"Get Back to Where You Once Belonged": Identity, Citizenship, and Exclusion in Europe

Human Rights Quarterly

Volumn 20, Issue 3, 1998, Pages 592-627

  Bhabha, Jacqueline ^a  

^a NONE

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EID: 0347761543     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (224)

1. See D. WYATT & A. DASHWOOD, EUROPEAN COMMUNITY LAW 31-51 (3d ed. 1993). Initially conceived of as a purely consultative body, the European Parliament (EP) has been given a progressively increased role in the legislative process with decision making and veto powers. See TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, arts. 189(b), 189(c), opened for signature 25 Mar. 1957, 298 U.N.T.S. 11 (1957) (entered into force 1 Jan. 1958), reprinted in EUROPEAN COMMUNITY LAW: SELECTED DOCUMENTS 4 (George A. Bermann et al. eds., 1993), available on 〈http://www2.echo.lu/legal/en/treaties/ec/ectreaty.html〉 [hereinafter EC TREATY]. (The name of the European Economic Community was changed by the Treaty on European Union, TREATY ON EUROPEAN UNION, 7 Feb. 1992, O.J. (C 224) 1, [1992] 1 C.M.L.R. 573 (1992), 31 I.L.M. 247 (1992) [hereinafter TEU], to the European Community, and the founding treaty was similarly renamed the European Community Treaty.) Its political role has also changed, to correct the EU's perceived democratic deficit. Before 1979, members of the EP were selected from the membership of national parliaments and delegated by them. Since 1979, direct elections of EP members by European voters takes place every five years. These changes have increased the Parliament's power, profile, and importance, moving it from a debating chamber to a more vibrant participant in EU affairs.
2. See D. WYATT & A. DASHWOOD, EUROPEAN COMMUNITY LAW 31-51 (3d ed. 1993). Initially conceived of as a purely consultative body, the European Parliament (EP) has been given a progressively increased role in the legislative process with decision making and veto powers. See TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, arts. 189(b), 189(c), opened for signature 25 Mar. 1957, 298 U.N.T.S. 11 (1957) (entered into force 1 Jan. 1958), reprinted in EUROPEAN COMMUNITY LAW: SELECTED DOCUMENTS 4 (George A. Bermann et al. eds., 1993), available on 〈http://www2.echo.lu/legal/en/treaties/ec/ectreaty.html〉 [hereinafter EC TREATY]. (The name of the European Economic Community was changed by the Treaty on European Union, TREATY ON EUROPEAN UNION, 7 Feb. 1992, O.J. (C 224) 1, [1992] 1 C.M.L.R. 573 (1992), 31 I.L.M. 247 (1992) [hereinafter TEU], to the European Community, and the founding treaty was similarly renamed the European Community Treaty.) Its political role has also changed, to correct the EU's perceived democratic deficit. Before 1979, members of the EP were selected from the membership of national parliaments and delegated by them. Since 1979, direct elections of EP members by European voters takes place every five years. These changes have increased the Parliament's power, profile, and importance, moving it from a debating chamber to a more vibrant participant in EU affairs.
3. See D. WYATT & A. DASHWOOD, EUROPEAN COMMUNITY LAW 31-51 (3d ed. 1993). Initially conceived of as a purely consultative body, the European Parliament (EP) has been given a progressively increased role in the legislative process with decision making and veto powers. See TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, arts. 189(b), 189(c), opened for signature 25 Mar. 1957, 298 U.N.T.S. 11 (1957) (entered into force 1 Jan. 1958), reprinted in EUROPEAN COMMUNITY LAW: SELECTED DOCUMENTS 4 (George A. Bermann et al. eds., 1993), available on 〈http://www2.echo.lu/legal/en/treaties/ec/ectreaty.html〉 [hereinafter EC TREATY]. (The name of the European Economic Community was changed by the Treaty on European Union, TREATY ON EUROPEAN UNION, 7 Feb. 1992, O.J. (C 224) 1, [1992] 1 C.M.L.R. 573 (1992), 31 I.L.M. 247 (1992) [hereinafter TEU], to the European Community, and the founding treaty was similarly renamed the European Community Treaty.) Its political role has also changed, to correct the EU's perceived democratic deficit. Before 1979, members of the EP were selected from the membership of national parliaments and delegated by them. Since 1979, direct elections of EP members by European voters takes place every five years. These changes have increased the Parliament's power, profile, and importance, moving it from a debating chamber to a more vibrant participant in EU affairs.
4. See D. WYATT & A. DASHWOOD, EUROPEAN COMMUNITY LAW 31-51 (3d ed. 1993). Initially conceived of as a purely consultative body, the European Parliament (EP) has been given a progressively increased role in the legislative process with decision making and veto powers. See TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, arts. 189(b), 189(c), opened for signature 25 Mar. 1957, 298 U.N.T.S. 11 (1957) (entered into force 1 Jan. 1958), reprinted in EUROPEAN COMMUNITY LAW: SELECTED DOCUMENTS 4 (George A. Bermann et al. eds., 1993), available on 〈http://www2.echo.lu/legal/en/treaties/ec/ectreaty.html〉 [hereinafter EC TREATY]. (The name of the European Economic Community was changed by the Treaty on European Union, TREATY ON EUROPEAN UNION, 7 Feb. 1992, O.J. (C 224) 1, [1992] 1 C.M.L.R. 573 (1992), 31 I.L.M. 247 (1992) [hereinafter TEU], to the European Community, and the founding treaty was similarly renamed the European Community Treaty.) Its political role has also changed, to correct the EU's perceived democratic deficit. Before 1979, members of the EP were selected from the membership of national parliaments and delegated by them. Since 1979, direct elections of EP members by European voters takes place every five years. These changes have increased the Parliament's power, profile, and importance, moving it from a debating chamber to a more vibrant participant in EU affairs.
5. Edmund L. Andrews, 11 Nations Taking Next Pivotal Step Toward the Euro, NEW YORK TIMES, 26 Apr. 1998, at A1.
6. This is not to deny the existence of a persistent set of mapping and re-mapping anxieties. See LARRY WOLFF, INVENTING EASTERN EUROPE: THE MAP OF CIVILIZATION ON THE MIND OF THE ENLIGHTENMENT (1994).
7. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov. 1950, 213 U.N.T.S. 221, Europ. T.S. No. 5 (entered into force 3 Sept. 1953) [hereinafter ECHR].
8. Because of the ever-growing volume of work, the institutional underpinning of the ECHR has been reformed. As of 1 November 1998, the European Court of Human Rights (European Court) will become a single and permanent court that will receive applications directly, rather than through the European Commission. See Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms Restructuring the Control Machinery Established Thereby, opened for signature 11 May 1994, Europ. T.S. No. 155 (1994) (scheduled to enter into force 1 Nov. 1998), reprinted in LEADING CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS, Annex I, at 692 (R.A. Lawson & H.G. Schermers eds., 1997).
9. Because of the ever-growing volume of work, the institutional underpinning of the ECHR has been reformed. As of 1 November 1998, the European Court of Human Rights (European Court) will become a single and permanent court that will receive applications directly, rather than through the European Commission. See Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms Restructuring the Control Machinery Established Thereby, opened for signature 11 May 1994, Europ. T.S. No. 155 (1994) (scheduled to enter into force 1 Nov. 1998), reprinted in LEADING CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS, Annex I, at 692 (R.A. Lawson & H.G. Schermers eds., 1997).
10. The European Court has jurisdiction over cases alleging a violation of one or more articles of the ECHR, supra note 4. These cases can be brought by any person (natural or legal) within any of the Council of Europe states, but the respondent must be one of those states. As discussed in note 7, infra, the Council includes all EU member states individually, as well as 25 other European states that are not EU members. The European Court has no jurisdiction over European Community law. (The law is called this and not European Union law because the law is made by the first pillar of the EU, the European Community; the other pillars of the EU have no such legislative power. See infra note 7.) The European Court also lacks jurisdiction over any of the Union institutions because they are not members of the Council or signatories to the ECHR. See id.
11. The EU and the Council of Europe are separate entities, with quite distinct histories, memberships, and functions. The EU has its origins in the three European Communities (the European Coal and Steel Community or ECSC, the European Economic Community or EEC - and later European Community or EC, and the European Atomic Energy Community or Euratom) established by treaty in the 1950s, initially including only six states (Belgium, the Netherlands, Luxembourg, France, Germany, and Italy) for the purposes of economic and social collaboration. In 1973, Denmark, Ireland, and the United Kingdom acceded to the Community (as the EU was then called); in 1981, Greece joined and in 1986, Spain and Portugal joined; the final accession, bringing the membership of the EU to fifteen, took place in 1995 when Austria, Finland, and Sweden became members. The powers of the Communities and their institutions are laid down by treaty, including the power to enact policy binding on the member states. As previously noted, the Treaty on European Union, also known as the Maastricht Treaty, changed the name of the European Economic Community to the European Community. The term "European Union" refers to the Union established by the TEU to carry the EC to a new and enlarged economic and political dimension. The EU is conceived of as a single institutional structure built on three pillars. The first pillar consists of the three European Communities: the EC, Euratom, and the ECSC. The EC is by far the most important of these and is in many ways the core of the EU; it is the body whose institutions produce law binding on member states and administer the majority of its policies. The second pillar of the EU is the common foreign and security policy, which evolved out of the regular consultations between foreign ministers of the member states under the umbrella of European Political Cooperation. The third pillar, cooperation in the field of justice and home affairs, addresses common concerns in relation to immigration and asylum policy, international crime, drug trafficking, and smuggling. See LEGAL ISSUES OF THE MAASTRICHT TREATY (D. O'Keefe & P. Twomey eds., 1994). The Council of Europe by contrast is a body with no legislative power. Its statute does not envisage the creation of any federation or union or the transfer of any national sovereignty by its affiliated members. However, it has successfully promoted collaboration and the forging of closer links on economic and social matters between the countries of Europe, resulting inter alia in the conclusion of a range of important multilateral conventions. Its main achievement has been the establishment and oversight of the European Convention for the Protection of Human Rights and Fundamental Freedoms, usually referred to as the European Convention on Human Rights (ECHR), which establishes a minimum standard of human rights to be applied by its members. Most significantly, the Council of Europe establishes the most effective system of legal remedy in existence under any human rights treaty by empowering the institutions established under the ECHR - the European Commission for Human Rights and the European Court of Human Rights - to decide on cases alleging violations and brought against any of the signatory states. For a description of these bodies, see K. Boyle, Europe: The Council of Europe, the CSCE and the European Community, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 133 (Hurst Hannum ed., 1992); P.J. GROVES, EUROPEAN COMMUNITY LAW 18-49 (1995). While all 15 member states of the EU are also members of the Council, the latter has a far broader membership, currently numbering forty and including Turkey and all of the states of Central and East Europe. Recognition by the EU of the increasing importance of human rights as a foundation for future development, however, has raised the question of the relationship between the EU and the Council, and in particular whether the EU itself should or could accede to the European Convention on Human Rights and become a member of the Council of Europe. This question was recently considered by the European Court of Justice (ECJ), the Luxembourg-based court of the European Union that decides matters of European Community aw (not to be confused with the Strasbourg-based European Court of Human Rights, the court of the Council of Europe that only decides cases alleging violations of the European Convention on Human Rights). The ECJ concluded that, as European Community law currently stands, the European Community/Union has no competence to accede to the Convention. See Opinion 2/94 of the European Court of Justice [1996] ECR I-1759. For a useful discussion of these issues, see A.G. Toth, The European Union and Human Rights: The Way Forward, 34 COMMON MKT. L. REV. 491, 491-529 (1997).
