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40 Experiences of EU citizenship at the sub-national level • Katherine E. Tonkiss
EU citizenship at the sub-national level
of transnational citizenship in developing robust normative accounts of transnational and global
The chapter is structured as follows: after first providing an overview of the development
of EU citizenship, the example of EU migrants in the UK is explored, with specific attention
paid to the ways in which an underlying sense of national loyalty overtly impacts on the full
realization of EU citizenship through continued constructions of Self and Other on the basis
of national membership. It is then suggested that focusing on the local level offers the scope to
address these challenges, before finally an argument in favour of transnational citizenship as both
status and practice is presented, together with reflections on the implications of this analysis for
theorizing about global citizenship.
The development of EU citizenship
EU citizenship was formally created with the signing of the Treaty on European Union (the
Maastricht Treaty), but its progression can be traced through the development of core rights to
freedom of movement in the history of European integration. Although the realization of such
rights was initially a product of economic interdependence, their enhancement through the
European Court of Justice and eventually the Maastricht Treaty led to the recognition of a range
of formal civil rights entitlements for citizens of member states throughout the EU (Cabrera,
The creation of the European Coal and Steel Community in 1951 provided the first free
movement rights across national boundaries in Europe. Restrictions on movement for qualified
coal and steel workers were removed, so that workers in these industries could, for the first time,
gain employment in any of the participating nation-states. These rights were then expanded
with the creation of the European Economic Community (EEC) in 1957 (in the Treaty of
Rome), which provided all workers with the right to gain employment in any member state and
protected those workers from any nationality-based discrimination with respect to employment
and working conditions (Baldoni, 2003: 4–5).
EEC Regulation 1612/68 (1968) built on the Treaty of Rome provisions, adding social rights
such as equal access to the same ‘social and tax advantages of national workers’ and the ‘rights
and benefits accorded to national workers in matters of housing’. In addition, this article made a
further leap forward in setting out the rights of family members to reside with workers regardless
of whether they would be in employment or whether they were a national of a member state
(whereas the right to free movement for workers only applied to nationals of member states).
Throughout the 1970s, the European Court of Justice then played a key role in developing
free movement rights. This included expanding the definition of ‘worker’ to include temporary
workers and those taking up apprenticeships and university places. Later in 1990, rights to free
movement were also expanded to include pensioners and the unemployed (Baldoni, 2003: 8–9).
The development of free movement rights from their initial inception as economic rights
to a more inclusive and social understanding of what free movement should include can be
viewed as an increasing recognition of the European migrant as an individual, rather than solely
economic, unit (Baldoni, 2003:10; Cabrera, 2010: 182–4). This transition is epitomized in the
1992 Maastricht Treaty, which formally established the EU and EU citizenship. EU citizenship
incorporates the economic and social rights of freedom of movement, along with substantial
political rights as follows: (1) the right ‘to move and reside freely within the territory of the
Member States’; (2) the right ‘to vote and to stand as a candidate at municipal elections in
the Member State in which he resides, under the same conditions as nationals of that state’;
(3) the right ‘to protection by the diplomatic or consular authorities of any Member State, on
Katherine E. Tonkiss
the same conditions as the nationals of that State’; and (4) the right ‘to petition the European
Parliament’ (Treaty on EU, 1992).
EU citizenship, building on the development of freedom of movement, can therefore be
viewed as a bundle of economic, social, and political rights. Further enhanced by the incorporation of the 1985 Schengen Agreement2 into EU legislation in 1999, the rights of EU citizens
across the Union are substantial. There are some limits, specifically as regards third-country
nationals who reside, often on a long-term basis, within member states but do not enjoy EU
citizenship. This matter has been taken up by the EU’s Economic and Social Committee, which
has argued in favour of granting EU citizenship rights to long-term third-country nationals, and
the fact that all EU member states provide third-country nationals with the same legal status
after five years is seen as a step in the right direction (Maas, 2007: 88–90). However, at the time
of writing, EU citizenship does still derive from member-state citizenship, and so many of the
concerns about the citizenship status of third-country nationals remain unaddressed.
This demonstrates that EU and member-state citizenships are inherently bound together and
that while member state citizenship is commonly tied to a sense of national identity, a robust
form of European identity on the same model has not emerged – nor has it been much sought
after outside normative academic exploration (see, for example, Maas, 2007; Nicolaidis, 2004).
