote in previous post is a question of a citizenship. If a federation should arise in Europe, a question of federal citizenship will arise. This is a question unknown to present European unification; the Lisbon Treaty speaks about the citizenship of the European Union but the European Union is not a state and therefore this thing is actually unreasonable in the treaty (an international organization cannot have its citizenship; with other words, nobody can be a citizen of an international organization).

In this post, I will be interested in a question which should be a relation between the citizenship of the European federation and the one of its member states for foreign persons, that is the rule of naturalization; I will not deal with that how the particular requirements for obtaining the federal citizenship should be, it will be a matter of a specific law and it can vary in the time. So, starting possibilities are three: a) the federation will give the federal citizenship and the citizenship of the member states will be derived from it; b) the member states will give their citizenship and the federal citizenship will be derived from it; c) the federation and the member states will give their citizenship independently on each other. The first case would mean that the member states would be dependent on the federation in giving their citizenship, the second case would mean that the federation in the same thing would be dependent on its member states.

The citizenship of the federation can be defined as an automatic counterpart of the citizenships of the member states, that is to say that everybody obtains automatically the federal citizenship who obtained the citizenship of some member state of the federation. This way the situation will have to be realized in the moment of arising of the federation (and it will have to be written in the federal constitution – in section Final and transitional provisions; the federal citizenship cannot be given otherwise to the Europeans in the beginning) but the question is whether it should be valid as a permanency. If we admit this version, it would mean that the member states will be who would decide about the membership of the federation – because who would accept their citizenship would obtain in addition also the citizenship of the federation. It would mean that the federation would not have any control over it who obtains its citizenship. If we look around if some federation has such (or similar) method of giving its citizenship, we find one and just that one which usually is a pattern for the federalists in Europe – Switzerland. We can read in chapter 37 of its constitution that anyone who is a citizen of a commune and of the Canton (= member state) to which that commune belongs is a Swiss citizen. It looks at first appearance that the federation is held in captivity of its member states (“cantons”), the situation is however not so easy how it can look from the provision of this article. For the next article – 38 – brings a complement: the federation shall legislate on the minimum requirements for the naturalization of foreign nationals by the Cantons. So we can see that the federation rejects to be fully dependent on its member states in this matter and that it specifies to its member states at least partially what should be the regulations according to that they give their citizenship. It is logical because in other case the federal citizenship would not have the same importance at all its holders – some people could obtain the federal citizenship more easily than the others due to some member states, and inequality would arise. The consequence of this concept however is that neither the federation nor the member states can freely decide about it who they accept as their citizen – each side restricts free activity of the other.

Other concept can be found in the second of the patterns for the European federalists, in the United States of America (a typical European representative of this concept is Austria). It is written in section 8 of article 1 of the USA constitution that the federal parliament shall have power to establish an uniform Rule of Naturalization, then in amendment 14 is written that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. Here, unlike in Switzerland, the member states are subordinate to the federation in the question of the citizenship; no member state cannot give its citizenship to anybody who had not already obtained the citizenship of the federation. The member states cannot actually influence at all who will get their citizenship because they must give it to every citizen of the federation who will settle in them. The member states are weaker here than the federation in the first concept because in the first concept, the federation gives its citizenship only to that one who has obtained the citizenship of some of its member states, but itself can order to its member states what should be the minimal requirements that an applicant for their citizenship has to meet – on the other hand, in the second concept, the member states cannot order nothing to the federation.

We are coming to a question now, how this matter should be regulated in the European federation – whether to select the concept where the citizenship of the federation should be preferred to that one of the member states or on the contrary the concept where the citizenship of the member states should be preferred to that one of the federation or whether another concept should be adopted.