12. The EU and the Council of Europe are separate entities, with quite distinct histories, memberships, and functions. The EU has its origins in the three European Communities (the European Coal and Steel Community or ECSC, the European Economic Community or EEC - and later European Community or EC, and the European Atomic Energy Community or Euratom) established by treaty in the 1950s, initially including only six states (Belgium, the Netherlands, Luxembourg, France, Germany, and Italy) for the purposes of economic and social collaboration. In 1973, Denmark, Ireland, and the United Kingdom acceded to the Community (as the EU was then called); in 1981, Greece joined and in 1986, Spain and Portugal joined; the final accession, bringing the membership of the EU to fifteen, took place in 1995 when Austria, Finland, and Sweden became members. The powers of the Communities and their institutions are laid down by treaty, including the power to enact policy binding on the member states. As previously noted, the Treaty on European Union, also known as the Maastricht Treaty, changed the name of the European Economic Community to the European Community. The term "European Union" refers to the Union established by the TEU to carry the EC to a new and enlarged economic and political dimension. The EU is conceived of as a single institutional structure built on three pillars. The first pillar consists of the three European Communities: the EC, Euratom, and the ECSC. The EC is by far the most important of these and is in many ways the core of the EU; it is the body whose institutions produce law binding on member states and administer the majority of its policies. The second pillar of the EU is the common foreign and security policy, which evolved out of the regular consultations between foreign ministers of the member states under the umbrella of European Political Cooperation. The third pillar, cooperation in the field of justice and home affairs, addresses common concerns in relation to immigration and asylum policy, international crime, drug trafficking, and smuggling. See LEGAL ISSUES OF THE MAASTRICHT TREATY (D. O'Keefe & P. Twomey eds., 1994). The Council of Europe by contrast is a body with no legislative power. Its statute does not envisage the creation of any federation or union or the transfer of any national sovereignty by its affiliated members. However, it has successfully promoted collaboration and the forging of closer links on economic and social matters between the countries of Europe, resulting inter alia in the conclusion of a range of important multilateral conventions. Its main achievement has been the establishment and oversight of the European Convention for the Protection of Human Rights and Fundamental Freedoms, usually referred to as the European Convention on Human Rights (ECHR), which establishes a minimum standard of human rights to be applied by its members. Most significantly, the Council of Europe establishes the most effective system of legal remedy in existence under any human rights treaty by empowering the institutions established under the ECHR - the European Commission for Human Rights and the European Court of Human Rights - to decide on cases alleging violations and brought against any of the signatory states. For a description of these bodies, see K. Boyle, Europe: The Council of Europe, the CSCE and the European Community, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 133 (Hurst Hannum ed., 1992); P.J. GROVES, EUROPEAN COMMUNITY LAW 18-49 (1995). While all 15 member states of the EU are also members of the Council, the latter has a far broader membership, currently numbering forty and including Turkey and all of the states of Central and East Europe. Recognition by the EU of the increasing importance of human rights as a foundation for future development, however, has raised the question of the relationship between the EU and the Council, and in particular whether the EU itself should or could accede to the European Convention on Human Rights and become a member of the Council of Europe. This question was recently considered by the European Court of Justice (ECJ), the Luxembourg-based court of the European Union that decides matters of European Community aw (not to be confused with the Strasbourg-based European Court of Human Rights, the court of the Council of Europe that only decides cases alleging violations of the European Convention on Human Rights). The ECJ concluded that, as European Community law currently stands, the European Community/Union has no competence to accede to the Convention. See Opinion 2/94 of the European Court of Justice [1996] ECR I-1759. For a useful discussion of these issues, see A.G. Toth, The European Union and Human Rights: The Way Forward, 34 COMMON MKT. L. REV. 491, 491-529 (1997).
13. The EU and the Council of Europe are separate entities, with quite distinct histories, memberships, and functions. The EU has its origins in the three European Communities (the European Coal and Steel Community or ECSC, the European Economic Community or EEC - and later European Community or EC, and the European Atomic Energy Community or Euratom) established by treaty in the 1950s, initially including only six states (Belgium, the Netherlands, Luxembourg, France, Germany, and Italy) for the purposes of economic and social collaboration. In 1973, Denmark, Ireland, and the United Kingdom acceded to the Community (as the EU was then called); in 1981, Greece joined and in 1986, Spain and Portugal joined; the final accession, bringing the membership of the EU to fifteen, took place in 1995 when Austria, Finland, and Sweden became members. The powers of the Communities and their institutions are laid down by treaty, including the power to enact policy binding on the member states. As previously noted, the Treaty on European Union, also known as the Maastricht Treaty, changed the name of the European Economic Community to the European Community. The term "European Union" refers to the Union established by the TEU to carry the EC to a new and enlarged economic and political dimension. The EU is conceived of as a single institutional structure built on three pillars. The first pillar consists of the three European Communities: the EC, Euratom, and the ECSC. The EC is by far the most important of these and is in many ways the core of the EU; it is the body whose institutions produce law binding on member states and administer the majority of its policies. The second pillar of the EU is the common foreign and security policy, which evolved out of the regular consultations between foreign ministers of the member states under the umbrella of European Political Cooperation. The third pillar, cooperation in the field of justice and home affairs, addresses common concerns in relation to immigration and asylum policy, international crime, drug trafficking, and smuggling. See LEGAL ISSUES OF THE MAASTRICHT TREATY (D. O'Keefe & P. Twomey eds., 1994). The Council of Europe by contrast is a body with no legislative power. Its statute does not envisage the creation of any federation or union or the transfer of any national sovereignty by its affiliated members. However, it has successfully promoted collaboration and the forging of closer links on economic and social matters between the countries of Europe, resulting inter alia in the conclusion of a range of important multilateral conventions. Its main achievement has been the establishment and oversight of the European Convention for the Protection of Human Rights and Fundamental Freedoms, usually referred to as the European Convention on Human Rights (ECHR), which establishes a minimum standard of human rights to be applied by its members. Most significantly, the Council of Europe establishes the most effective system of legal remedy in existence under any human rights treaty by empowering the institutions established under the ECHR - the European Commission for Human Rights and the European Court of Human Rights - to decide on cases alleging violations and brought against any of the signatory states. For a description of these bodies, see K. Boyle, Europe: The Council of Europe, the CSCE and the European Community, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 133 (Hurst Hannum ed., 1992); P.J. GROVES, EUROPEAN COMMUNITY LAW 18-49 (1995). While all 15 member states of the EU are also members of the Council, the latter has a far broader membership, currently numbering forty and including Turkey and all of the states of Central and East Europe. Recognition by the EU of the increasing importance of human rights as a foundation for future development, however, has raised the question of the relationship between the EU and the Council, and in particular whether the EU itself should or could accede to the European Convention on Human Rights and become a member of the Council of Europe. This question was recently considered by the European Court of Justice (ECJ), the Luxembourg-based court of the European Union that decides matters of European Community aw (not to be confused with the Strasbourg-based European Court of Human Rights, the court of the Council of Europe that only decides cases alleging violations of the European Convention on Human Rights). The ECJ concluded that, as European Community law currently stands, the European Community/Union has no competence to accede to the Convention. See Opinion 2/94 of the European Court of Justice [1996] ECR I-1759. For a useful discussion of these issues, see A.G. Toth, The European Union and Human Rights: The Way Forward, 34 COMMON MKT. L. REV. 491, 491-529 (1997).
14. The EU and the Council of Europe are separate entities, with quite distinct histories, memberships, and functions. The EU has its origins in the three European Communities (the European Coal and Steel Community or ECSC, the European Economic Community or EEC - and later European Community or EC, and the European Atomic Energy Community or Euratom) established by treaty in the 1950s, initially including only six states (Belgium, the Netherlands, Luxembourg, France, Germany, and Italy) for the purposes of economic and social collaboration. In 1973, Denmark, Ireland, and the United Kingdom acceded to the Community (as the EU was then called); in 1981, Greece joined and in 1986, Spain and Portugal joined; the final accession, bringing the membership of the EU to fifteen, took place in 1995 when Austria, Finland, and Sweden became members. The powers of the Communities and their institutions are laid down by treaty, including the power to enact policy binding on the member states. As previously noted, the Treaty on European Union, also known as the Maastricht Treaty, changed the name of the European Economic Community to the European Community. The term "European Union" refers to the Union established by the TEU to carry the EC to a new and enlarged economic and political dimension. The EU is conceived of as a single institutional structure built on three pillars. The first pillar consists of the three European Communities: the EC, Euratom, and the ECSC. The EC is by far the most important of these and is in many ways the core of the EU; it is the body whose institutions produce law binding on member states and administer the majority of its policies. The second pillar of the EU is the common foreign and security policy, which evolved out of the regular consultations between foreign ministers of the member states under the umbrella of European Political Cooperation. The third pillar, cooperation in the field of justice and home affairs, addresses common concerns in relation to immigration and asylum policy, international crime, drug trafficking, and smuggling. See LEGAL ISSUES OF THE MAASTRICHT TREATY (D. O'Keefe & P. Twomey eds., 1994). The Council of Europe by contrast is a body with no legislative power. Its statute does not envisage the creation of any federation or union or the transfer of any national sovereignty by its affiliated members. However, it has successfully promoted collaboration and the forging of closer links on economic and social matters between the countries of Europe, resulting inter alia in the conclusion of a range of important multilateral conventions. Its main achievement has been the establishment and oversight of the European Convention for the Protection of Human Rights and Fundamental Freedoms, usually referred to as the European Convention on Human Rights (ECHR), which establishes a minimum standard of human rights to be applied by its members. Most significantly, the Council of Europe establishes the most effective system of legal remedy in existence under any human rights treaty by empowering the institutions established under the ECHR - the European Commission for Human Rights and the European Court of Human Rights - to decide on cases alleging violations and brought against any of the signatory states. For a description of these bodies, see K. Boyle, Europe: The Council of Europe, the CSCE and the European Community, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 133 (Hurst Hannum ed., 1992); P.J. GROVES, EUROPEAN COMMUNITY LAW 18-49 (1995). While all 15 member states of the EU are also members of the Council, the latter has a far broader membership, currently numbering forty and including Turkey and all of the states of Central and East Europe. Recognition by the EU of the increasing importance of human rights as a foundation for future development, however, has raised the question of the relationship between the EU and the Council, and in particular whether the EU itself should or could accede to the European Convention on Human Rights and become a member of the Council of Europe. This question was recently considered by the European Court of Justice (ECJ), the Luxembourg-based court of the European Union that decides matters of European Community aw (not to be confused with the Strasbourg-based European Court of Human Rights, the court of the Council of Europe that only decides cases alleging violations of the European Convention on Human Rights). The ECJ concluded that, as European Community law currently stands, the European Community/Union has no competence to accede to the Convention. See Opinion 2/94 of the European Court of Justice [1996] ECR I-1759. For a useful discussion of these issues, see A.G. Toth, The European Union and Human Rights: The Way Forward, 34 COMMON MKT. L. REV. 491, 491-529 (1997).
15. For example, Poland, Hungary, the Czech Republic, Slovenia, Latvia, Lithuania, Estonia, and Slovakia would all like to become EU members. See infra text accompanying note 77.
16. See John Palmer, Russian PM Spells Out EU Hopes, GUARDIAN, 19 July 1997, at 14.
17. See id; see also IVER B. NEUMANN, RUSSIA AS EUROPE'S OTHER (European Union Inst. Working Paper R[obert]S[chumann]C[enter] No. 96/34, 1996) (discussing the relationship between Russia and Europe).
18. See Linda K. Kerber, The Meanings of Citizenship, 1997 Presidential Address of the Organization of American Historians (19 Apr. 1997), in 84 J. AM. HIST. 9 (1997).
19. Third country nationals are aliens who do not have citizenship of an EU member state. Though it is a generic term that applies to all aliens, it is most often used in connection with long-settled, lawful residents who have made their home in an EU state.
20. See JO SHAW, CITIZENSHIP OF THE UNION: TOWARDS POST-NATIONAL MEMBERSHIP? (Harvard Jean Monnet Working Paper No. 6/97, 1997) (on file with author) (available from Joseph H.H. Weiler, Jean Monnet Chair, Harvard Law School, Cambridge, MA 02138, USA) (providing a comprehensive overview of the debates and other components associated with citizenship in Europe).
21. There is an interesting parallel between these European discussions and the current debate in the United States over the extent to which the constitution guarantees rights for aliens. See United States v. Javier Guitterez, 983 F. Supp. 905 (N.D. Cal. 1998);
22. Michael Scaperlanda, Partial Membership: Aliens and the Constitutional Community, 81 IOWA L. REV. 707 (1996).
23. See David O'Keefe, Union Citizenship, in LEGAL ISSUES OF THE MAASTRICHT TREATY, supra note 7, at 87.
24. See Joseph H.H. Weiler, Belonging in Europe-Eros and Civilization, Symposium on Nationalism and Internationalism in the Post Cold War Era, Stockholm (7-10 Sept. 1997) at 9 (on file with author); see also Joseph Weiler, Demos, Telos, Ethos and the Maastricht Decision, in THE QUESTION OF EUROPE 265-294 (Peter Cowan & Perry Anderson eds 1997) (discussing points similar to those presented at the symposium cited above).
25. See Joseph H.H. Weiler, Belonging in Europe-Eros and Civilization, Symposium on Nationalism and Internationalism in the Post Cold War Era, Stockholm (7-10 Sept. 1997) at 9 (on file with author); see also Joseph Weiler, Demos, Telos, Ethos and the Maastricht Decision, in THE QUESTION OF EUROPE 265-294 (Peter Cowan & Perry Anderson eds 1997) (discussing points similar to those presented at the symposium cited above).
26. See Deirdre Curtin & Mark Geurts, Race Discrimination and the European Union Anno 1996: From Rhetoric to Legal Remedy?, 14 NETH. Q. HUM. RTS. 147 (1996). A proposed new article, Article 6a, introduced into the EC Treaty, supra note 1, by the 1997 Draft Treaty of Amsterdam enables the Council of Ministers to "take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation." TREATY OF AMSTERDAM, signed 2 Oct. 1997, art. 2 (7), Europ. T.S. available on 〈http://ue.en.int/Amsterdam/en/amsteroc/en/main.html〉 (visited 14 Apr. 1998) [hereinafter TREATY OF AMSTERDAM]. The Treaty of Amsterdam amends the EC Treaty, supra note 1, and the TEU, supra note 1, by incorporating changes in three main areas-making the Union relevant to its citizens inter alia in the field of human rights, improving the EU's efficiency and democracy in preparation for the inclusion of Eastern European countries and increasing the EU's capacity for external action. This treaty maintains the EU's basic "pillar structure" as developed by the Treaty of Maastricht. See generally supra note 7. The Treaty of Amsterdam is currently being ratified by member states. Germany became the first member state to ratify by unanimous vote of the Bundesrat (representative chamber of Germany's Länder) on 27 March 1998; the only country where ratification problems are anticipated is Denmark. The treaty is intended to be ratified by all member states by the end of 1998. It will enter into force on the first day of the second month after the last member state has ratified.