Yet enlargements of the EU in the early twenty-first century brought with them considerable
debate over the nature of EU identity (Nicolaidis, 2004), as well as some concern over the level
of migration likely as citizens of these new member states gained rights to freedom of movement
given the extension of EU citizenship.
In 2004, a group of eight new Eastern European member states gained accession to the
EU (the ‘A8’ states) and then in 2007 two further Eastern European states (the ‘A2’ states)
also gained accession.3 There was widespread concern in many member states that A8 and A2
migrants would ‘flood’ into existing member states, creating excessive pressure on jobs, homes,
and social welfare (Pijpers, 2006). As a result, transitional arrangements lasting between two and
seven years were introduced, which limited the migration of A8 and A2 member state citizens,
with the exception of the UK, Sweden and Ireland. In these countries, it was thought that A8
and A2 migrants could fill labour shortages in particular sectors of their economies.4
EU citizens in the UK
For some commentators, the very concerns that led to transitional arrangements in other member
states were realized in these three member states that allowed for full freedom of movement rights,
with significantly problematic effects. Here, I focus on the UK experience as a case study for the
illustration of the intersection between member-state citizenship and transnational citizenship
rights that facilitate the kind of unrestricted migration witnessed by the UK from the accession
In the UK, politicians and the media alike lambasted the decision to allow unrestricted
movement in 2004 when the A8 states acceded to the EU and, indeed, migration from the A8
member states was significantly high. Statistics show dramatically increasing levels of migration to
the UK from the EU from the beginning of accession state migration in 2004 and increasing again
with the accession of the A2 states in 2007 – when transitional arrangements were imposed,
given the 2004 experience (Office for National Statistics, 2012).5 While economic recession has
slowed this migration somewhat, as have the benefits of EU investment in the Eastern European
member states, migration levels from the EU remain relatively high. There are also concerns
about the impact of the future accession of new member states, with the Coalition Government
(2010–) promising transitional arrangements to avoid similar circumstances arising when other
EU citizenship at the sub-national level
potential member states such as Turkey gain accession (House of Commons Home Affairs
Committee, 2011: 38–9).
Despite this significant increase in migration from elsewhere in the EU, there is no evidence
to suggest that this migration has had detrimental effects on the availability of jobs for British
citizens. In fact, quite the contrary: the evidence suggests that the migration has had a positive effect on the economy, as migrants fill labour shortages (Blanchflower et al. 2007), a trend
that is mirrored elsewhere in the EU (Lemos and Portes, 2008), as Western European states in
particular face the challenges posed by an ageing population which leaves a smaller workforce
supporting higher costs associated with pensions and social care (Maniak, 2006: 68–9). Research
suggests that the ‘wage impact’ of A8 and A2 immigration on ‘native’ citizens in the UK is very small
and that there has been no increase in the claims made for unemployment support as a result of
the migration (Blanchflower et al. 2007: 20).
However, while it may be the case that the benefits of Eastern European migration have far
outweighed the costs for the UK, perceptions of this migration amongst the British population
are quite different. At the time of accession, there was considerable concern about the impact of
Eastern European migration on the UK, with attention focusing particularly on the perceived
detrimental economic effects of the expected mass migration and on the potential impact on
public services and the cost of social welfare benefits. In their extensive analysis of media reports
at the time of A2 migration, Balabanova and Balch (2010) highlight how much of the debate at
this time was framed in such terms. Concerns about the detrimental impacts of this migration on
national citizens have not diminished; for example, they resurfaced once again in 2013, in relation
to the removal of transitional arrangements for A2 migrants, with some sources reporting that
migration from the A2 states will total 50,000 a year for the first five years following the removal
of restrictions and the government considering measures to limit those migrants’ access to social
welfare benefits and public services such as the National Health Service (BBC News, 2013).
Qualitative research demonstrates how these perceptions of threat associated with A8 and A2
migration have been mirrored within local communities in the UK. Extensive research in the
counties of Herefordshire (in the West Midlands region of England) and Lincolnshire (in the
East Midlands region of England) has shown how not only concerns over the consequences of
mass migration for the economy and for public services, but also perceptions of cultural threat,
play an important part in driving negative attitudes towards EU migration – the result of a sense
of national loyalty which also underpins perceptions of economic threat (Tonkiss, 2013a). Here,
these cultural threat perceptions are driven by the negative stereotyping of A8 and A2 migrants
as ‘benefits scroungers’ who will move to the UK just to make use of its social welfare system
and bring with them social ills such as crime and excessive drinking. Much of this perception
of cultural threat is bound up in the image of Eastern European migrants as ‘gypsies’, which
thus invokes many of the negative stereotypes commonly associated with gypsy and traveller
communities. While traditionally lines of difference have been drawn according to race, it is
apparent that in this case, despite a lack of racial difference, lines of difference are drawn and
these migrants are viewed as less desirable (McDowell, 2009: 29).
