Professor Dimitry V. Kochenov leads the Rule of Law Working Group at CEU Democracy Institute in Budapest and teaches at CEU Department of Legal Studies in Vienna.
How would you define global citizenship? Do you agree with this concept?
I stand with Raymond Aron: since citizenship is about exclusion, ‘global citizenship’ is an oxymoron – a dramatic misrepresentation of what citizenship is about. What I study is global citizenship apartheid. From this perspective citizenship is an arbitrary blood-based ascription of liabilities, which is totalitarian in nature and imposed on the majority of the population of the world. James Tully is right: citizenship is part of the colonizer package, because, historically, racialised inhabitants of the colonies could not enjoy the same rights as the ‘civilized’ white colonizers. What my scholarship suggests is that the current function of citizenship is to replay this kind of hierarchy of the ‘standards of civilization’ of pre-UN international law by denying dignity and rights to billions of individuals.
I go further: today’s citizenship function precisely is to promote racism in the world, where rights are de facto distributed based on blood. Those, whose blood is good enough, get the privileged citizenship of the global West – a Greek great-great-grandfather is enough. In my MIT Press book I call such guys ‘Super citizens’. Global citizenship treats everyone else as essentially non-civilized, i.e. disposable, as we see in the operation of the EU’s Death Machine, which I described with Sarah Ganty. Such people lack dignity by blood (yes indeed, it is blood, as naturalizations are but 2% of citizenship conferrals and also unequally distributed among nationality quality categories). Hans Kundnani could be right that in contemporary Europe blood is ‘culture’:
officially they know no blood-based ascription of liability. I think it is our responsibility at least to articulate with clarity that this is the most important principle underpinning global population management today. We could then start thinking about how to abolish this kind of premodern, neo-feudal status quo. This is why I would never say that global citizenship is something that we should strive for, since citizenship is a totalitarian excuse for ethno-racist exclusion from rights all around the world.
Alongside Dr. Kälin you created the ‘Quality of nationality index’ to rank the quality of nationalities worldwide. What was the objective behind this initiative, and what has been the impact of this work?
This index is designed for those who pretend that a racist, caste-based global population management is justifiable, if not necessary, in the 21st century. To explicitly illustrate what any inhabitant of the formerly colonized world, the former Soviet space or what used to be the ‘non-civilized’ spaces from China and the Ottoman Empire to Siam, would know anyway, we have chosen to demonstrate with numerical data how huge the discrepancies in the quality of different nationalities are.
The numbers speak for themselves. Examining both internal and external factors, it becomes evident that the levels of quality within the realm of citizenship are such that meaningful comparisons between the lowest and the highest tiers of quality are not actually possible. Consider, for instance, Swiss citizenship, which bears no resemblance to the citizenship of a place like Afghanistan, Madagascar, or Bangladesh.
The global human rights regime is part of the problem here, as the one most important right on which all the others depend is missing from the human rights canon: the right to enter and reside. Given that, following Branko Milanović, global inequalities are territorial, making it a crime for billions of people of deficient blood to try to leave the formerly colonized areas of no opportunity turns the institution of citizenship into a key tool of global inequality and oppression. Human rights, especially the problematic fight against statelessness, entrench this oppressive regime, criminalizing dignity and making equality impossible.
While passports of the highest quality, such as the Swiss or the Irish one, grant access to work and residence in countless richest states, sometimes exceeding 40 (a phenomenon that I branded, following A.V. Dicey, ‘intercitizenships’), the formerly colonized and ‘non-civilized’ parts of the world issue passports that lock the population into a single territory of no opportunity at all. Afghanistan, Madagascar, the Central African Republic, and numerous similar spaces are great examples of this. Who cares about the misery in the mountains of Afghanistan? The problem is that there are no rights there and for someone assigned Afghani citizenship at birth it is de facto a crime to migrate: the EU alone kills thousands of low-born innocents per year in the Mediterranean or tortures them together with Lukašenka, the Belarusian dictator. The world’s untouchables have to stay in the gutters of the world, this is the law – and what citizenship apartheid is all about.
In this sense, once again, citizenship is one of the primary factors underpinning global injustice. It goes without saying, as I already underlined, that race is always at play, as is the classical approach to the inhabitants of the rest of the world, outside Europe and the US and the rest of the ‘West’, as deficient or non-civilized: upgrading the personal status of these ‘victims of citizenship’ always comes at a huge cost (time, dignity and money): living several years in Denmark, learning useless Estonian, passing ‘culture’ tests, or paying a million euro to the Maltese: the sacrifices of the losers of Ayelet Shachar’s ‘Birthright lottery’ when legally compared to the civilized former colonizers are huge. For some such elevation is forever foreclosed: Yossi Harpaz showed that only the relatively privileged citizens of the ‘second world’ – Brazil, Israel, Russia – naturalize into ‘super-citizens’ – it is never the world’s untouchables. This is what global passport apartheid is about: the Index I edited with Justin Lindeboom illustrates it well.
You have previously highlighted the conflict between the autonomous nature of EU citizenship, as defined by CJEU case law, and Member State nationality. Do you believe that the competence of Member States on nationality issues is threatened by the CJEU’s recent case law on the loss of EU citizenship?