27. See Deirdre Curtin & Mark Geurts, Race Discrimination and the European Union Anno 1996: From Rhetoric to Legal Remedy?, 14 NETH. Q. HUM. RTS. 147 (1996). A proposed new article, Article 6a, introduced into the EC Treaty, supra note 1, by the 1997 Draft Treaty of Amsterdam enables the Council of Ministers to "take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation." TREATY OF AMSTERDAM, signed 2 Oct. 1997, art. 2 (7), Europ. T.S. available on 〈http://ue.en.int/Amsterdam/en/amsteroc/en/main.html〉 (visited 14 Apr. 1998) [hereinafter TREATY OF AMSTERDAM]. The Treaty of Amsterdam amends the EC Treaty, supra note 1, and the TEU, supra note 1, by incorporating changes in three main areas-making the Union relevant to its citizens inter alia in the field of human rights, improving the EU's efficiency and democracy in preparation for the inclusion of Eastern European countries and increasing the EU's capacity for external action. This treaty maintains the EU's basic "pillar structure" as developed by the Treaty of Maastricht. See generally supra note 7. The Treaty of Amsterdam is currently being ratified by member states. Germany became the first member state to ratify by unanimous vote of the Bundesrat (representative chamber of Germany's Länder) on 27 March 1998; the only country where ratification problems are anticipated is Denmark. The treaty is intended to be ratified by all member states by the end of 1998. It will enter into force on the first day of the second month after the last member state has ratified.
28. See Deirdre Curtin & Mark Geurts, Race Discrimination and the European Union Anno 1996: From Rhetoric to Legal Remedy?, 14 NETH. Q. HUM. RTS. 147 (1996). A proposed new article, Article 6a, introduced into the EC Treaty, supra note 1, by the 1997 Draft Treaty of Amsterdam enables the Council of Ministers to "take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation." TREATY OF AMSTERDAM, signed 2 Oct. 1997, art. 2 (7), Europ. T.S. available on 〈http://ue.en.int/Amsterdam/en/amsteroc/en/main.html〉 (visited 14 Apr. 1998) [hereinafter TREATY OF AMSTERDAM]. The Treaty of Amsterdam amends the EC Treaty, supra note 1, and the TEU, supra note 1, by incorporating changes in three main areas-making the Union relevant to its citizens inter alia in the field of human rights, improving the EU's efficiency and democracy in preparation for the inclusion of Eastern European countries and increasing the EU's capacity for external action. This treaty maintains the EU's basic "pillar structure" as developed by the Treaty of Maastricht. See generally supra note 7. The Treaty of Amsterdam is currently being ratified by member states. Germany became the first member state to ratify by unanimous vote of the Bundesrat (representative chamber of Germany's Länder) on 27 March 1998; the only country where ratification problems are anticipated is Denmark. The treaty is intended to be ratified by all member states by the end of 1998. It will enter into force on the first day of the second month after the last member state has ratified.
29. Samuel P. Huntington is a professor at Harvard University, and Director of the Institute for Strategic Studies. Former Secretary of State Henry Kissinger described Huntington as "one of the West's most eminent political scientists." SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATION AND THE REMAKING OF THE WORLD ORDER (back cover) (1996) [hereinafter CLASH OF CIVILIZATION]. In 1993, Huntington published an article entitled "The Clash of Civilizations?" in the influential journal Foreign Affairs. Samuel P. Huntington, The Clash or Civilizations? FOREIGN AFF., Summer 1993, at 22. This piece generated enormous public discussion; it outlines his thesis that deals with the reconfiguration of global policies along cultural lines. See id. According to the editors of Foreign Affairs, no article since the 1940s has had a similar impact. Huntington later expanded the article into a book by the same title. See HUNTINGTON, supra.
30. Samuel P. Huntington is a professor at Harvard University, and Director of the Institute for Strategic Studies. Former Secretary of State Henry Kissinger described Huntington as "one of the West's most eminent political scientists." SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATION AND THE REMAKING OF THE WORLD ORDER (back cover) (1996) [hereinafter CLASH OF CIVILIZATION]. In 1993, Huntington published an article entitled "The Clash of Civilizations?" in the influential journal Foreign Affairs. Samuel P. Huntington, The Clash or Civilizations? FOREIGN AFF., Summer 1993, at 22. This piece generated enormous public discussion; it outlines his thesis that deals with the reconfiguration of global policies along cultural lines. See id. According to the editors of Foreign Affairs, no article since the 1940s has had a similar impact. Huntington later expanded the article into a book by the same title. See HUNTINGTON, supra.
31. Samuel P. Huntington is a professor at Harvard University, and Director of the Institute for Strategic Studies. Former Secretary of State Henry Kissinger described Huntington as "one of the West's most eminent political scientists." SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATION AND THE REMAKING OF THE WORLD ORDER (back cover) (1996) [hereinafter CLASH OF CIVILIZATION]. In 1993, Huntington published an article entitled "The Clash of Civilizations?" in the influential journal Foreign Affairs. Samuel P. Huntington, The Clash or Civilizations? FOREIGN AFF., Summer 1993, at 22. This piece generated enormous public discussion; it outlines his thesis that deals with the reconfiguration of global policies along cultural lines. See id. According to the editors of Foreign Affairs, no article since the 1940s has had a similar impact. Huntington later expanded the article into a book by the same title. See HUNTINGTON, supra.
32. HUNTINGTON, supra note 17, at 158.
33. Id.
34. See Marlise Simons, Dutch Turn Churches into Shops and Mosques, N.Y. TIMES, 10 Mar. 1997, at A1.
35. Id.
36. Id.
37. See EUROSTAT RAPID REPORTS 1994-1997 (available from Data Shop Eurostat Luxembourg, 2, rue jean Engling, L-1466 Luxembourg).
38. See id.
39. See GILLES KEPEL, ALLAH IN THE WEST: ISLAMIC MOVEMENTS IN AMERICA AND EUROPE 149-50 (1997).
40. As one of the foremost contemporary French political philosophers, Étienne Balibar works on questions of migration, new nationalism, and European regional structures. His books include Reading "Capital" and Race, Nation, Class. LOUIS ALTHUSSER & ÉTIENNE BALIBAR, READING "CAPITAL" (Ben Brewster trans., New Left Books 1979) (1965); ÉTIENNE BALIBAR & IMMANUEL WALLERSTEIN, RACE, NATION, CLASS (Chris Turner trans., 1991).
41. As one of the foremost contemporary French political philosophers, Étienne Balibar works on questions of migration, new nationalism, and European regional structures. His books include Reading "Capital" and Race, Nation, Class. LOUIS ALTHUSSER & ÉTIENNE BALIBAR, READING "CAPITAL" (Ben Brewster trans., New Left Books 1979) (1965); ÉTIENNE BALIBAR & IMMANUEL WALLERSTEIN, RACE, NATION, CLASS (Chris Turner trans., 1991).
42. See Étienne Balibar, Es Gibt Keinen Staat in Europa: Racism and Politics in Europe Today, NEW LEFT REV., Mar.-Apr. 1991, at 5, 7 n.1.
43. Id. at 6-7.
44. The growing importance of these issues is evidenced by the mushrooming of consultative and coordinating bodies within the EU addressing questions of immigration and asylum, and the complimentary increase in writing on the topic. See, e.g., A NEW IMMIGRATION LAW FOR EUROPE (A. Terlouw et al. eds., 1993); Commission of the European Communities, Communications from the Commission to the Council and the European Parliament on Immigration and Asylum Policies COM(94); JOHN HANDOLL, FREE MOVEMENT OF PERSONS IN THE EU 347-439, 441-48 (1995); E. GUILD, THE DEVELOPING IMMIGRATION AND ASYLUM POLICIES OF THE EUROPEAN UNION (1996). For more detailed reports, see the monthly publication, Migration News Sheet, published by the Migration Policy Group, 172-174 rue Joseph II, B-1000 Brussels, Belgium, tel. and fax 32 (2)2303750. See also the bimonthly publication, Statewatch, PO Box 1516, London N16 OEW, UK; email: Statewatch-off@geo2.poptel.org.uk.
45. The growing importance of these issues is evidenced by the mushrooming of consultative and coordinating bodies within the EU addressing questions of immigration and asylum, and the complimentary increase in writing on the topic. See, e.g., A NEW IMMIGRATION LAW FOR EUROPE (A. Terlouw et al. eds., 1993); Commission of the European Communities, Communications from the Commission to the Council and the European Parliament on Immigration and Asylum Policies COM(94); JOHN HANDOLL, FREE MOVEMENT OF PERSONS IN THE EU 347-439, 441-48 (1995); E. GUILD, THE DEVELOPING IMMIGRATION AND ASYLUM POLICIES OF THE EUROPEAN UNION (1996). For more detailed reports, see the monthly publication, Migration News Sheet, published by the Migration Policy Group, 172-174 rue Joseph II, B-1000 Brussels, Belgium, tel. and fax 32 (2)2303750. See also the bimonthly publication, Statewatch, PO Box 1516, London N16 OEW, UK; email: Statewatch-off@geo2.poptel.org.uk.
46. The growing importance of these issues is evidenced by the mushrooming of consultative and coordinating bodies within the EU addressing questions of immigration and asylum, and the complimentary increase in writing on the topic. See, e.g., A NEW IMMIGRATION LAW FOR EUROPE (A. Terlouw et al. eds., 1993); Commission of the European Communities, Communications from the Commission to the Council and the European Parliament on Immigration and Asylum Policies COM(94); JOHN HANDOLL, FREE MOVEMENT OF PERSONS IN THE EU 347-439, 441-48 (1995); E. GUILD, THE DEVELOPING IMMIGRATION AND ASYLUM POLICIES OF THE EUROPEAN UNION (1996). For more detailed reports, see the monthly publication, Migration News Sheet, published by the Migration Policy Group, 172-174 rue Joseph II, B-1000 Brussels, Belgium, tel. and fax 32 (2)2303750. See also the bimonthly publication, Statewatch, PO Box 1516, London N16 OEW, UK; email: Statewatch-off@geo2.poptel.org.uk.
47. Indeed the 1957 Treaty Establishing the European Economic Community contains no explicit reference to human rights. EC TREATY, supra note 1.
48. TEU, supra note 1.
49. Id. art. F(2).
50. See Case C-260/89, Elliniki Radiophonia Tileorassi EA (ERT) v. Demotiki Étairia Pliroforissis (DEP), 4 C.M.L.R. 540, 708 (1994).
51. TREATY OF AMSTERDAM, supra note 16, arts. 1, 7(a).
52. A leading German political philosopher, Jürgen Habermas played a prominent part in discussion about civil society and the importance of establishing citizenship norms free of ethnic particularism.
53. Jürgen Habermas, The European Nation State: Its Achievements and Its Limitations: On the Past and Future of Sovereignty and Citizenship, 9 RATIO JURIS 125 (1996).
54. Id. at 133-37.
55. See id. at 125-37.
56. See id. at 133-37.
57. Joseph Weiler is a professor at Harvard Law School and co-director of the Academy of European Law, European University Institute, Florence. One of the leading experts on European law, Weiler for many years has advocated strongly in favor of increasing legal rights for third country nationals in the EU.
58. Weiler, Belonging in Europe - Eros and Civilization, supra note 15, at 22.
59. See RAINER BAUBOCK, CITIZENSHIP AND NATIONAL IDENTITIES IN THE EUROPEAN UNION 19-23 (Harvard Jean Monnet Working Paper No. 4/97, 1997) (discussing different approaches to European identity).
60. See Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III) U.N. GAOR 3d Sess., (Resolutions, part 1), at 71, U.N. Doc. A/810 (1948), art. 2, reprinted in 43 AM. J. INT'L L. SUPP. 127 (1949) [hereinafter UDHR]; ECHR, supra note 4, art. 14; TEU, supra note 1, art. 6 (amended by Article 2(7) of the TREATY OF AMSTERDAM, supra note 16).
61. Yasemin Nuhoglu Soysal, Changing Citizenship in Europe: Remarks on Postnational Membership and the National State, in CITIZENSHIP, NATIONALITY AND MIGRATION IN EUROPE 17, 21 (David Cesarani & Mary Fulbrook eds., 1996). Gardner makes a similar point in distinguishing between "national citizenship rights," which determine who has a right to participate in the state, and "new citizenship rights," which endow a individuals with personal rights derived from the postwar human rights treaties. While the former are primarily about collective relationships to the state, the new citizenship rights determine a new relationship between individual and state. JOHN PIERS GARDNER, WHAT LAWYERS MEAN BY CITIZENSHIP: REPORT OF THE COMMISSION ON CITIZENSHIP, H.M.S.O., app. D, at 65-66 (1990) (Eng.).
