Jean Monnet Center at NYU School of Law

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European Citizenship and the Post-Maastricht Debate

Both in the input of the political Institutions to the 1996 IGC and in the first output of the Conference - the Irish Presidency document of December 15, 1996 -- European Citizenship is the first issue to be raised. How is the official debate constructed?

A first typical feature is the conflation of Citizenship with (human) rights. This has become so natural that it seems both right and inevitable. I consider this conflation as part of the problem. Almost uniformly in every single Report and Resolution, official and unofficial, I have read on the IGC the same phraseology is employed when the issue of citizenship and rights is discussed: The problem is defined as alienation and disaffection towards the European construct by individuals. The medicine is European citizenship. What is the content of this medicine? Human Rights, more rights, better rights, all in the hope of bringing the Citizen "...closer to the Union."

On what basis is the claim made, again and again, that rights will make people closer to the Union? Even if there is some truth to that, the picture is, at a minimum far more complex in the current European context.

I think rights do have that effect in transformative situations from, say, tyranny to emancipation. But that has long ceased to be the West European condition. Somewhat polemically let me make three points to illustrate that the nexus rights-closeness is not nearly as simple as the IGC literature suggests.

Reflect on the following:

1.Take, say, an Austrian or Italian national. Their human rights are protected by their constitution and by their constitutional court. As an additional safety net they are protected by the European Convention on Human Rights and the Strasbourg organs. In the Community, they receive judicial protection from the ECJ using as it source the same Convention and the Constitutional Traditions common to the Member States. Many of the proposed European rights are similar to those which our citizen already enjoys in his or her national space. Even if we imagine that there is a lacuna of protection in the Community space, that would surely justify closing that lacuna -- but why would anyone imagine in a culture of rights saturation, not rights deprivation, that this would make the citizen any closer to the Community? Make no mistake: I do think the European human rights patrimony, national and transnational, has contributed to a sense of shared identity. But I think one has reached the point of diminishing returns. Simply adding new rights to the list, or adding lists of new rights, has little effect. Rights are taken for granted; if you managed to penetrate the general indifference towards the European construct by waving some new Catalog or by broadcasting imminent Accession to the ECHR, the likely reaction would be to wonder why those new rights or Accession were not there in the first place.

2. For the most part rights set "walls of liberty" around the individual against the exercise of power by public authority. The Rights culture, which I share, tends to think of this as positive. But, at least in part, at least psychologically, it might have the opposite effect to making the individual closer to "his" or "her" Union. After all, every time you clamor for more rights, which in this context are typically opposable against Community authorities, you are claiming that those rights are needed, in other words that the Union or Community pose a threat. You might be crying "Wolf" to score some political point, or you may be right. Either way, if you are signaling to the individual that he or she need the rights since they are threatened, it is not exactly the stuff which will make them closer to "their" Union or Community.[1]

3. Finally, there is very little discussion of the divisive nature of rights, their "disintegration effect." Deciding on rights is often deciding on some of the deepest values of society. Even though we blithely talk about the common constitutional traditions, there are sharp differences within that common tradition. Some of the rights highest on the Christmas list of , say, the European Parliament (see infra), noble and justified as they may be, could if adopted for the Community be celebrated by the political culture in some Member States and regarded with suspicion and worse in other Member States. Remembering the Grogan v SPUC abortion saga, which the ECJ inelegantly, but perhaps wisely ducked, will drive home this point.

Human rights have a place in the discourse of citizenship, even an important place to which I shall allude. But given how thing stands, developing political means of control is more central to European citizenship than piling on new human rights. As I see it, the major problem of European citizenship is giving it meaning, actually developing a some measure of shared understanding what it can and should (and should not) mean. Citizenship is as much a state of consciousness and self-understanding and only a smallish part is translatable to positive law. What is needed is serious public discourse as a pre-condition to any operationalization.

European Citizenship touches on the profound issues of public authority and identity in and of the Union. It touches on very most sensitive political wires. For decades the subject was avoided. But in the TEU Pandora's Box was opened.

[1] For good measure one could add here one of the staples of the Critique of Rights tradition that the excessive focus on rights, atomizes individuals and draws them apart from their communities.

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