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While the four dynamics expand the range of citizenship beyond traditional conceptions of territorial sovereignty and nationhood, none of them questions the existence of separate states which consider citizenship as a status of full membership in their political communities. I characterize these developments therefore as transnational rather than postnational. It might seem that the foremost example of postnational citizenship in the contemporary world is the common citizenship of the European Union as defined in Article 8 of the Maastricht Treaty. However, in my view, this truly novel form of citizenship remains severely underdeveloped and caught in a national framework which constrains its dynamic potential. I will argue that this critique applies to three aspects of Union citizenship: its content of rights, its range of inclusion and the ideologies of a European collective identity which are meant to underpin it.
The rights of Union citizenship are those of free movement and residence[12] within the Union (article 8a), of diplomatic protection outside the Union provided by any other member state (article 8c), and rights of political participation: the franchise for the European Parliament and local elections (article 8b) and the right to petition the Parliament or to appeal to its Ombudsman (article 8d). Apart from the franchise for the Parliament, these rights amount to a watered-down version of external citizenship (diplomatic protection in a third country and free entry for Union citizens coming from there) and of denizenship (free movement and residence within the Union and the local franchise). The most important limitation is that Union citizenship becomes relevant only once a person lives in another member state of the Union or in a third country.[13] For the great majority of citizens residing permanently in their states of origin Union citizenship will remain quite irrelevant as long as the democratic significance of the parliamentary vote is diminished by the lack of legislative powers of this institution, and as long as no list of fundamental civil and social rights defines common standards and is backed up by judicial enforcement at the level of the Union.
The irony in the construction of Union citizenship is that, on the one hand, its list of rights is primarily relevant for migrants and - again apart from the parliamentary franchise - largely resembles the elements of enhanced denizenship many member states had introduced before for their settled immigrants, but, on the other hand, its definition of the population to whom these rights apply excludes third country aliens, i.e. the great majority of migrants living the territory of the Union. According to article 8 "[e]very person holding the nationality of a Member State shall be a citizen of the Union" and "[c]itizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby." The rights specified in 8a to 8d apply thus only to nationals of a member state. This makes access to the citizenship of the Union wholly dependent on the rules for acquisition, transmission and loss of its various national citizenships. With regard to these rules the Union has neither defined minimum standards nor attempted to harmonize them. The principle of free determination of nationality by each state has been left unconstrained. This is a highly paradoxical position to take. How can fifteen different procedures of admission lead to a single and common status of membership? The answer refers back to the present limitations of the content of Union citizenship. As long as the rights it confers add little to what people living in their countries of birth already enjoy by virtue of their national citizenship there will be little pressure for common standards of admission to national citizenship and thereby also to that of the Union. In this sense its architecture is supranational rather than transnational or postnational. It is like a thin roof resting on the separate and differently-shaped columns of national citizenships.
This lack of a transnational dimension in the construction of Union citizenship becomes especially glaring with regard to the possibilities of combining several citizenships of member states of the Union. Several members, among them Germany, Austria and Luxembourg still have a policy of strict avoidance of multiple citizenship resulting from naturalizations. As I have explained above, effective avoidance requires cooperation between both sending and receiving states. For this reason it is today more difficult to become a dual citizen of Germany and Austria than, for example, a dual citizen of Germany and Turkey. While a prohibition of multiple citizenship is easier to enforce between like-minded states within the Union, none of the objections mentioned in ß1(3) retains any weight. One could therefore assume that a policy of prohibiting dual citizenship between member states would be seen as unreasonable and opposed to the spirit of European integration. Yet, for the time being, the dogma of state sovereignty in determining nationality remains unchallenged.[14]
These are deficiencies of Union citizenship with regard to its present beneficiaries, but the more serious problem is that its architecture has major negative impacts for the third country aliens who remain outside its framework. There are three kinds of effects: missed opportunities of improving their position throughout the Union, increased inequality of their position between the different member states, and a relative deprivation of their status within member states.