Despite the legal provisions of the free movement regime of the EU meaning that all those
classed as EU citizens are free to migrate, these perceptions of economic and cultural threat have
important implications for the full realization of EU citizenship for those who have migrated to
the UK from elsewhere in Europe – and, indeed, similar trends have been reported in other EU
member states (McLaren, 2002). It appears that, despite the development of EU citizenship and
the extensive use of EU citizenship rights for migration and settlement in alternative member
states, these contexts remain characterized by strong national loyalty, which informs perceptions
of both economic and cultural threat.
Katherine E. Tonkiss
This has had the consequence in the UK that attempts may be made to curtail the rights of
European migrants to access core public services, despite their citizenship status. At a less tangible level, the phenomena described have also resulted in Eastern European migrants remaining
excluded from the lives of their communities (Thorp, 2009: 119–21; Tonkiss, 2013b: ch.5).
Communities remain defined in national terms, and so European migrants are asked to assimilate to this way of life in order to integrate effectively, despite the fact that they have extensive
citizenship rights as Europeans without any obligation to adapt to the national way of life,
and indeed by the fact that EU citizens often migrate temporarily for seasonal employment
and so have a limited desire to form attachment and sense of belonging to the host nation.
Furthermore, defining integration in terms of a national group assumes the existence of a single,
fixed national group, whereas in reality the UK represents a complex combination of multiple
national groups, with English, Scottish, Irish and Welsh national groups all coexisting within a
British state which is the recognised EU member state. There may not, therefore, be a single
‘way of life’ into which migrants should integrate.
This expectation of integration into a community defined in national terms has important
implications, because it serves to limit the realization of the equal-opportunity goal of the
citizenship regime by limiting access to social, cultural, and economic resources – or, as Thorp
has described it, migrants are excluded from ‘the detailed definition and realization’ of general
well-being (2009: 132). While, as has been noted in the first section of this chapter, EU citizenship has expanded over the second half of the twentieth century to incorporate political, social,
and economic rights, in practice it is often defined as a purely economic set of rights – allowing,
to some extent, for EU migrants to work in alternative member states to the benefit of that
member state, but problematizing the realization of the accompanying social and economic
rights for those same migrants.
EU citizenship and nation-state citizenship are intended to coexist. As the Treaty on the
Functioning of the EU (2008) states: ‘Citizenship of the Union is hereby established. Every
person holding the nationality of a Member State shall be a citizen of the Union. Citizenship
of the Union shall be additional to and not replace national citizenship.’ Yet, as has been highlighted in this analysis of research on the subject, the exercise of European citizenship – that
is, moving freely to a new member state to live, work, and potentially be politically active – is
problematized by this coexistence of national and EU citizenships. Some commentators have
argued that the coexistence of European and member state citizenship is necessary for the pragmatic reason that the alternative – an EU citizenship to replace member-state citizenship – is
undesirable given the poor record of democratic participation at the EU level compared with
that at the national level (Bellamy, 2008). The problem, however, is that the coexistence of
both citizenship regimes serves to limit the extent to which the rights embodied in the EU
citizenship regime are fully realized. Repositioning citizenship at an EU level is challenged
by the persistence of member-state citizenship, which relies on the construction of Self and
Other along national lines of difference. EU citizenship, in contrast, necessitates overlooking
those exact constructions and invokes a far more expansive conception of the boundaries of
The everyday practice of transnational citizenship
Far from suggesting that the challenges of realizing EU citizenship identified in this chapter
should give us cause to abandon the development of transnational forms of citizenship, this discussion of the complexities involved in such forms of citizenship demonstrates the need to engage
carefully and robustly with the everyday struggles over citizenship within local communities.
EU citizenship at the sub-national level
These communities are where conflicts between national and transnational understandings of
citizenship rights are played out, and so building a robust form of transnational citizenship
is inherently linked to addressing this local level. Hence, scholars of transnational and global
citizenship should pay attention to the local as well as the global both in developing normative
theories of citizenship and in analysing the emergence of such citizenship regimes; and they
must consider citizenship not only as status but also as a practice, the experience of which can
have profound implications for the full realization of citizenship as status.