62. Yasemin Nuhoglu Soysal, Changing Citizenship in Europe: Remarks on Postnational Membership and the National State, in CITIZENSHIP, NATIONALITY AND MIGRATION IN EUROPE 17, 21 (David Cesarani & Mary Fulbrook eds., 1996). Gardner makes a similar point in distinguishing between "national citizenship rights," which determine who has a right to participate in the state, and "new citizenship rights," which endow a individuals with personal rights derived from the postwar human rights treaties. While the former are primarily about collective relationships to the state, the new citizenship rights determine a new relationship between individual and state. JOHN PIERS GARDNER, WHAT LAWYERS MEAN BY CITIZENSHIP: REPORT OF THE COMMISSION ON CITIZENSHIP, H.M.S.O., app. D, at 65-66 (1990) (Eng.).
63. Yasemin Soysal is assistant professor of Sociology at Harvard University and an affiliate of Harvard's Center for European Studies.
64. Soysal, supra note 44, at 21.
65. Id. at 20.
66. However, several member states grant local voting rights to third country nationals indicating that such rights are not considered political or constitutive rights to be reserved for nationals, but social rights that facilitate integration into the local life of the host community. Denmark and the Netherlands give local voting rights to third country nationals who satisfy minimum residence requirements; Ireland makes no distinction between nationals and third country nationals; the United Kingdom grants local voting rights to citizens of states with special historical ties to the United Kingdom (e.g., Ireland and the Commonwealth countries); the Portuguese and Spanish constitutions grant local rights to third country nationals subject to reciprocity. See HANDOLL, supra note 29, at 295.
67. Apart from non-nationals, children comprise another group of "non-citizens" within national communities. See PAUL CLOSE, CITIZENSHIP, EUROPE AND CHANGE 69 (1995) (providing an interesting argument about the parallels between children and non-citizens).
68. Soysal, supra note 44, at 25.
69. Id. at 24-28.
70. See Frances Webber, Governing Racism: The Corruption of the Executive, 39 RACE & CLASS 19 (1997). See also BAUBOCK, supra note 42, at 6 (questioning Soysal's emphasis on the wish to comply with human rights norms as the main driving force behind the extension of rights to aliens and arguing that such extensions of rights depend on contingent factors related to societal membership and citizenship of origin, and are subject to change and reversal).
71. See Racism/Discrimination, in MIGRATION NEWSSHEET (monthly section); Racism and Fascism, in STATEWATCH (bi-monthly section). For contact addresses, see supra note 29.
72. See Racism/Discrimination, in MIGRATION NEWSSHEET (monthly section); Racism and Fascism, in STATEWATCH (bi-monthly section). For contact addresses, see supra note 29.
73. See Liz Fekete, Europe: The Wages of Racism, 39 RACE & CLASS 1 (1997).
74. See Joint Declaration Against Racism and Xenophobia Signed by the European Parliament, the Commission and the Council, 1986 O.J. (C 158) 1; European Commission Communication on Racism, Xenophobia and Anti-Semitism and Proposals for a Council Decision Designating 1997 as European Year Against Racism, COM(95)653 final at 6.
75. See LIZ FEKETE & FRANCES WEBBER, INSIDE RACIST EUROPE (1994); ANN DUMMETT & ANDREW NICOL, SUBJECT, CITIZENS, ALIENS AND OTHERS: NATIONALITY AND IMMIGRATION LAW (1990); STRANGERS AND CITIZENS, A POSITIVE APPROACH TO MIGRANTS AND REFUGEES (Sarah Spencer ed., 1994).
76. See LIZ FEKETE & FRANCES WEBBER, INSIDE RACIST EUROPE (1994); ANN DUMMETT & ANDREW NICOL, SUBJECT, CITIZENS, ALIENS AND OTHERS: NATIONALITY AND IMMIGRATION LAW (1990); STRANGERS AND CITIZENS, A POSITIVE APPROACH TO MIGRANTS AND REFUGEES (Sarah Spencer ed., 1994).
77. See LIZ FEKETE & FRANCES WEBBER, INSIDE RACIST EUROPE (1994); ANN DUMMETT & ANDREW NICOL, SUBJECT, CITIZENS, ALIENS AND OTHERS: NATIONALITY AND IMMIGRATION LAW (1990); STRANGERS AND CITIZENS, A POSITIVE APPROACH TO MIGRANTS AND REFUGEES (Sarah Spencer ed., 1994).
78. Title VIII of a Draft Convention on Rules for the Admission of Third Country Nationals to the Member States of the EU, proposed by the European Commission, would partly remedy this longstanding defect. See Proposal for a Council Act Establishing the Convention on Rules for the Admission of Third-Country Nationals to the Member States, 30 July 1997, COM(97)387 final at tit. 7, 1997 O.J. (C 337) 9 [hereinafter Draft Convention on Rules]. Article 32 of the Draft Convention on Rules establishes a basic catalogue of rights for third country nationals with long-term resident status (defined as legal residence for at least five years and authorization permitting residence for at least ten years from first admission). Long-term residents would be entitled to enter a member state once they obtained a work contract. See Draft Convention on Rules, supra, art. 32.
79. Article 8 of the TEU states: "Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union." TEU, supra note 1, art. 8(1). Citizens "have the right to move and reside freely within the [EU] territory" (Id. art. 8a(1)); "to vote and . . . stand as . . . candidate[s] at municipal elections and elections to the European Parliament" (Id. art. 8b(1)-(2)); to receive diplomatic protection by any EU consular authority (Id. art. 8c); and the right "to petition the European Parliament" or make a complaint to the European Ombudsman (Id. art. 8d). Although EU citizenship is still in its infancy, there has already been considerable criticism of its narrow basis, in particular the failure to achieve a direct political link between the Union and individual citizens or to articulate a program of social policies constitutive of citizenship. See SIOFRA O'LEARY, THE EVOLVING CONCEPT OF COMMUNITY CITIZENSHIP: FROM THE FREE MOVEMENT OF PERSONS TO COMMUNITY CITIZENSHIP 308-10 (1996); Curtin & Geurts, supra note 14, at 165; Hans Ulrich Jessurun D'Oliveira, Expanding External and Shrinking Internal Borders: Europe's Defense Mechanisms in the Areas of Free Movement, Immigration and Asylum, in LEGAL ISSUES OF THE MAASTRICHT TREATY, supra note 12, at 261-78; BAUBOCK, supra note 40, at 10-23. Joseph Weiler goes further and asks whether, given the absence of meaningful entitlements and duties derived from EU citizenship, it is simply a marketing exercise, a product to make the European project more attractive to dissatisfied consumers. See Weiler, Belonging in Europe - Eros and Civilization, supra note 14. at 9. Baubock and Shaw also provide very useful discussions of EU citizenship. See BAUBOCK, supra note 42; SHAW, supra note 13.
80. Article 8 of the TEU states: "Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union." TEU, supra note 1, art. 8(1). Citizens "have the right to move and reside freely within the [EU] territory" (Id. art. 8a(1)); "to vote and . . . stand as . . . candidate[s] at municipal elections and elections to the European Parliament" (Id. art. 8b(1)-(2)); to receive diplomatic protection by any EU consular authority (Id. art. 8c); and the right "to petition the European Parliament" or make a complaint to the European Ombudsman (Id. art. 8d). Although EU citizenship is still in its infancy, there has already been considerable criticism of its narrow basis, in particular the failure to achieve a direct political link between the Union and individual citizens or to articulate a program of social policies constitutive of citizenship. See SIOFRA O'LEARY, THE EVOLVING CONCEPT OF COMMUNITY CITIZENSHIP: FROM THE FREE MOVEMENT OF PERSONS TO COMMUNITY CITIZENSHIP 308-10 (1996); Curtin & Geurts, supra note 14, at 165; Hans Ulrich Jessurun D'Oliveira, Expanding External and Shrinking Internal Borders: Europe's Defense Mechanisms in the Areas of Free Movement, Immigration and Asylum, in LEGAL ISSUES OF THE MAASTRICHT TREATY, supra note 12, at 261-78; BAUBOCK, supra note 40, at 10-23. Joseph Weiler goes further and asks whether, given the absence of meaningful entitlements and duties derived from EU citizenship, it is simply a marketing exercise, a product to make the European project more attractive to dissatisfied consumers. See Weiler, Belonging in Europe - Eros and Civilization, supra note 14. at 9. Baubock and Shaw also provide very useful discussions of EU citizenship. See BAUBOCK, supra note 42; SHAW, supra note 13.
81. Article 8 of the TEU states: "Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union." TEU, supra note 1, art. 8(1). Citizens "have the right to move and reside freely within the [EU] territory" (Id. art. 8a(1)); "to vote and . . . stand as . . . candidate[s] at municipal elections and elections to the European Parliament" (Id. art. 8b(1)-(2)); to receive diplomatic protection by any EU consular authority (Id. art. 8c); and the right "to petition the European Parliament" or make a complaint to the European Ombudsman (Id. art. 8d). Although EU citizenship is still in its infancy, there has already been considerable criticism of its narrow basis, in particular the failure to achieve a direct political link between the Union and individual citizens or to articulate a program of social policies constitutive of citizenship. See SIOFRA O'LEARY, THE EVOLVING CONCEPT OF COMMUNITY CITIZENSHIP: FROM THE FREE MOVEMENT OF PERSONS TO COMMUNITY CITIZENSHIP 308-10 (1996); Curtin & Geurts, supra note 14, at 165; Hans Ulrich Jessurun D'Oliveira, Expanding External and Shrinking Internal Borders: Europe's Defense Mechanisms in the Areas of Free Movement, Immigration and Asylum, in LEGAL ISSUES OF THE MAASTRICHT TREATY, supra note 12, at 261-78; BAUBOCK, supra note 40, at 10-23. Joseph Weiler goes further and asks whether, given the absence of meaningful entitlements and duties derived from EU citizenship, it is simply a marketing exercise, a product to make the European project more attractive to dissatisfied consumers. See Weiler, Belonging in Europe - Eros and Civilization, supra note 14. at 9. Baubock and Shaw also provide very useful discussions of EU citizenship. See BAUBOCK, supra note 42; SHAW, supra note 13.
82. Article 8 of the TEU states: "Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union." TEU, supra note 1, art. 8(1). Citizens "have the right to move and reside freely within the [EU] territory" (Id. art. 8a(1)); "to vote and . . . stand as . . . candidate[s] at municipal elections and elections to the European Parliament" (Id. art. 8b(1)-(2)); to receive diplomatic protection by any EU consular authority (Id. art. 8c); and the right "to petition the European Parliament" or make a complaint to the European Ombudsman (Id. art. 8d). Although EU citizenship is still in its infancy, there has already been considerable criticism of its narrow basis, in particular the failure to achieve a direct political link between the Union and individual citizens or to articulate a program of social policies constitutive of citizenship. See SIOFRA O'LEARY, THE EVOLVING CONCEPT OF COMMUNITY CITIZENSHIP: FROM THE FREE MOVEMENT OF PERSONS TO COMMUNITY CITIZENSHIP 308-10 (1996); Curtin & Geurts, supra note 14, at 165; Hans Ulrich Jessurun D'Oliveira, Expanding External and Shrinking Internal Borders: Europe's Defense Mechanisms in the Areas of Free Movement, Immigration and Asylum, in LEGAL ISSUES OF THE MAASTRICHT TREATY, supra note 12, at 261-78; BAUBOCK, supra note 40, at 10-23. Joseph Weiler goes further and asks whether, given the absence of meaningful entitlements and duties derived from EU citizenship, it is simply a marketing exercise, a product to make the European project more attractive to dissatisfied consumers. See Weiler, Belonging in Europe - Eros and Civilization, supra note 14. at 9. Baubock and Shaw also provide very useful discussions of EU citizenship. See BAUBOCK, supra note 42; SHAW, supra note 13.
83. TEU, supra note 1, art. 8(1).
84. International law conclusively established as a component of sovereignty the capacity of states to define their nationals. See Nottebohm Case (Liecht. v. Guat.) (Second Phase) 1955 I.C.J. 4 (6 Apr.).
85. The European Court of Justice (ECJ) insists that the term "worker" not be defined restrictively by reference to the national laws of member states, but rather have a broad and inclusive meaning to facilitate freedom of movement of workers. Thus, part-time workers and other workers whose income is supplemented from sources other than their employment
86. The ECJ also developed a Union-wide definition of spouse that transcends national jurisprudence. The ECJ held that the relationship of "spouse" is not lost when the couple separates. See Case 267/83, Diatta v. Land Berlin, 1985-2 E.C.R. 567, 2 C.M.L.R. 164 (1986). The ECJ also held that the term "spouse" is limited to partners in a marital relationship, irrespective of member state practice. See Case 59/85, The Netherlands v. Reed, 1986-4 E.C.R. 1283 (1986), 2 C.M.L.R. 448 (1987).