First, the way in which Union citizenship was introduced has blocked a further improvement of denizenship for immigrants. One might have expected that in countries like France, Germany or Austria Union citizenship would break down constitutional barriers that had excluded foreign immigrants and even native-born foreigners from local voting rights or access to the civil service. However, the constitutional amendments which became necessary with the Maastricht treaty and which overruled previous definitions of these rights as the exclusive privilege of national citizens[15] reaffirmed the strict linkage between national and EU-citizenship. In contrast with enhanced denizenship, which derives immigrants' rights from their residence, these decisions emphasized that such rights were based on formal citizenship. This is why Union citizens can enjoy them even without a prolonged period of residence whereas foreign citizens born on the country remain excluded. Yet this move stripped the traditional conception of rational arguments that had been offered in its support. Making birth in the territory, or common descent, shared history and culture the defining criteria of nationhood has been defended on the grounds that people who share such characteristics are more likely to feel mutual obligations of solidarity and to acquire the knowledge necessary for participating in national political decisions or for exercising a public office. Being a national of another member state of the Union in no way indicates these qualifications for citizenship. If citizens have to be well-informed about their society and committed to its common good, then recent immigrants from other states of the Union hardly qualify better than long-term resident aliens from third countries. The rational solution would have been to give resident third country aliens and foreign Union citizens equal rights in these respects and to narrow the areas where national citizenship remains an essential condition to the national franchise and to sensitive areas of national security or high public offices.
Secondly, the existing diversity and inequality of rights of denizenship between the member states has been further highlighted by adding unequal access to Union citizenship. Different rules of naturalization and acquisition of citizenship at birth had previously implied that the same group of emigrants will have unequal opportunities of becoming citizens of their host countries. Now this same diversity reproduces within a single European space such inequality of opportunity and rights for groups of identical origins and periods of settlement. Suppose a family from Turkey splits up in the migration process with a brother going to Germany and a sister to Sweden. After five years the sister naturalizes and acquires thereby Union citizenship. She is now free to join her brother in Germany where she will enjoy not only free access to employment but also the franchise for local and European Parliament elections. Her brother who has lived in Germany all the time will remain in a considerably weaker position.
Thirdly, by transforming the traditional dichotomy into a trichotomy of national citizens, other Union citizens and third country aliens, the position of the latter has worsened directly as well as indirectly. Union citizen are exempt from laws regulating the employment of foreigners and can substitute for third country immigrants in areas of low wage and high risk employment. Indirectly, attempts to complete the right of free movement by abolishing internal border controls have had the effect of reinforcing external controls for the admission of third country aliens (the common visa policy and harmonization of asylum procedures) and have strengthened a recent wave of restrictive legislation against third country nationals in a number of member states.
How could these structural features be corrected in order to create a more relevant, more equal and more inclusive citizenship within the Union? There are a number of different answers which might be proposed as a response:
(1) Union citizenship could eventually replace the citizenship of the several member states. National citizenship would then become a residual and subordinate form of membership of a similar kind as the provincial citizenships that exist in federal states. Fundamental rights as well as the rules of acquisition, transmission and loss of citizenship would be the same throughout the Union. In the USA this transformation of the federation was completed only with the 14th amendment of 1868, i.e. after the Civil War. For Europe such a radical solution appears neither feasible nor desirable. Short of a major catastrophe such as a war or revolution there is little reason why the member states of the Union should no longer regard themselves as distinct political communities with separate memberships. Moreover, such a solution would completely abandon the transnational and postnational dynamics of liberal citizenship in favour or restoring the national model at a grand scale. While this would provide Union citizenship with a more comprehensive and relevant bundle of rights, it would also reestablish the old citizen-alien dichotomy.
(2) A second solution which addresses this latter problem directly has been suggested by the Migrants' Forum, an organization representing the interests of immigrants at the European Commission and Parliament: "Citizenship of the Union should be extended automatically to all third country nationals who have been lawfully resident in the Union for a period of five years or more."[16] In contrast with the first proposal which would abolish the difference between national and Union citizenship, this second one would do away with the distinction between Union citizens and residents from third countries. It would open a second avenue for acquiring Union citizenship bypassing the requirement of naturalization for third country nationals. What both paths towards Union citizenship would have in common is that it would be acquired automatically and as a bye-product (of national citizenship or of residence), rather than being chosen for its own sake. The drawback of this prima facie quite attractive idea is that it would probably freeze the present limitations of Union citizenship as well as the national framework for citizenship of the member states. Union citizenship would be seriously devalued in the eyes of citizens of the member states by reducing it to a generalized denizenship, disconnected from the notion of consensual membership in a political community. Any suggestion to increase the powers of the European Parliament or to enrich Union citizenship with more substantial rights could be resisted by pointing out that alien residents would be automatically included. At the same time, the proposal would relieve member states from any European pressure to reform and harmonize their rules for determining national citizenship. Turning native-born children of immigrants into foreigners by ius sanguinis, prohibitions of dual citizenship, excessive residence or assimilation requirements for naturalization, ethnic nationalist interpretations of citizenship would become even more legitimate than at present because they would no longer be of real concern for the project of a common European citizenship. Thus, abolishing the distinction between Union citizenship and third country denizenship would be achieved at the price of reinforcing the exclusionary aspects of national citizenship. Given the comparatively small relevance of the rights attached to Union citizenship compared to those which are tied to the national ones, this seems too high a price to pay.
