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40 Experiences of EU citizenship at the sub-national level • Katherine E. Tonkiss

40 Experiences of EU citizenship at the sub-national level • Katherine E. Tonkiss

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EU citizenship at the sub-national level



of transnational citizenship in developing robust normative accounts of transnational and global

citizenship.

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,

2004: 107–8).

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

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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

member states.

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

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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.

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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

belonging.



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.

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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

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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.



Conclusion

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.

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Notes

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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41

Contested citizenship in Bosnia

and Herzegovina

Elena Cirkovic



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

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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

(Arendt, 1958).

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

Bosnia-Herzegovina.

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.

456



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.

457



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40 Experiences of EU citizenship at the sub-national level • Katherine E. Tonkiss

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