87. See Bürgerliches Gesetzbuch [BCB] ¶ 4(1) (F.R.G.) (Reichs- und Staatsangehörigkeitsgesetz [1913 German Reich Citizenship Law]); Birgit Brandt, The Politics of Exclusion: The German Concept of Citizenship, in 37 MIGRATION 1 (1996); Mary Fulbrook, Germany for the Germans? Citizenship and Nationality in a Divided Nation, in CITIZENSHIP, NATIONALITY AND MIGRATION IN EUROPE, supra note 44, at 88.
88. See Bürgerliches Gesetzbuch [BCB] ¶ 4(1) (F.R.G.) (Reichs- und Staatsangehörigkeitsgesetz [1913 German Reich Citizenship Law]); Birgit Brandt, The Politics of Exclusion: The German Concept of Citizenship, in 37 MIGRATION 1 (1996); Mary Fulbrook, Germany for the Germans? Citizenship and Nationality in a Divided Nation, in CITIZENSHIP, NATIONALITY AND MIGRATION IN EUROPE, supra note 44, at 88.
89. Germany has in recent years modified its ethnically based citizenship law by simplifying the naturalization procedure. Even Chancellor Kohl had to agree that basing citizenship exclusively on lineage was "outmoded." See Soysal, supra note 43, at 27. However, within the German ruling coalition, opposition still persists to citizenship at birth for children born to foreign parents in Germany, as well as to dual nationality. See Germany: Coalition Partners Clash on Citizenship, MIGRATION NEWSSHEET, Nov. 1997, at 15.
90. David Cesarani & Mary Fulbrook, Introduction, in CITIZENSHIP, NATIONALITY AND MIGRATION IN EUROPE, supra note 44, at 1, 7.
91. See Patrick Weil, Nationalities and Citizenships: The Lessons of the French Experience for Germany and Europe, in CITIZENSHIP, NATIONALITY AND MIGRATION IN EUROPE, supra note 44, at 74, 75-81.
92. Article 8 of the TEU also accords EU citizens consular protection by a member state other than their own (if the latter is not represented) the right to petition the EU Parliament, and the right to apply to the European Ombudsman to file a complaint. TEU, supra note 1, arts. 8c, 8d. Third country nationals only enjoy such rights (e.g., the right to vote in municipal elections in some cases) if domestic member state law so provides.
93. See BAUBOCK, supra note 42, at 10-15 (providing a careful analysis of different options for grounding citizenship rights in the EU).
94. The fact that some nationals from non-Union states, those that are part of the European Economic Area (EEA), do enjoy some of the rights of EU citizens, most importantly the right to free movement, emphasizes the discriminatory nature of the limitation on rights to Union citizenship. See O'LEARY, supra note 58, at 306.
95. An outer circle is constituted by the membership of the Council of Europe, a body that predates the EU (the Council of Europe was created in May 1949, and the first EC treaties were signed in the 1950s). See generally supra note 7. Membership in the Council of Europe presupposes government by parliamentary democracy and most importantly binds a state to implement the ECHR. Member states of the Council of Europe (currently numbering forty, nearly three times the number of EU member states) are thus subject to supranational pressure from the Council of Europe and the European Court in respect of domestic policies or legislative developments that conflict with the ECHR, and they participate in the evolution of Council of Europe policy. However, this is a much more limited form of belonging to or participating in Europe than that associated with EU membership, and, critically, does not encompass participation in the internal market or inclusion within the EU's legal system. Turkey's longstanding membership of the Council of Europe, and the more recent accession of most of the Eastern bloc countries, has not prejudged decision making about these states' accession to the EU. See Statute of the Council of Europe, ch. II, arts. 2-9, 87 U.N.T.S 193, Europ. T.S. No. 1.
96. Article O of the TEU was formerly Article 237 of the EEC Treaty. EC TREATY, supra note 1, art. 237.
97. TEU, supra note 1, art. O. The Draft Treaty of Amsterdam amends Article O, to read: "Any European State which respects the principles set out in Article F(1) may apply to become a Member of the Union." TREATY OF AMSTERDAM, supra note 16, art. 1(15). The Treaty of Amsterdam emphasizes the importance of adherence to the fundamental principles on which the Union is based. See, e.g., TREATY OF AMSTERDAM, supra note 16, arts. 1(1), 1(5), 1(8), 1(9), 1(15).
98. See DERRICK WYATT & ALAN DASHWOOD, EUROPEAN COMMUNITY LAW 656-57 (3d ed. 1993).
99. In 1977, the EU Parliament, the Council of Ministers, and the European Commission issued a Joint Declaration on Human Rights, declaring themselves bound in their actions by the general principles contained in the constitutions of the member states and in the ECHR. Joint Declaration by the European Parliament, the Council and the Commission, done at Luxembourg, 5 Apr. 1977, 1977 O.J. (c 103) 1, 27, reprinted in ANDREW CLAPHAM, HUMAN RIGHTS AND THE EUROPEAN COMMUNITY: A CRITICAL OVERVIEW 154 (1991). Reflecting the growing concern with human rights voiced by Union institutions, and particularly the ECJ and the European Commission, the member states referred in the preamble of the second foundational treaty of the EU, the Single European Act of 1986, to "the fundamental rights recognized in the constitutions and laws of the Members States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice." SINGLE EUROPEAN ACT, 1 July 1987, O.J. (L 169) 1 (1987), [1987] 2 C.M.L.R. 741, corrected in O.J. (304) 46 (1987), reprinted in 25 I.L.M. 503, 506 (1986) [hereinafter SEA]. For an account of the evolution of EU concerns with questions of human rights, see CLAPHAM, supra; Nanette A. Neuwahl, The Treaty on European Union: A Step Forward in the Protection of Human Rights?, in THE EUROPEAN UNION AND HUMAN RIGHTS 1- 22 (Nanette A. Neuwahl & Allan Rosas eds., 1995). Article 1(15) of the Treaty of Amsterdam amends Article O of the TEU, providing that only states that respect human rights may apply for EU membership. TREATY OF AMSTERDAM, supra note 16, art. 1(15). Article 1(9) inserts a new provision into Article F.1 of the TEU, giving the EU Council of Ministers the power to "determine the existence of a serious and persistent breach of [human rights] by a Member State . . . and to suspend Treaty rights." TREATY OF AMSTERDAM, C. Protocols Annexed to the Treaty Establishing the European Community; TREATY OF AMSTERDAM, Protocol on Asylum for Nationals of Member States of the European Union, 10 Nov. 1997, O.J. (C 340) 103-104. These new provisions certainly signal a genuine and serious commitment to the enforcement of human rights. What, if any, practical results will ensue is unclear. A worrying development, at variance with the rights rhetoric is the decision by member states to prevent asylum nationals of one state from seeking asylum in another member state. See TREATY OF AMSTERDAM Protocol on Asylum for Nationals of the Member States of the European Union, supra. 75. However there is considerable political flexibility in accession decisions. There has been widespread criticism of the Czech Republic's citizenship law that resulted in the exclusion of about ten percent of the Romany population from Czech citizenship, referred to as possibly "the largest denaturalization in Europe since the World War II period " Jane Perlez, Czechs Use Law to Exclude Gypsies from Gaining Citizenship and Voting, N.Y. TIMES, 27 Dec. 1995, at A8. Yet the Czech Republic will certainly be in the next accession round to the EU.
100. In 1977, the EU Parliament, the Council of Ministers, and the European Commission issued a Joint Declaration on Human Rights, declaring themselves bound in their actions by the general principles contained in the constitutions of the member states and in the ECHR. Joint Declaration by the European Parliament, the Council and the Commission, done at Luxembourg, 5 Apr. 1977, 1977 O.J. (c 103) 1, 27, reprinted in ANDREW CLAPHAM, HUMAN RIGHTS AND THE EUROPEAN COMMUNITY: A CRITICAL OVERVIEW 154 (1991). Reflecting the growing concern with human rights voiced by Union institutions, and particularly the ECJ and the European Commission, the member states referred in the preamble of the second foundational treaty of the EU, the Single European Act of 1986, to "the fundamental rights recognized in the constitutions and laws of the Members States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice." SINGLE EUROPEAN ACT, 1 July 1987, O.J. (L 169) 1 (1987), [1987] 2 C.M.L.R. 741, corrected in O.J. (304) 46 (1987), reprinted in 25 I.L.M. 503, 506 (1986) [hereinafter SEA]. For an account of the evolution of EU concerns with questions of human rights, see CLAPHAM, supra; Nanette A. Neuwahl, The Treaty on European Union: A Step Forward in the Protection of Human Rights?, in THE EUROPEAN UNION AND HUMAN RIGHTS 1-22 (Nanette A. Neuwahl & Allan Rosas eds., 1995). Article 1(15) of the Treaty of Amsterdam amends Article O of the TEU, providing that only states that respect human rights may apply for EU membership. TREATY OF AMSTERDAM, supra note 16, art. 1(15). Article 1(9) inserts a new provision into Article F.1 of the TEU, giving the EU Council of Ministers the power to "determine the existence of a serious and persistent breach of [human rights] by a Member State . . . and to suspend Treaty rights." TREATY OF AMSTERDAM, C. Protocols Annexed to the Treaty Establishing the European Community; TREATY OF AMSTERDAM, Protocol on Asylum for Nationals of Member States of the European Union, 10 Nov. 1997, O.J. (C 340) 103-104. These new provisions certainly signal a genuine and serious commitment to the enforcement of human rights. What, if any, practical results will ensue is unclear. A worrying development, at variance with the rights rhetoric is the decision by member states to prevent asylum nationals of one state from seeking asylum in another member state. See TREATY OF AMSTERDAM Protocol on Asylum for Nationals of the Member States of the European Union, supra. 75. However there is considerable political flexibility in accession decisions. There has been widespread criticism of the Czech Republic's citizenship law that resulted in the exclusion of about ten percent of the Romany population from Czech citizenship, referred to as possibly "the largest denaturalization in Europe since the World War II period " Jane Perlez, Czechs Use Law to Exclude Gypsies from Gaining Citizenship and Voting, N.Y. TIMES, 27 Dec. 1995, at A8. Yet the Czech Republic will certainly be in the next accession round to the EU.
101. In 1977, the EU Parliament, the Council of Ministers, and the European Commission issued a Joint Declaration on Human Rights, declaring themselves bound in their actions by the general principles contained in the constitutions of the member states and in the ECHR. Joint Declaration by the European Parliament, the Council and the Commission, done at Luxembourg, 5 Apr. 1977, 1977 O.J. (c 103) 1, 27, reprinted in ANDREW CLAPHAM, HUMAN RIGHTS AND THE EUROPEAN COMMUNITY: A CRITICAL OVERVIEW 154 (1991). Reflecting the growing concern with human rights voiced by Union institutions, and particularly the ECJ and the European Commission, the member states referred in the preamble of the second foundational treaty of the EU, the Single European Act of 1986, to "the fundamental rights recognized in the constitutions and laws of the Members States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice." SINGLE EUROPEAN ACT, 1 July 1987, O.J. (L 169) 1 (1987), [1987] 2 C.M.L.R. 741, corrected in O.J. (304) 46 (1987), reprinted in 25 I.L.M. 503, 506 (1986) [hereinafter SEA]. For an account of the evolution of EU concerns with questions of human rights, see CLAPHAM, supra; Nanette A. Neuwahl, The Treaty on European Union: A Step Forward in the Protection of Human Rights?, in THE EUROPEAN UNION AND HUMAN RIGHTS 1- 22 (Nanette A. Neuwahl & Allan Rosas eds., 1995). Article 1(15) of the Treaty of Amsterdam amends Article O of the TEU, providing that only states that respect human rights may apply for EU membership. TREATY OF AMSTERDAM, supra note 16, art. 1(15). Article 1(9) inserts a new provision into Article F.1 of the TEU, giving the EU Council of Ministers the power to "determine the existence of a serious and persistent breach of [human rights] by a Member State . . . and to suspend Treaty rights." TREATY OF AMSTERDAM, C. Protocols Annexed to the Treaty Establishing the European Community; TREATY OF AMSTERDAM, Protocol on Asylum for Nationals of Member States of the European Union, 10 Nov. 1997, O.J. (C 340) 103-104. These new provisions certainly signal a genuine and serious commitment to the enforcement of human rights. What, if any, practical results will ensue is unclear. A worrying development, at variance with the rights rhetoric is the decision by member states to prevent asylum nationals of one state from seeking asylum in another member state. See TREATY OF AMSTERDAM Protocol on Asylum for Nationals of the Member States of the European Union, supra. 75. However there is considerable political flexibility in accession decisions. There has been widespread criticism of the Czech Republic's citizenship law that resulted in the exclusion of about ten percent of the Romany population from Czech citizenship, referred to as possibly "the largest denaturalization in Europe since the World War II period " Jane Perlez, Czechs Use Law to Exclude Gypsies from Gaining Citizenship and Voting, N.Y. TIMES, 27 Dec. 1995, at A8. Yet the Czech Republic will certainly be in the next accession round to the EU.