Research suggests that the transformation of citizenship practice at a local level is central to the
full realization of transnational citizenship rights, and generally this is taken to mean the development of a context in which all citizens – which means, in the EU example, both those holding
member-state citizenship and those holding EU citizenship only – are able to contribute to discussions about the shape of the place in which they live. Conceived of as ‘thick discourse’, that is the
discursive construction of place (Tonkiss, 2013b: ch.6), where migrants are participating in ‘placeshaping’ activities with local governance actors (Thorp, 2009: 121–2), such approaches engage
all individuals in discursive processes and therefore provide the opportunity for all individuals to
shape the place in which they live and so overcome the structures of exclusion elaborated on in
the previous section.
The reason that local-level deliberative processes are so central to the realization of transnational citizenship rights and overcoming these structures of exclusion is twofold. First, research
into community cohesion demonstrates that engaging in group discussion over key issues in
the local community engages individuals in a common task and brings about meaningful interactions that are not focused on differences and require individuals to work together despite
those differences. This ‘banal transgression’ therefore acts as an important means of overcoming
the perceptions of difference and negative stereotyping that underpin structures of exclusion
(Amin, 2002; see also Gastil, 2000: 120).
Second, by engaging in such activities all members of the community are able to shape their
local context and in doing so overcome the structures of exclusion by shaping that place to reflect
its entire population rather than just the majority cultural group. This is in effect a process of
decoupling the local context from the majority-group (national) culture, in order for access to
the social and political rights of citizenship to be available beyond membership of the national
group (Tonkiss, 2013a). There are challenges to realizing this form of deliberative process – not
least, that minorities will have less influence in a discursive context that is dominated by a large
majority group (Carpini et al. 2004); yet there is evidence to suggest that, with appropriate
institutional support, these deliberative processes will be effective in overcoming the challenges
of inter-group differences that are prevalent in the development of transnational citizenship
practice such as that witnessed in the EU example (Goodwin, 2009: 101).
This discussion is not intended to offer solutions to the challenges of realizing EU citizenship, or
indeed to address similar challenges for transnational citizenship more generally. Rather, it serves
to highlight the importance of analysing the local experiences of citizenship transformation and
of addressing the challenges that arise at this level in building robust conceptions of transnational
citizenship more generally. Citizenship as status refers to the rights and responsibilities denoted by
the designation of an individual as a citizen of a transnational unit such as the EU. Citizenship as
practice ‘refers to the activities of citizenship linked to citizen rights and responsibilities’ (Durose
et al. 2009: 3). It is this practice of citizenship which is shown, in the EU example that has been
considered in this chapter, as so important in the realization of the status of transnational citizen, as
a means of ‘renegotiating citizenship’ (ibid.: 8) from national to transnational.
Indeed, some of the ways in which transnational citizenship has been conceived already
highlight the local, active nature of changes in citizenship regimes. For example, Cabrera
Katherine E. Tonkiss
defines global citizenship as a practice undertaken by individual activists reaching across national
borders and boundaries to secure the rights and institutions that will inform a fully global citizenship regime (2010: 31) and highlights that while commonly a theoretical division is drawn
between republican citizenship (as the active practice of citizenship informed by shared values
and beliefs) and liberal citizenship (as the recognition of the rights embodied in a citizenship
status regardless of any shared culture), an ‘active liberal’ citizenship may fall between these
two conceptions (ibid.: 18). This form of citizenship is strongly informed by the recognition
of rights regardless of cultural group, but also highlights citizenship as a practice that is engaged
in by active citizens.
The discussion here suggests support for such a conception of citizenship. Yet it has also
highlighted that exploring and analysing the practice of citizenship means focusing not only
on the practice of those individuals who are actively attempting to bring about transnational
citizenship – as in Cabrera’s definition – but also on the everyday lives of local communities
and the practices of citizenship that they embody as sites where the repositioning of citizenship
is actually occurring. In the EU, constructions of Self and Other continue to be informed by
national lines of difference and this is problematic for the full realization of the rights that are
intended to be recognized under the provisions of EU citizenship.Transforming these constructions
is dependent on transformations in the contexts in which those constructions are built, and
this points to a recognition that the full realization of transnational citizenship rights in the EU
extends far beyond the legal recognition of EU citizenship status.