I assume that the concept which is in the United States of America (and in European federations, maybe except in Bosnia and Herzegovina) is inappropriate for Europe. I will cite from the article A European citizenship in a European federation published in the web Federal Union: Why do different countries have different political systems? Because the political system is not simply a narrow literal expression of the rules by which a country is governed. It is an expression of the culture of a country. It shapes that culture too. But then most cultural phenomena both influence and are influenced by the societies in which they exist. If the political system is different one country from another, so is the citizenship. Citizenship is part of that political system, it is a reflection of it. Yes, Europe forms not one cultural nation like the USA or Austria, on the contrary - it is very diverse in culture and this diversity ought not to be disturbed by the European federation (see my proposal of the preamble of the federal constitution). Giving its own citizenship according to own deliberation belongs to cultural distinction of every European state, none of them ought to be compelled to accept as a citizen everybody who will move in its territory.

However, I want not to say with it that the European federation should adhere to the concept of Switzerland or even the intergovernmental one of present EU (where the European citizenship is merely symbolic without any real signification) – the federal citizenship cannot be only an adjunct to the citizenship of the member states as the author of a “federal” European constitution proposes in its article 4. In my opinion every state (and federation is a state) should have full control over it to whom it gives its citizenship. Therefore it seems fatuous to me that a citizenship of the federation exists but the member states in fact decide on it, though maybe (as in Switzerland) according to instructions of the federation. I believe on that account that the European federation and its member states should give their citizenships independently on each other and only one limitation should be that the member states may not give their citizenship to anybody who has not the federal citizenship.

One thing follows from this: in such arrangement some persons will certainly occur who will have the citizenship of the federation but not the one of any member state, either temporarily because they did not yet meet conditions for obtaining the citizenship of the state in that they settled, or constantly because they will not aspire after it – such possibility cannot be excluded, on the contrary, it is likely. The question is whether it is undesirable or it is not. I believe that it can make some problem chiefly in social domain but the people without citizenship of any member state will live in a concrete member state and will therefore follow its laws; in addition federal rules on employment conditions and social care for employees of federal administrative will have to exist and the people lacking citizenship of any member states can be add to people in that category in case of necessity. There is also no need of having fear that basic human rights would be removed from people without citizenship of any member state and with only federal citizenship – these rights will be protected by a bill of basic rights which will be part of the federal constitution and which will be in force in all federation territory and valid for all citizens of the federation regardless of their member state citizenship.

The concept seems to me really the best that both the federation on the one side and the member states on the other side will give their citizenship independently on each other regardless of that this concept is (maybe) unusual. Such concept is in force perhaps in Bosnia and Herzegovina too, I am of that opinion from the Law on Citizenship of Bosnia and Herzegovina and the Law on citizenship of Republika Srpska (one of its member states, so called „entities“). I judge from these two laws that citizenship of any of its member states is not a condition for naturalization in Bosnia and Herzegovina nor citizenship of Bosnia and Herzegovina is not a condition for acquisition of citizenship of any its member state (“entity”). It is written that a citizen of a member state (“entity”) becomes herewith a citizen of the federation but I did not find a converse provision in neither mentioned law. It is therefore possible that conditions in Bosnia and Herzegovina are the same as those which would be in the European federation if the rules about its citizenship that I have described would be enforced. From the perspective of the constitution, these rules would not demand any mention about the member states citizenship except of that I have already talked about, namely that the member states will not be able to give its citizenship to anybody who holds not the federal citizenship, about the citizenship of the federation only that giving the citizenship of the federation will be fully in power of the federation (maybe with addition that the federal citizenship can be obtained by birth, descent, adoption, marriage and naturalization).

06 July 2009

Relations of the Union and the member states 3 - Free movement

I tried to concentrate chiefly on the issues of the European federation's acting towards outside in previous two posts. Now (not only in this post) I will discuss the matters by which the European union will act as a uniform state towards inside.