102. The European Commission, based in Brussels, is the principal executive institution of the European Community. The European Commission is a collegiate body made up of Commissioners, at least one from each of the member states, who are appointed by common accord of the governments of the member states. One of the Commissioners is designated President. The services of the Commission are organized into directorate generals (DGs), each of which forms part of the portfolio of a Commissioner. The Commission can thus be thought of as the EU's civil service. However, the European Commission Treaties also confer legislative and judicial functions on the Commission. Thus, most European Community legislation, implementing in detail EU policy is initiated by the Commission. The Commission also has executive powers, for example, in relation to competition policy and administration of the European Social Fund. Furthermore, as the guardian of European Community law, the Commission has the responsibility to oversee the implementation of the law, and to initiate infringement proceedings against member states that do not comply with their treaty obligations. The European Commission should not be confused with the European Commission of Human Rights, based in Strasbourg. The European Commission of Human Rights is a judicial court of first instance that has considered cases brought under the European Convention of Human Rights. The European Commission of Human Rights will cease to hear new cases after 1 November 1998.
103. A relevant factor again is discriminatory citizenship laws that distinguish Latvia and Lithuania from Estonia. See CLOSE, supra note 49, at 77.
104. The SEA and the TEU recognize the importance of protecting "national identity" (TEU, supra note 1, art. F(1) as well as promoting the "flowering of the cultures of the Member States while respecting their national and regional diversity" and bringing "the common cultural heritage to the fore" (SEA, supra note 74, art. 128). Moreover, Article 1(8)(b) of the Treaty of Amsterdam amends Article F of the TEU by introducing a new paragraph 3, which states that "[t]he Union shall respect the national identities of its Member States." TREATY OF AMSTERDAM, supra note 16, art. 1(8)(b). Though all of these provisions emphasize the importance of recognizing and preserving European cultural diversity, they suggest a historicist, homogeneous notion of culture where only one national identity exists for each member state.
105. TEU, supra note 1, art. 7(a). This provision has yet to be fully implemented. The Treaty of Amsterdam sets out a five-year time limit from the entry into force of the Treaty by which intra-Union border controls must be abolished. See TREATY OF AMSTERDAM, supra note 16, art. 2(15) (inserting into EC Treaty a new Article 73i(a), which promotes free movement, and Article 73j(1), which abolishes frontier checks).
106. But see DENNIS MARTIN & ELSPETH GUILD, FREE MOVEMENT OF PERSONS IN THE EUROPEAN UNION 105 (1996) (noting that third country nationals may benefit from the free movement provisions as family members of EU nationals or as nationals of states that have concluded association agreements with the EU).
107. There are proposals to improve the position of third country nationals, both as regards access to free movement for employment within the EU and with respect to the abolition of frontier checks. See TREATY OF AMSTERDAM, supra note 16, art. B.
108. The regulations governing free movement clearly limit the scope to the member state nationals. See Regulation 1612/68 of 15 Oct. 1968 on Freedom of Movement for Workers Within the Community, art. 1(1), 1968 O.J. SPEC. ED. 475 ("Any national of a Member State, shall . . . have the right to take up an activity as an employed person . . . within the territory of another Member State . . . ."); Council Directive 68/360 of 15 Oct. 1968 on the Abolition of Restrictions on Movement and Residence within the Community for Workers of Member States and Their Families, art. 1, 1968 O.J. SPEC. ED. 1968-11 485 ("Member States shall . . . abolish restrictions on the movement and residence of nationals of the said States and of members of their families . . . .") There has been consistent pressure to assimilate the position of Europe's long-term resident third country nationals to that of Union nationals in respect of the treaty rights to free movement. Some progress has been made in that the Draft Treaty of Amsterdam does include a power for the Union to adopt measures defining third country nationals rights of residence and conditions of employment in other member states. TREATY OF AMSTERDAM, supra note 16, arts. 2(15) (inserting into the EC Treaty a new Article 73i(b), which includes a power for the EU to adopt measures to safeguard rights of third country nationals), 73k(3) (providing for the adoption of immigration policies in respect of long-term residence). However, these provisions are not clear and fall far short of equality with Union nationals See IMMIGRATION LAW PRACTITIONERS' ASSOCIATION, EUROPEAN UPDATE: JULY 1997: THE DRAFT TREATY OF AMSTERDAM 12 (1997) (available from ILPA, Lindsey House, 40/ 42 Charterhouse Street, London, EC1m 6JH; e-mail: ilpa@mcr1.poptel.org.uk).
109. See EUROSTAT RAPID REPORTS, supra note 23.
110. See Jan Niessen, Introduction, ELSPETH GUILD & JAN NIESSEN, THE DEVEEOPING IMMIGRATION AND ASYLUM POLICIES OF THE EUROPEAN UNION 3 (1996).
111. See TREATY OF AMSTERDAM, supra note 16, art. 2(15) (inserting into the EC Treaty a new Article 73j(2)(b), which provides for rules on visas for foreign nationals, including lists of visa countries).
112. Agreement Concerning the Gradual Abolition of Controls at their Common Borders, 14 June 1985, Benelux Economic Union-F.R.G.-Fr., 30 I.L.M. 73 (1991) [hereinafter 1985 Schengen Agreement].
113. Convention on the Application of the Schengen Agreement of 14 June 1985 to the Gradual Suppression of Controls at Common Frontiers, 19 June 1990, Benelux Economic Union-F.R.G.-Fr., 30 I.L.M. 84 (1991) [hereinafter 1990 Schengen Convention].
114. Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities, 14 June 1990, 30 I.L.M 425 (1990) (entered into force 1 Sept. 1997) [hereinafter Dublin Convention]. Provisions of both the Schengen Agreements and the Dublin Convention will be "communitarized," i.e., adopted into community law. B. Protocols Annexed to the Treaty on European Union and to the Treaty Establishing the European Community: Protocol Integrating the Schengen Acquis into the Framework of the European Union, 10 Nov 1997 O.J. (C 340) 93-96 [hereinafter Schengen Acquis Protocol].
115. See Schengen Acquis Protocol, supra note 88; see also Deirdre Curtin, The Schengen Protocol: Attractive Model or Poisoned Chalice?, STATEWATCH, May-June 1997, at 18-19 (analyzing the implications of this integration).
116. See Schengen Acquis Protocol, supra note 88; see also Deirdre Curtin, The Schengen Protocol: Attractive Model or Poisoned Chalice?, STATEWATCH, May-June 1997, at 18-19 (analyzing the implications of this integration).
117. See Council Resolution of 20 June 1994 on Limitations on Admission of Third-Country Nationals to the Member States for Employment, 1996 O.J. (C 274) 3.
118. See Council Resolution of 30 November 1994 on the Admission of Third-Country Nationals to the Territory of the Member States of the European Union for Study Purposes 1996 O.J. (C 274) 10 (adopted in Brussels 30 Nov. 1994 and 1 Dec. 1994)
119. See Resolution on the Harmonization of National Policies on Family Reunification (Ad Hoc Immigration Group, Copenhagen, 1 June 1993), reprinted in BASIC DOCUMENTS ON INTERNATIONAL MIGRATION LAW 487 (Richard Plender ed., 2d ed. 1997) [hereinafter BASIC DOCUMENTS].
120. See Resolution on Manifestly Unfounded Applications for Asylum (Council of Ministers Responsible for Immigration, London, 30 Nov. and 1 Dec. 1992), reprinted in BASIC DOCUMENTS, supra note 92, at 474; Resolution on a Harmonized Approach to Questions concerning Host Third Countries (Council of Ministers Responsible for Immigration, London 30 Nov and 1 Dec. 1992), reprinted in BASIC DOCUMENTS, supra note 92, at 478; Conclusion on Countries in Which There is Generally No Serious Risk of Persecution (Council of Ministers Responsible for Immigration, London, 30 Nov. and 1 Dec. 1992), reprinted in BASIC DOCUMENTS, supra note 92, at 472.
121. See Resolution on Manifestly Unfounded Applications for Asylum (Council of Ministers Responsible for Immigration, London, 30 Nov. and 1 Dec. 1992), reprinted in BASIC DOCUMENTS, supra note 92, at 474; Resolution on a Harmonized Approach to Questions concerning Host Third Countries (Council of Ministers Responsible for Immigration, London 30 Nov and 1 Dec. 1992), reprinted in BASIC DOCUMENTS, supra note 92, at 478; Conclusion on Countries in Which There is Generally No Serious Risk of Persecution (Council of Ministers Responsible for Immigration, London, 30 Nov. and 1 Dec. 1992), reprinted in BASIC DOCUMENTS, supra note 92, at 472.
122. See Resolution on Manifestly Unfounded Applications for Asylum, supra note 93, at 474.
123. See Resolution on a Harmonized Approach to Questions concerning Host Third Countries, supra note 93, at 478-80. Host third countries are countries through which asylum seekers have travelled on their way to the host country. This provision addresses questions about where asylum applicants fating third country removals should have presented their asylum claim. Id. 96. See Conclusion on Countries in Which There is Generally No Serious Risk of Persecution, supra note 93, at 472-73. Safe countries of origin are countries that EU states have decided are safe, partly on the tautological basis that large numbers of asylum applicants from those countries in the past have been rejected. See id. at 472- 73 art. 4.
124. See Resolution on a Harmonized Approach to Questions concerning Host Third Countries, supra note 93, at 478-80. Host third countries are countries through which asylum seekers have travelled on their way to the host country. This provision addresses questions about where asylum applicants fating third country removals should have presented their asylum claim. Id. 96. See Conclusion on Countries in Which There is Generally No Serious Risk of Persecution, supra note 93, at 472-73. Safe countries of origin are countries that EU states have decided are safe, partly on the tautological basis that large numbers of asylum applicants from those countries in the past have been rejected. See id. at 472-73 art. 4.
125. See AMNESTY INTERNATIONAL, PRISONERS WITHOUT A VOICE: ASYLUM SEEKERS DETAINED IN THE UNITED KINGDOM (1994); AMNESTY INTERNATIONAL, CELL CULTURE: THE DETENTION AND IMPRISONMENT OF ASYLUM SEEKERS IN THE UNITED KINGDOM (1996). A parallel trend exists in the United States, where the criminalization and incarceration of non-citizens and asylum seekers in particular has increased dramatically. See Helen Morris, Zero Tolerance: The Increasing Criminalization of Immigration Law, 74 INTERPRETER RELEASES, 29 Aug. 1997, at 1317-26.
126. See AMNESTY INTERNATIONAL, PRISONERS WITHOUT A VOICE: ASYLUM SEEKERS DETAINED IN THE UNITED KINGDOM (1994); AMNESTY INTERNATIONAL, CELL CULTURE: THE DETENTION AND IMPRISONMENT OF ASYLUM SEEKERS IN THE UNITED KINGDOM (1996). A parallel trend exists in the United States, where the criminalization and incarceration of non-citizens and asylum seekers in particular has increased dramatically. See Helen Morris, Zero Tolerance: The Increasing Criminalization of Immigration Law, 74 INTERPRETER RELEASES, 29 Aug. 1997, at 1317-26.
127. See AMNESTY INTERNATIONAL, PRISONERS WITHOUT A VOICE: ASYLUM SEEKERS DETAINED IN THE UNITED KINGDOM (1994); AMNESTY INTERNATIONAL, CELL CULTURE: THE DETENTION AND IMPRISONMENT OF ASYLUM SEEKERS IN THE UNITED KINGDOM (1996). A parallel trend exists in the United States, where the criminalization and incarceration of non-citizens and asylum seekers in particular has increased dramatically. See Helen Morris, Zero Tolerance: The Increasing Criminalization of Immigration Law, 74 INTERPRETER RELEASES, 29 Aug. 1997, at 1317-26.
128. See DANIELE JOLY, HAVEN OR HELL?: ASYLUM POLICIES AND REFUGEES IN EUROPE (1996); AMNESTY INTERNATIONAL, SLAMMING THE DOOR: THE DEMOLITION OF THE RIGHT TO ASYLUM IN THE UK (1996); James C. Hathaway, Harmonizing for Whom?: The Devaluation of Refugee Protection in the Era of European Economic Integration, 26 CORNELL INT'L L.J. 719 (1993). Denmark, for example, recently introduced expulsion measures against reuniting families who are unable to support themselves. See Denmark: Reunited Families Face Expulsion If They Become Dependent on Social Security, MIGRATION NEWSSHEET, Dec. 1997, at 1. For an example of a parallel development in the United States, where families are being required to repay emergency medical costs to qualify for family reunion rights, see Teresa Mears, Immigrants Are Told to Pay Back Aid: Advocates Call Actions by Judges in Miami a Form of Extortion, B. GLOBE, 19 Oct. 1997, at A18; Alissa J. Rubin & Patrick J. McDonnell, Immigrants Hit with Pressure to Repay Benefits, L.A. TIMES, 21 Dec. 1997, at A1.