This chapter has explored the development of EU citizenship, specifically focusing on tensions
between national and European forms of citizenship and how struggles over the positioning
of citizenship between these two regimes impacts on the full realization of EU citizenship
itself. Through a discussion of the migration of EU citizens to the UK, it has highlighted the
tensions that exist between the transnational citizenship rights embodied by the migration of
EU citizens on the one hand and persistent forms of national identity and loyalty on the other.
These tensions in themselves can challenge the extent to which the rights of EU citizens who
have migrated to alternative member states are realized, because they can limit the realization of
equality of opportunity and equal quality of life for EU citizens. To return to the initial overview of the development of the EU citizenship regime, this suggests that the active realization
of the social and political aspects of citizenship developed over the past half century are limited
by the persistence of the citizenship regimes of the member states.
The existence of challenges to the coexistence of national and transnational forms of citizenship does not necessarily mean that transnational citizenship is on the wane. On the contrary,
research shows that discursive processes at the most local level are really central to realizing
full transnational citizenship rights. Yet what this tells us is that the realization of transnational
citizenship is dependent on accounting for such local-level transformations and thus that those
who are working to conceptualize transnational or even fully global citizenship regimes need
to build consideration of the local-level experience of repositioning citizenship into their theories. Further, it emphasizes the importance of recognizing that citizenship is both a status and
a practice and that the status of citizenship may be dependent on the practice of citizenship in
constructing a context within which the boundaries of belonging can be renegotiated. This is
practice not just by those actively attempting to build transnational citizenship, but also citizenship
as it is practised by citizens in their everyday lives and as it is experienced in local communities
on an everyday basis.
EU citizenship at the sub-national level
1 While acknowledging the multiplicity of forms of identity brought about by the English, Scottish,
Welsh, and Irish nationalities which coexist in the UK, this chapter does not consider these differences
in detail. Such discussion is far beyond the scope of the chapter. It should however be recognized
that the coexistence of multiple national identities and loyalties within nation-states further reflects the
struggles over the positioning of citizenship that are discussed here.
2 The Schengen Agreement, which came into force in 1999, has removed all border controls for individuals travelling between states that are party to the agreement (within the so-called ‘Schengen Area’).
All member states of the EU are part of the Schengen Agreement, with the exception of the UK and
the Republic of Ireland, which elected to maintain their own border controls; and Bulgaria, Romania,
and Cyprus whose membership is still pending. Norway, Iceland, and Switzerland have also signed the
Schengen Agreement, although they are not member states of the EU.
3 The A8 states are the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia.
The A2 states are Romania and Bulgaria.
4 These states did still impose some degree of temporary restrictions on migrants from the accession states
in terms of access to social rights such as welfare benefits, but not in terms of their right to migrate.
5 Other than students and self-sufficient migrants, those A2 migrants wishing to enter the UK labour market
were required to obtain an ‘Accession Worker Card’ to prove that they were authorized to work in the
UK by the UK Border Agency. This transitional scheme ended on 31 December 2013, after which date
Romanian and Bulgarian citizens obtained full rights to freedom of movement to the UK.
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the European press’. European Journal of Communication. 25 (4): 382–97.
Baldoni, E. (2003) ‘The free movement of persons in the EU: a legal historical overview’. Pioneur Working
Paper No. 2. Available online at www.obets.ua.es/pioneur/ (accessed 6 December 2012).
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online at www.bbc.co.uk/news (accessed 21 February 2013).
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Studies. 12 (6): 597–611.
Blanchflower, D. G., Saleheen, J., and Shadforth, C. (2007) The impact of recent migration from Eastern Europe
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Cabrera, L. (2004) Political theory of global justice. London: Routledge.
Cabrera, L. (2010) The practice of global citizenship. Cambridge: Cambridge University Press.
Carpini, M. X. D., Cook, F. L., and Jacobs, L. R. (2004) ‘Public deliberation, discursive participation, and
citizen engagement: a review of the empirical literature’. Annual Review of Political Science. 7: 314–44.