I will begin with the matter of internal borders. The borders between the member states cannot be abandoned naturally – then the member states would disappear and the European union would become a unitary state – but they must be free pervious in a federation. The current mode of the movement between the member states of the European union is (as in the main everything) determined by an international treaty from that the member states as independent states can withdraw; but if they want to restrict the movement in its borders, they need not illegally withdraw from the treaty, the treaty itself makes it possible and the member states exploit it, as we know. But it is not possible in federation that the member states restrict transit of their borders by whatever reason. Therefore the federal constitution has to contain a provision that ensure free permeability of the member states borders. Actually, no federal constitution which I have read contains some similar provision because this matter is considered self-evident – but Europe is a special case; only the constitution of Germany and Switzerland contains a provision that all the citizens of the federation have freedom to move and stay in entire area of federation – but that is a bit different thing, it ensures that no member state can avoid other than its own citizens to stay in its territory. Such similar provision should be also in the European federal constitution but in other place, in basic rights chapter which I will discuss later.

The matter of the free movement between the member states affects three other matters – free movement of persons who are not citizens of any member state, the rights of citizens of one state in another state and prosecution of persons who have committed a crime or an offence in one member state and escape in another state.

The first matter – free movement of foreigners in territory of the federation (that I have already mentioned in previous post): If inhabitants of the member states can freely go over the borders of their states, it must naturally hold also for all, not only the citizens but also those who have neither the membership of the federation nor of any member state. That is, if somebody is admitted in the territory of the federation, he can move and stay in all its territory. It is obvious from it that no member state can decide on foreigners admittance to the union territory separately because it would mean that one member state would decide who can be present in other member states territories. Uniform rules of admittance to the territory of the federation have therefore to be and the federation will be who ought them to execute. Determining the rules on banishing from the union territory and their executing has to be also in power of the federation. At this matter, I have been recalling repeatedly the condition of today and the question, whether this matter cannot be put in the hands of the member states acting together. That is naturally possible as it is roughly done today, but it is necessary to realize that the current like-union is an attempt to solve the quadrature of the circle, that is to say how to unite Europe so that the member states need not to unite (unity without unification). It is not possible to imitate the present arrangement for the future – all what applies to entire union and what transcends the needs or ability of one member state needs to be given over to the federation.
The second matter – a status of the citizen of one member state in another member state – could be arranged sufficiently with a list of basic rights holding in all Union territory which will be part of federal constitution as I have already mentioned above.

The question of prosecuting persons who have committed a crime or an offence in one member state and escape in another state – the third matter – is certainly a delicate matter, because the criminal law ought not to come under the domain of federal activity; every member state itself should determine its own rules of its citizens acting and persecute broking these rules. It is easy for inhabitants of whatever state to avoid a punishment by escape to another state in federation where is free movement of persons. The solutions are three in the main: either the authorities themselves of the states where the crime or offence was committed will search for perpetrators in other member states or such searching will be put in the hands of the federation or finally the procedure will be the same as today, i. e. the intergovernmental way. The current manner is the least appropriate for it is slow and complicated. Its only advantage is that it has meticulous respect for sovereignty of individual states, such solution is nevertheless hardly consistent with existence of the federation. The other two ways of solution of this matter mean that the member states will accept that the federation will assist in this sphere, concretely in a form of a federal investigation authority. Such a federal organization would probably work similarly to current Interpol (ICPO) – to investigate persons who committed a crime or an offence in a member state but escaped in some other member state, but unlike INTERPOL with a power to exercise it in all union territory independently on the member states. In addition to that, such federal organization will have to be created in every case – if federal laws arise, crimes and offences against them naturally will arise and some federal body will have to investigate them (and to punish them); and if we will have this body with all-federation sphere of activity, it is natural that it will serve to the member states in cases that exceed their boundaries but are in their competence.

There are also other matters in criminal sphere which can be in competence of the federal investigation authority (roughly it what deals EUROPOL today with) but they should be mentioned in another place of the federal constitution and therefore I will not discuss them now.
So the conclusion should be from the point of view of the constitution that the European federal constitution ought to guarantee free movement between the member states in all cases (no member state will not be competent to close its borders, not even for a limited time) and the constitution should determine that the federation will create an institution that will organize the investigation for persons prosecuted in some member state and stay somewhere else in the union territory. The precise wording of the constitution text I will state in the end of this section “Competencies”, as I wrote earlier.