129. See DANIELE JOLY, HAVEN OR HELL?: ASYLUM POLICIES AND REFUGEES IN EUROPE (1996); AMNESTY INTERNATIONAL, SLAMMING THE DOOR: THE DEMOLITION OF THE RIGHT TO ASYLUM IN THE UK (1996); James C. Hathaway, Harmonizing for Whom?: The Devaluation of Refugee Protection in the Era of European Economic Integration, 26 CORNELL INT'L L.J. 719 (1993). Denmark, for example, recently introduced expulsion measures against reuniting families who are unable to support themselves. See Denmark: Reunited Families Face Expulsion If They Become Dependent on Social Security, MIGRATION NEWSSHEET, Dec. 1997, at 1. For an example of a parallel development in the United States, where families are being required to repay emergency medical costs to qualify for family reunion rights, see Teresa Mears, Immigrants Are Told to Pay Back Aid: Advocates Call Actions by Judges in Miami a Form of Extortion, B. GLOBE, 19 Oct. 1997, at A18; Alissa J. Rubin & Patrick J. McDonnell, Immigrants Hit with Pressure to Repay Benefits, L.A. TIMES, 21 Dec. 1997, at A1.
130. See DANIELE JOLY, HAVEN OR HELL?: ASYLUM POLICIES AND REFUGEES IN EUROPE (1996); AMNESTY INTERNATIONAL, SLAMMING THE DOOR: THE DEMOLITION OF THE RIGHT TO ASYLUM IN THE UK (1996); James C. Hathaway, Harmonizing for Whom?: The Devaluation of Refugee Protection in the Era of European Economic Integration, 26 CORNELL INT'L L.J. 719 (1993). Denmark, for example, recently introduced expulsion measures against reuniting families who are unable to support themselves. See Denmark: Reunited Families Face Expulsion If They Become Dependent on Social Security, MIGRATION NEWSSHEET, Dec. 1997, at 1. For an example of a parallel development in the United States, where families are being required to repay emergency medical costs to qualify for family reunion rights, see Teresa Mears, Immigrants Are Told to Pay Back Aid: Advocates Call Actions by Judges in Miami a Form of Extortion, B. GLOBE, 19 Oct. 1997, at A18; Alissa J. Rubin & Patrick J. McDonnell, Immigrants Hit with Pressure to Repay Benefits, L.A. TIMES, 21 Dec. 1997, at A1.
131. See DANIELE JOLY, HAVEN OR HELL?: ASYLUM POLICIES AND REFUGEES IN EUROPE (1996); AMNESTY INTERNATIONAL, SLAMMING THE DOOR: THE DEMOLITION OF THE RIGHT TO ASYLUM IN THE UK (1996); James C. Hathaway, Harmonizing for Whom?: The Devaluation of Refugee Protection in the Era of European Economic Integration, 26 CORNELL INT'L L.J. 719 (1993). Denmark, for example, recently introduced expulsion measures against reuniting families who are unable to support themselves. See Denmark: Reunited Families Face Expulsion If They Become Dependent on Social Security, MIGRATION NEWSSHEET, Dec. 1997, at 1. For an example of a parallel development in the United States, where families are being required to repay emergency medical costs to qualify for family reunion rights, see Teresa Mears, Immigrants Are Told to Pay Back Aid: Advocates Call Actions by Judges in Miami a Form of Extortion, B. GLOBE, 19 Oct. 1997, at A18; Alissa J. Rubin & Patrick J. McDonnell, Immigrants Hit with Pressure to Repay Benefits, L.A. TIMES, 21 Dec. 1997, at A1.
132. See DANIELE JOLY, HAVEN OR HELL?: ASYLUM POLICIES AND REFUGEES IN EUROPE (1996); AMNESTY INTERNATIONAL, SLAMMING THE DOOR: THE DEMOLITION OF THE RIGHT TO ASYLUM IN THE UK (1996); James C. Hathaway, Harmonizing for Whom?: The Devaluation of Refugee Protection in the Era of European Economic Integration, 26 CORNELL INT'L L.J. 719 (1993). Denmark, for example, recently introduced expulsion measures against reuniting families who are unable to support themselves. See Denmark: Reunited Families Face Expulsion If They Become Dependent on Social Security, MIGRATION NEWSSHEET, Dec. 1997, at 1. For an example of a parallel development in the United States, where families are being required to repay emergency medical costs to qualify for family reunion rights, see Teresa Mears, Immigrants Are Told to Pay Back Aid: Advocates Call Actions by Judges in Miami a Form of Extortion, B. GLOBE, 19 Oct. 1997, at A18; Alissa J. Rubin & Patrick J. McDonnell, Immigrants Hit with Pressure to Repay Benefits, L.A. TIMES, 21 Dec. 1997, at A1.
133. See DANIELE JOLY, HAVEN OR HELL?: ASYLUM POLICIES AND REFUGEES IN EUROPE (1996); AMNESTY INTERNATIONAL, SLAMMING THE DOOR: THE DEMOLITION OF THE RIGHT TO ASYLUM IN THE UK (1996); James C. Hathaway, Harmonizing for Whom?: The Devaluation of Refugee Protection in the Era of European Economic Integration, 26 CORNELL INT'L L.J. 719 (1993). Denmark, for example, recently introduced expulsion measures against reuniting families who are unable to support themselves. See Denmark: Reunited Families Face Expulsion If They Become Dependent on Social Security, MIGRATION NEWSSHEET, Dec. 1997, at 1. For an example of a parallel development in the United States, where families are being required to repay emergency medical costs to qualify for family reunion rights, see Teresa Mears, Immigrants Are Told to Pay Back Aid: Advocates Call Actions by Judges in Miami a Form of Extortion, B. GLOBE, 19 Oct. 1997, at A18; Alissa J. Rubin & Patrick J. McDonnell, Immigrants Hit with Pressure to Repay Benefits, L.A. TIMES, 21 Dec. 1997, at A1.
134. See EUROPEAN COUNCIL ON REFUGEES AND EXILES, SAFE THIRD COUNTRIES: MYTHS AND REALITIES (1995); AMNESTY INTERNATIONAL, PLAYING HUMAN PINBALL: HOME OFFICE PRACTICE IN "SAFE THIRD COUNTRY" ASYLUM CASES (1995); Rosemary Byrne & Andrew Shacknove, The Safe Country Notion in European Asylum Law, 9 HARV. HUM. RTS. J. 185 (1996).
135. See EUROPEAN COUNCIL ON REFUGEES AND EXILES, SAFE THIRD COUNTRIES: MYTHS AND REALITIES (1995); AMNESTY INTERNATIONAL, PLAYING HUMAN PINBALL: HOME OFFICE PRACTICE IN "SAFE THIRD COUNTRY" ASYLUM CASES (1995); Rosemary Byrne & Andrew Shacknove, The Safe Country Notion in European Asylum Law, 9 HARV. HUM. RTS. J. 185 (1996).
136. See EUROPEAN COUNCIL ON REFUGEES AND EXILES, SAFE THIRD COUNTRIES: MYTHS AND REALITIES (1995); AMNESTY INTERNATIONAL, PLAYING HUMAN PINBALL: HOME OFFICE PRACTICE IN "SAFE THIRD COUNTRY" ASYLUM CASES (1995); Rosemary Byrne & Andrew Shacknove, The Safe Country Notion in European Asylum Law, 9 HARV. HUM. RTS. J. 185 (1996).
137. These human rights norms are enshrined in the European Convention on Human Rights, the Convention Relating to the Status of Refugees, and they also are invoked in the various EC agreements. ECHR, supra note 4; Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 U.N.T.S. 150 (entered into force 22 Apr. 1954). The TEU (the Maastricht Treaty) commits the EU to respecting fundamental rights as guaranteed by the ECHR. TEU, supra note 1, art. F(2). The TEU also commits member states to deal with matters of common interest, such as asylum and immigration policy, in compliance with the ECHR and the Convention Relating to the Status of Refugees. TEU, supra note 1, art. K.2. In its preamble, the Resolution on the Harmonization of National Policies on Family Reunification, produced by the Ad Hoc Immigration Group, Copenhagen, 1 June 1993, invokes on the Harmonization of and national law dealing with reunification. Resolution on the Harmonization of National Policies on Family Reunification, supra note 92, at 487 pmbl. The Resolution on Manifestly Unfounded Application for Asylum makes preambular reference to the on Manifestly Unfounded Application for Asylum makes preambular reference to the EU member states "common humanitarian tradition," to the Convention Relating to the Status of Refugees, and to the 1967 New York Protocol. Resolution on Manifestly Unfounded Applications for Asylum, supra note 90, at 474 pmbl; Protocol Relating to the Status of Refugees, 606 U.N.T.S. 8791, concluded at New York, 31 Jan. 1967, entered into force 4 Oct. 1967, 606 U.N.T.S. 267, 19 U.S.T.S. 6223, 1966 U.N.J.Y.B. 285, reprinted in 6 I.L.M. 78 (1967).
138. See ECHR, supra note 4, art. 8; OFFICE OF THE UNITED NATIONS HIGH COMMISISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS, 43-44 (dealing with the principle of family unity).
139. See ECHR, supra note 4, art. 8; OFFICE OF THE UNITED NATIONS HIGH COMMISISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS, 43-44 (dealing with the principle of family unity).
140. See ECHR, supra note 4, art. 6; Convention Relating to the Status of Refugees, supra note 100, art. 16.
141. See ECHR, supra note 4, art. 3; OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, supra note 101.
142. See ECHR, supra note 4, art. 5; Convention Relating to the Status of Refugees, supra note 100, art. 23.
143. See TEU, supra note 1, art. F. See also WYATT & DASHWOOD, supra note 73, at 656; RALPH FOLSOM, EUROPEAN UNION LAW IN A NUTSHELL 22-24 (2d ed. 1995).
144. This right is enshrined in international law. "Everyone has the right to leave any country includes his own, and to return to his country." UDHR, supra note 43, art 13 (2) (emphasis added). "Everyone shall be free to leave any country, including his own." International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, 999 U.N.T.S. 171 G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc A/6316, art. 12(2) (1966) (entered into force 23 Mar. 1976). "No one shall be arbitrarily deprived of the right to enter his own country." Id. art. 12(4). See Protocol 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 16 Sept. 1963, art. 3(2), Europ. T.S. 46, 7 I.L.M. 978 (1968) (entered into force 2 May 1968), reprinted in LEADING CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS, supra note 5, Annex I, at 685 (securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto).
145. See Council Directive 64/221 of 25 February 1964 on the Co-Ordination of Special Measures Concerning the Movement and Residence of Foreign Nationals Which Are Justified on Grounds of Public Policy, Public Security or Public Health, 1963-1964 O.J. SPEC. ED. 117 (EEC TREATY).
146. See Case 36/75, Rutili v. Ministry of the Interior, France, 1975 E.C.R. 1219. 1 C.M.L.R. 140 (1976); Case 30/77, R v. Bouchereau, 1977 E.C.R. 1999, 2 C.M.L.R. 800 (1977). Moreover, establishment of citizenship of the Union may further restrict the exclusion power of member states with respect to EU citizens.
147. The norms most relevant here are: the non-refoulement (non-deportation) provisions of Article 33 of the Convention Relating to the Status of Refugees; the right to respect tor family and private life enshrined in Article 8 of the ECHR; the due process norms mandating access to a fair procedure in Article 13 of the ECHR; and the protection from inhuman and degrading treatment set out in Article 3 of the ECHR. Convention Relating to the Status of Refugees, supra note 100, art. 33; ECHR, supra note 4, arts. 3, 8, 13.
148. See JOLY, supra note 98; AMNESTY INTERNATIONAL, supra note 98.
149. Challenges to the excludability of non-nationals who are not settled arise primarily in the case of asylum seekers. See Cruz Varas v. Sweden App. No. 15576/89, 14 Uer. H.R. Rep. 1 (1991); Vilvarajah v. United Kingdom, App. Nos. 13163/87, 13164/87, 3165/ 87, 13447/87, 13448/87, 14 Eur. H.R. Rep. 248 (1992); see also Soering v. United Kingdom, App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989) (resisting deportation following criminal conviction conviction); D. v. United Kingdom, App. No. 30240/96, 22 Eur. H.R. Rep. CD 112 (1996) (resisting deportation following criminal conviction).
150. Vulnerability to deportation or exclusion for setted residents also arise in situation of alleged threat to national security. See Case of Chatal v. United Kingdom, 1996-V Eur. Ct. H.R. (ser. A) at 1831 (1996). These situations however are similar to those that arise for EU nationals (excludable on grounds of public policy, public security, or public health) and essentially revolve around considerations of security or the threat of inhuman and degrading treatment rather than questions of belonging or identity.
151. See Interview with Eurostat, Department of Migration Statistics, in London, Eng (28 June 1997) (revealing that several EU states refuse to disclose these figures, considering them confidential domestic information).