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Katherine E. Tonkiss
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Contested citizenship in Bosnia
According to Article 15 of the Universal Declaration of Human Rights (UDHR), the right to
nationality and citizenship can be considered as a universal human right: ‘(1) everyone has the
right to nationality’ and ‘(2) no one shall be arbitrarily deprived of his nationality nor denied the
right to change his nationality’. However, the qualifications of the bearer of ‘universal’ rights
are unspecified. Equating nationality with citizenship has contributed to a situation where
people(s) have to fit the category of being a ‘national’ in order to obtain citizenship. The
question of access to national and international rights remains the question of citizenship, and
nationality law remains at the core of domestic jurisdiction and state sovereignty. Thus, while
the international human rights system and the international community recognize the existence
of a universal subject as the bearer of human rights, this recognition is connected to particular
concepts of citizenship, statehood, collective identities, and belonging.
This chapter analyses the struggles over citizenship in Bosnia and Herzegovina (BiH)
following the General Framework Agreement for Peace (GFAP) in BiH (hereinafter ‘the
Dayton Peace Agreement’), initialled in Dayton on 21 November 1995 and signed in Paris
on 14 December 1995.1 The Dayton Peace Agreement ended the 1992–5 war, which ensued
as part of the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY). As a
post-conflict society, the Bosnian case demonstrates the ambiguity of the concept of citizenship both domestically and internationally. The definition of citizenship in BiH is rooted in the
Dayton Constitution, which emerged as part of the GFAP’s broader architecture.2 However,
the Constitution creates a distinction between two categories of citizens on the basis of their
ethnicity. This exceptional situation is related to the broader political context in which the
peace negotiations took place. More specifically, this chapter refers to the case, Sejdic and Finci
v. Bosnia-Herzegovina (hereinafter ‘Sejdic and Finci’),3 decided in 2009 by the Grand Chamber of
the European Court of Human Rights (ECtHR). It is the first case in which the ECtHR applied
the general prohibition of discrimination in Protocol No.12 to the European Convention on
Human Rights (ECHR).
Bosnian citizenship struggles reveal that the relationship between citizenship and sovereignty
is not clearly defined in international human rights law. As critical approaches to international
law have observed, citizenship as a political identity relates to the relationship between cultural
differences and sovereignty doctrine.4 Thus, this chapter positions citizenship within the debates
over the universality of the subject as a bearer of human rights in international law and argues
that this subject is more likely to be qualified by his or her communal affiliation. In other words, some
individuals qualify as universal subjects in the international community primarily as citizens of
states or as members of a recognized sovereign state, while others see their existence limited
as a result either of lack of citizenship (statelessness) or of compromised citizenship (e.g. as a
consequence of discriminatory laws and practices enforced by the state). In the case of BiH, the
classic form of sovereignty has broken down,5 which has resulted in compromised citizenship
and capacity of individuals to obtain full recognition as rights-bearing and political subjects
This chapter consists of two broad sections. The first section provides an analysis of the
Sejdic and Finci case. The contradictory aspect of the Dayton Constitution and its embeddedness
in ethnic principles, where the Bosnian subject becomes primarily a local ethnic subject and not
a universal citizen. The framework of analysis is limited to Bosnia’s recent history. The second
section briefly discusses the influence of the international community in BiH and problems of
equating the nation with ethnicity and territoriality, especially when the definition of what constitutes a nation is a subject of debate.6 The question of what it means to be a citizen, at global,
regional, or local levels, relates to the legitimacy of rule and the capacity of human beings to act
as political subjects. Historically, the international community has perceived state legitimacy in
international law in connection with forms of rule and notions of who is capable of self-rule.
Thus, the formation of citizenship in BiH needs to be viewed in the broader historical context
where the international community generates doctrines and political strategies in spaces it views
as standing at the margins of, or outside, its borders.
Sejdic and Finci and the institutionalization
of discrimination in BiH
The plaintiffs in Sejdic and Finci, Jacob Finci and Dervo Sejdic, are Jewish and Roma respectively,
and citizens of BiH. The applicants complained of their ineligibility to stand for election to
the Presidency and the House of Peoples of the Parliamentary Assembly, as stipulated by the
Constitution of BiH and the corresponding provisions of the Election Act 2001, solely on
the ground of their ethnic origins. The Constitution and the provisions for internal governing
structures of BiH are part of Annex 4 of the Dayton Peace Agreement. BiH is divided into three
zones, in which one of the three constituent peoples has an absolute majority and other groups
are minorities. It is thus a federal/confederal state, which consists of two ethnically defined
entities: the mono-national Serbian Republic or Republika Srpska (RS) and the bi-national
Federation of Bosnia-Herzegovina (FBIH). The district of Brcko in northeast Bosnia is a selfgoverning body owned by two entities, but placed under the direct sovereignty of the state of
The Sejdic and Finci decision provides an empirical window into some broader questions
about the status of minority rights protection and the relationship between citizenship and sovereignty. It showed clearly that BiH needed a constitutional reform. When Mr. Finci informed
the Central Election Commission of his intentions to stand for election to the Presidency and
the House of Peoples of the Parliamentary Assembly, he received written confirmation from the
Central Election Commission that he was ineligible to stand for such elections because of his
Jewish origin. The Council of Europe has thus stressed the need for changes to the electoral
procedures, since they are in conflict with the ECHR. For the reforms to be successful, various
discriminatory elements would need to be abolished, in particular as they relate to the political
rights of different groups of the Bosnian population.