(3) A third proposal would attempt to modify the second one by making direct access to Union citizenship for third country nationals optional rather than automatic. They could then acquire Union citizenship by naturalization either at the national level or directly at the European one. This would circumvent many of problems just mentioned. The requirement of consent from those who have not obtained citizenship at birth would highlight the distinction between societal membership based on residence and the political community conceived as a self-governing demos. The conditions for naturalization at the European level would probably gravitate towards the most liberal standards among the member states with strong assimilation requirements excluded a priori by the very plurality of European cultures. A European naturalization procedure could also provide a yardstick for harmonizing those in the member states. However, it is quite likely that such a second avenue for European citizenship would still considerably reduce both the pressure for member states to reform their national citizenship laws as well as the incentives for immigrants to opt for naturalization within their host countries. Security of residence, free movement across borders and access to employment would already come with European citizenship. The national franchise will not tempt too many to become citizens of their country of residence and native populations will continue to regard these populations as foreigners who have no claim to be included in their nations.
(4) I think there is an alternative which would bring Union citizenship not only into the orbit of the transnational dynamics of liberal citizenship, but would turn it into a motor of this development. This alternative would consist of a combination of reforms. First, it would retain a distinct status of Union citizenship that comes along with citizenship of a member state, but would put the harmonization of rules for acquisition, transmission and loss of national citizenships on the agenda of the Union. Naturalization could remain a matter of national law, but a common interest in controlling access to Union citizenship would produce a European guideline fixing maximum requirements for naturalization and for citizenship acquisition at birth.
Secondly, such a guideline could establish the general toleration for multiple citizenship among member states. The same principles could then be applied to dual citizenship between a member state and a third country. Problems of legal pluralism, lack of protection or unjustified accumulation of duties and rights would be addressed in the framework of international conventions and bilateral commissions.
The third and most important reform would supplement, rather than replace, Union citizenship with a harmonized status of Union denizenship for resident aliens from third countries. Ideally such a status would contain all the present rights attached to Union citizenship apart from the franchise for the European Parliament. Yet even a more modest list of rights focused on secure residence, free access to employment, free movement across internal Union borders, full civil and political liberties and equal social welfare benefits would bring considerable improvement and extend important rights of Union citizenship beyond the formal status. Such conditions of enhanced denizenship would remove he present perverse incentives for naturalization as an escape route from discriminatory laws against foreigners.[17] Naturalization could only then express a desire for full political integration into a national political community as well as an emerging European polity.
[12]. Residence rights remain generally qualified by a requirement of employment or other independent income.
[13].Member states may even opt out of some provisions of Union citizenship. Luxembourg and Belgium have, for example, delayed the implementation of local voting rights for Union citizens from other member states in municipalities where the share of foreigners surpasses a certain threshold. In recent municipal elections in Berlin and Vienna foreign Union citizens could only vote at the level of local districts, but not for the local parliaments. The reason for this exclusion was that these cities are also federal provinces and Union citizenship does not confer the franchise at provincial levels.
[14]. In this field the initiative lies with the Council of Europe rather than the European Union. A new Draft European Convention on Nationality has been worked out by the Parliamentary Committee of the Council of Europe (Document 7665, Sept. 1996) which proposes more liberal standards for naturalization and multiple citizenship, but allows signatory states to opt out of most provisions.
[15]. See for example the decision of the German Federal Constitutional Court of 31 October 1990 repealing laws of the provinces of Schleswig-Holstein and Hamburg that would have introduced a limited local franchise for alien residents (based on reciprocity, i.e. only for nationals of countries which grant foreigners the local franchise in the case of Schleswig-Holstein and reduced to the district level for Hamburg).
[16]. Proposals for the Revision of the Treaty on European Union at the Intergovernmental Conference of 1996, in: The Forum Series No. 2, Brussels, 1996, p. 17.
[17]. For a more extensive discussion of the effects of laws on foreigners and naturalization requirements on naturalization propensities see Baub^ck (1994:102-15).