152. A variety of complex reasons exist as to why settled migrants fail to adopt the nationality of the host state. These reasons include onerous naturalization requirements, reluctance to forfeit the nationality of country of origin in cases where dual nationality is not permitted, and a lack of identification with the host state. See Brandt, supra note 63, at 1.
153. See SASKIA SASSEN, CITIES IN A WORLD ECONOMV (1994) (describing the diversity, the cultures, and identities "with otherness" present in all major cities, as well as the various mechanisms that segment and devalue the contributions of the immigrant populations).
154. This is not only an issue in Europe. A clear trend towards maximizing the number of deportations of "criminal aliens" is also discernible in the United States. On 28 December 1995, the United States Immigration Naturalization Service (INS) announced that it had removed a record 51,600 criminal aliens from the United States, two-thirds of whom were deported after serving prison terms. See Morris, supra note 97, at 1322-25.
155. Such cases include the murder of the school boy Stephen Lawrence at bus stop in South London by racist youth, the subject of private action brought by the parents following the police's failure to bring a criminal case. See Stephen Lawrence: Police Complaints Authority Report, STATEWATCH, Feb. 1998, at 11-12. A similar case involves the murder of five-year-old Loubna Benaissa in Brussels by convicted pedophile Patrick Derochette, cursorily investigated by the police and only fully brought to light by her eighteen-year-old sister's persistent campaigning. See Stephen Bates, A Killing Ignored, GUARDIAN, 6 Aug. 1997, at G2.
156. Such cases include the murder of the school boy Stephen Lawrence at bus stop in South London by racist youth, the subject of private action brought by the parents following the police's failure to bring a criminal case. See Stephen Lawrence: Police Complaints Authority Report, STATEWATCH, Feb. 1998, at 11-12. A similar case involves the murder of five-year-old Loubna Benaissa in Brussels by convicted pedophile Patrick Derochette, cursorily investigated by the police and only fully brought to light by her eighteen-year-old sister's persistent campaigning. See Stephen Bates, A Killing Ignored, GUARDIAN, 6 Aug. 1997, at G2.
157. STATEWATCH, Sept.-Oct. 1996, at 3.
158. Id.
159. Id.
160. Id.
161. Though acquisition of French nationality is almost automatic for a child born in France to foreign parents, the acceptance of French nationality is only binding once a voluntary declaration is made between the ages of sixteen and twenty-one. In the absence of such a declaration, birth is not sufficient to claim nationality. (Changes to this aspect of French naionality law are imminent.) See Patrick Weil, Nationalities and Citizenships: The Lessons of the French Experience for Germany and Europe, in CITIZENSHIP, NATIONALITY AND MIGRATION IN EUROPE, supra note 44, at 79.
162. See Ali Mehemi v. France, MIGRATION NEWSSHEET, Aug. 1996, at 1.
163. See id. This case was recently the subject of a European Court ot Human Rights' judgment, overturning the French state's decision. See infra note 149.
164. See D.B. v. France App. No. 25404/94, Eur. Comm'n H.R. Dec & Rep. (1996) (upholding the French government's decision to deport the applicant by a Commission majority).
165. See v. France, App. No. 25613/94, Eur. Comm'n H.R. Dec. & Rep. (1996) (upholding the French government's decision by a Commission majority).
166. See Mohamed Zehar, App. No. 25408/94, MIGRATION NEWSSHEET, Aug. 1996, at 2.
167. Étienne Balibar, The Nation Form, 13 REVIEW 349 (1990).
168. The recent report on reform of nationality and immigration laws presented to Prime Minister Jospin, despite some proposed improvements to the harsh current regime, reiterates support for "effective expulsion" of criminal aliens. France: Modest Proposals to Amend Immigration Laws, MIGRATION NEWSSHEET, Sept. 1997, at 2.
169. See Germany: Hamburg Also Wants Quicker Expulsion of Foreigners, MIGRATION NEWSSHEET, Sept. 1997, at 3-4.
170. See Germany: Aliens Bill Facilitating Expulsions Approved by Bundestag, MIGRATION NEWSSHEET, Dec 1996, at 5. The German Land of Hamburg also recently has introduced a motion for a resolution aimed at the more rapid expulsion of foreigners who commit offenses in Germany. See Germany: Hamburg Also Wants Quicker Expulsion of Foreigners, supra note 130, at 3-4.
171. See Germany: Aliens Bill Facilitating Expulsions Approved by Bundestag, MIGRATION NEWSSHEET, Dec 1996, at 5. The German Land of Hamburg also recently has introduced a motion for a resolution aimed at the more rapid expulsion of foreigners who commit offenses in Germany. See Germany: Hamburg Also Wants Quicker Expulsion of Foreigners, supra note 130, at 3-4.
172. The leading cases are those mentioned in the ensuing text, i.e., Moustaquim, Beljoudi, and Djeroud. The most recent case where the European Court of Human Rights gave judgment, on 19 Feb. 1998, is the Case of Dalia v. France. Case of Dalia v. France, Eur. Ct. H.R. (ser. A) (1998).
173. The ECHR makes few inroads into the traditional leeway afforded to states with respect to entry and residence of non-nationals. See Ryszard Cholewinski, Strasbourg's 'Hidden Agenda'?: The Protection of Second-Generation Migrants from Expulsion Under Article 8 of the European Convention on Human Rights, 12 NETH. Q. HUM. RTS. 287, 289 (1994).
174. Moustaquim Case, 193 Eur. Ct. H.R. (ser. A) (1991).
175. Id. at 17.
176. ECHR, supra note 4, art. 8. An unqualified right includes, for example, the right not to be subjected to torture or to inhuman or degrading treatment or punishment. See id. art. 3.
177. Id. art. 8(2).
178. Moustaquim Case, 193 Eur. Ct. H.R. at 11.
179. Itinerant migrants carve out a precarious living by moving from place to place to evade official control, selling trinkets on the street of major European cities, working as kitchen hands in restaurants or clubs, or taking on casual labor on building sites or farms. For a description of some cases of rejected asylum seekers forced to travel from one EU state to another in search of refuge, see AMNESTY INTERNATIONAL, PLAYING HUMAN PINBALL: HOME OFFICE PRACTICE IN "SAFE THIRD COUNTRY" ASYLUM CASES 22-25 (1995).
180. Id. at 13.
181. Id. at 16. Three of the European Commission judges dissented from the Commission's finding that there had been a violation of Article 8. Id. at 36 (Soyer, Sperduti, and Busuttil, J.J., dissenting). Two of the European Court of Human Rights judges dissented from the Court's finding. Id. at 24 (Bindshedler-Robert and Valticos, J.J., dissenting).
182. Moustaquim Case, 193 Eur. Ct. H.R. at 19.
183. Case of Beldjoudi v. France, 234 Eur. Ct. H.R. at 27 (ser. A) (1992). See also Beldjoudi v. France, App. No. 12083/86, 14 Eur. H.R. Rep. 801, 833 (1992).
184. Case of Beldjoudi v. France, 234 Eur. Ct. H.R. at 28; Beldjoudi v. France, App. No. 12083/86, 14 Eur. H.R. Rep. at 833.
185. Case of Beldjoudi v. France, 234 Eur. Ct. H.R. at 42; Beldjoudi v. France, App. No. 12083/86, 14 Eur. H.R. at 821. Interestingly, the French military authorities deemed Beldjoudi fit for national service after he had expressed a desire to recover French nationality. Case of Beldjoudi v. France, 234 Eur. Ct. H.R. at 28; Beldjoudi v. France, App. No. 12083/86, 14 Eur. H.R. at 833.
186. Case of Beldjoudi v. France, 234 Eur. Ct. H.R.; Beldjoudi v. France, App. No. 12083/86, 14 Eur H.R. at 835. Another ECHR case dealing with the expulsion of secondgeneration immigrants is Lamguindaz v. United Kingdom, 258 Eur. Ct. H.R. (ser. A) (1993).
187. Djeroud Case, 191 Eur. Ct. H.R. (ser. A) (1991); Djeroud v. France, App. No. 13446/87, 14 Eur. H.R. Rep. 68 (1992).
188. ECHR, supra note 4, art. 8(2).
189. Djeroud v. France, App. No. 13446/87, 14 Eur. H.R. Rep. at 78-79 (emphasis added).
190. See Case of Dalia v. France, Eur. Ct. H.R. (ser. A) (1998); Case of Mehemi v. France, App. No. 25017/94 (1997), available on 〈http://194.250.50.200/eng/MEHEMI.e.html〉 (European Court of Human Rights website); D.B. v. France, App. No. 25404/94, Eur. Comm'n H.R. Dec. & Rep.; A.E.B. v. France, App. No. 25613/94. See also cases discussed infra.
191. Boughanemi v. France, 1996-II Eur. Ct. H.R. (ser. A) (1996); Boughanemi v. France, App. No. 22070/93, 22 Eur. H.R. Rep. 228 (1996) (Commision report).
192. Boughanemi v. France, App. No. 22070/93, 22 Eur. H.R. Rep. at 229. See also Boughanemi v. France, 1996-II Eur. Ct. H.R.
193. Boughanemi v. France, App. No. 20770/93, 22 Eur. H.R. Rep. at 242.
194. Id. at 228, Boughanemi v. France, 1996-II Eur. Ct. H.R.
195. Boughanemi v. France, 1996-II Eur. Ct. H.R.; Boughanemi v. France, App. No. 22070/ 93, 22 Eur. H.R. Rep. at 246.
196. According to one scholar, two crises exist in France today. One crisis involves the notion of "French identity," and the other involves employment and social integration. Both the incidents surrounding Muslim students seeking to wear the veil in school and the growing electoral success of Le Pen can be related to these underlying crises in French society. See KEPEL, supra note 25, at 153.
197. See Max Silverman, State, Nation and Society in France, in CITIZENSHIP, NATIONALITY AND MIGRATION IN EUROPE, supra note 44, at 146.
198. See Boughanemi v. France, App. No. 22070/93, 22 Eur. H.R. Rep. at 249 (Martens, J., dissenting).
199. Id.
200. Id. at 250.
201. Id.
202. Id. at 250. The exceptional circumstances would include serious crimes against the state, political or religious terrorism, or holding a leading position in a drug trafficking organization. Id. at 251.
203. Bouchelkia v. France, 1997-1 Eur. Ct. H.R. (ser. A) 47 (1997).
204. Id. at 65.
205. Id. The Court attaches great importance to the nature of the offence which gave rise to the deportation order. While it is true that the applicant was a minor aged 17 when he committed the serious crime . . . of aggravated rape, that fact . . . does not in any way detract from the seriousness and gravity of such a crime. . . . The fact that, after the deportation order was made and while he was an illegal immigrant, he built up a new family life does not justify finding, a posteriori, that the deportation order made and executed in 1990 was not necessary. Id.
206. Id. at 67 (Palm, J., dissenting).
207. Id.
208. Case of El Boujaïdi v. France, (123/1996/742/941), Eur. Ct. H.R. (ser. A) Summary ¶ B (1997), available on 〈http://194.250.50.200/eng/ELBOUJAIDI.e.html〉 (European Court of Human Rights website).
209. Id. ¶ 40 (website version).
210. Case of Boujlifa v. France, (122/1996/741/940), Eur. Ct. H.R. (ser. A) ¶ 45 (1997), available on 〈http://194.250.50.200/eng/BOUJLIFA.html〉 (European Court of Human Rights website).
211. Id. ¶¶ 44, 45 (website version).
212. Id. (Baka and Van Dijk, J.J., dissenting).
213. Case of El Boujaidi, supra note 168 (dissenting opinion of Judge Foighel, referring to other similar dissenting opinions).
214. Case of Boujlifa, supra note 170 (Baka and Van Dijk, J.J., dissenting).
215. Case of Mehemi, supra note 150.
216. Id.
217. Id.
218. Id.
219. Id.
220. See M.C. v. Belgium, App. No. 2174/93, 12 Eur. Comm'n H.R. Dec. & Rep. 1996-III, 874-965.
221. Id. at 925, ¶ 38.
222. For an account of safe third country policies, see R. Byrne and A. Shacknove, The Safe Country Notion of European Asylum Law, 9 HARV. HUM. RTS. J., 185-228. For some compelling case histories see EUROPEAN COUNCIL ON REFUGEES AND EXILES, supra note 99, and AMNESTY INTERNATIONAL, supra note 139.
223. For an account of safe third country policies, see R. Byrne and A. Shacknove, The Safe Country Notion of European Asylum Law, 9 HARV. HUM. RTS. J., 185-228. For some compelling case histories see EUROPEAN COUNCIL ON REFUGEES AND EXILES, supra note 99, and AMNESTY INTERNATIONAL, supra note 139.
224. "[T]he idea that the international migrations now directed largely to the center from former colonial territories . . . might be the correlate of the internationalization of capital that began with colonialism is simply not part of the mainstream interpretation of that past and the present." Saskia Sassen, Identity in the Global City: Economic and Cultural Encasements, in THE GEOGRAPHY OF IDENTITY 131, 142 (Patricia Yaeger ed., 1996).