Contested citizenship: Bosnia and Herzegovina
The most striking characteristic of the Dayton Constitution is that it was de facto adopted
during peace negotiations. As such it is a part of an international treaty. On the one hand, the
Bosnian Constitution enshrines democracy despite the lack of democratic participation at its
very origin. Article 1(2) states that Bosnia and Herzegovina shall be a democratic state, which shall
operate under the rule of law and with free and democratic elections. Article 11(1) states that
BiH and both Entities shall ensure the highest level of internationally recognized human rights
and fundamental freedoms. The Constitution provides that certain rights and fundamental freedoms shall have priority over all other law and that an amendment may not affect these rights
adversely. The Parliament of BiH can amend the Constitution.
The Preamble of the Constitution of BiH states that ‘constituent peoples are the adopters of the Constitution of BiH, i.e. Bosniacs, Croats, and Serbs, as constituent peoples (along
with Others), and citizens of Bosnia and Herzegovina’. The Constitution does not define the
‘Others’, but it also does not refer to an abstract citizen without ethnic identification. Under
Article V, the Presidency of Bosnia and Herzegovina consists of three Members: one Bosniac
and one Croat, each directly elected from the territory of the FBIH, and one Serb directly
elected from the territory of the RS. Similarly, Article IV.1 relating to the composition of
the second chamber of parliament, the House of Peoples, indicates that five Croats and five
Bosniacs are to be chosen as Delegates of the FBIH by the Bosnian and Croat Delegates to
the House of Peoples of the Federation, while the five Serbian Delegates of the RS are to be
chosen by the National Assembly of the Republic. Nine members of the House of Peoples
shall comprise a quorum, provided that at least three Bosniac, three Croat, and three Serb
Delegates are present. As stipulated in Article IV.3, all legislation shall require the approval
of both chambers. The Delegates and Members shall make their best efforts to see that the
majority includes at least one-third of the votes of Delegates or Members from the territory
of each Entity.
The Bosnian Constitution is based on the authority of the Dayton Peace Agreement, as well as
the decisions of the Constitutional Court of BiH. Importantly, the 2000 Constituent Peoples’ Decision
of the BiH Constitutional Court7 has redefined the principle of constituency of peoples in the sense
that now there are three constituent ethnic groups in the entire territory of BiH. Four partial
Decisions of 2000 related to specific provisions of the Constitutions of the Entities of Bosnia and
Herzegovina, which have been found to be in contravention of the 1995 Constitution of Bosnia
and Herzegovina. Thus the Constitutional Court derived from the constitution the normative
principle of multi-ethnicity challenging institutional segregation and national homogenization
within the State institutions. Further, it emphasized the principle of collective equality of constituent peoples and the equality of the collective ethnic representation of the three constituent
peoples. And finally, the Constitutional Court stressed that the rule regarding the prohibition
of discrimination included the prohibition of de jure discrimination, the prohibition of de facto
discrimination, and the prohibition of past de jure discrimination (Banovic and Gavric, 2011,
pp. 7–9). Because of persisting political obstacles to the implementation of the decision, it was
referred to the Office of the High Representative (OHR), which resulted in the 2002 Decision
Amending the Constitution of the Federation of Bosnia and Herzegovina.8 The consequent reorganization of all entity institutions also introduced mandatory quotas of representation in all parts
of government for all three constituent ethnic groups and for the ‘Others’ in both entities.
However, as has been noted above, the House of Peoples and the Parliamentary Assembly
(the second chamber) and the Presidency are composed only of persons belonging to the three
constituent peoples. Furthermore, the Constitutional Court could not make an impact at the
state level and the recognition of the political rights of ‘Others’ could only be resolved through
the ECtHR as a supranational remedy.