Not at all. In fact, I think the Court of Justice does not do enough to transpose the core values of the Union into the EU citizenship domain. Citizens are forgotten. The case-law shows no sense of purpose and even less humility: cross-border fetishism allows the moral-ethical void to flourish – those who need help are usually outside the scope of the law, as Charlotte O’Brien brilliantly illustrated. A distinction remains, running between the mode of acquisition, which is totally derivative, and the substance of the status itself, as AG Poiares Maduro underlined in Rottmann. If you do not have a national citizenship, you cannot be a Union citizen. This was reconfirmed by Brexit notwithstanding the abusive lawyering of some French jokers, who should be debarred for giving people false hopes. Yet, once you have EU citizenship, it starts living a life of its own, with a huge impact on the Member State nationalities. Protecting the citizen is key. The more layers of protection you have as a potential victim of human rights violations and assaults by the authorities, or citizen rights violations, the better. What any observer would expect of the ECJ is precisely to enforce the highest level of protection.
The Court’s track record is overwhelmingly mixed. Not surprisingly: the nationalities of the Member States are naturally at war with the citizenship of the Union. This happens because the starting point of EU law is one fundamental principle that denies everything that the liberal democratic institutions stand for: the drive to discriminate against those who ‘do not belong’, and offer a better deal to the citizens, who justify the existence of the polity. EU’s non-discrimination on the basis of nationality prohibits exactly that, assaulting classical democratic nationalism at its root. No, Greece cannot be for the Greeks, even if the idea of the Greek state is precisely justified by the notion that the citizens of Greece can make their own laws, which will then apply in Greek territory, to ensure their mythical destiny is in their proverbial hands: the ABC of democratic statehood.
The thing that worked for the EU and both mobilized and divided plenty of Europeans was precisely the denial of the sacred cows at the national level. Because the EU is very clear about the fact that you cannot deny someone a job in Paris, just because they are Lithuanian.
This is what the EU is for. The conflict with the national democratic-nationalist mantras is real and obvious. It is there by design. This unavoidable tension creates all the interest in the field of EU citizenship law. JHH Weiler was the first to note I think that while undermining the legitimacy and constitutional basics of its Member States the EU offers nothing in return, unless you think you voted for Ursula von der Leyen in the last EP elections or believe that the third world war was supposed to be between France and Germany: the Emperor is naked. Yet I think the EU managed to discover an unlikely raison d’être for itself as of late: it emerged as a complex façade for the Member States to break their own Constitutional and ECHR obligations – like Russia and Belarus, the EU chose to protect Europeans from foreign human rights guarantees.
My intuition is simple: without the EU its members would encounter more difficulties and scrutiny in running mass killings while enforcing passport apartheid in the Mediterranean: you need a shield from accountability for that: what Sarah Ganty and I call EU’s ‘lawlessness law’.
Yet, however shallow the EU’s procedural Rule of Law ideal, deriving legitimacy from breaking its own law and killing and torturing migrants legitimizes only so much – it is not an alternative to a sound democracy, which the EU and its citizenship precisely oppose as a structural matter. Moreover, obviously, this situation cannot last for long: the Kirchberg salami is bound to drown in Bosphorus, as Petra Bárd and I put it in the pages of the JCMS.
Turning to the substance of the status of EU citizenship, however, the Court is failing us here too. Troubles mostly relate to the laissez-faire approach that the Court adopts in scrutinizing the absurd and illogical moves of the Member States in undermining the rights of particular groups of people as well as the very idea of equality before the law. So, when there is a linguistic or ethnic minority at stake, the CJEU usually pretends that this minority does not exist, eagerly taking the oppressor’s side – even cross border movement does not help as Runiewicz shows. The CJEU pretends that the uniqueness of your Member State nationality is something that Member States can legitimately fight for, precisely in the context where discrimination on the basis of nationality is prohibited. This approach is at its best at JY and Tjebbes, where no serious scrutiny of principally anti-European arguments of the Member States was forthcoming: renunciation of previous nationality obligations cannot be in line with non-discrimination on the basis of nationality, as it shows principled mistrust of the citizenships of other Member States which is out of place in a system where the relevance of such nationalities is de facto ‘abolished’ in the context of EU law, as Gareth Davies explained. Demonization of multiple citizens is new to EU law and introduces a new requirement of discrimination unknown to the Treaties. Eagerly hitching a ride on the bandwagon of arbitrary nationalist discrimination, the CJEU essentially ditches all the good intentions of the drafters, effectively depriving EU Treaties and its own case-law of the sense of reason or purpose.
The latter is nothing new to Kirchberg, however: we all remember how EU citizenship started:
Imagine the Court saying that free movement of goods was not intended to have any kind of effect on the scope of EU law! How do we interpret that? Already a while ago Sir Richard Plender and I called upon the Court to read the Treaties. The Treaties do not create law without scope – the Court does – and at the expense of EU citizens’ rights and while flirting with nationality discrimination. All this to me is a sign that the Court of Justice is badly afraid of the Member States. The scared Court fathers the case-law, which is so principally shortsighted and ignorant of key rights that the citizenship the Court is shaping emerges as an oxymoronic hyperbole: the citizen is not treated with basic respect. Opinion 2/13 is the culmination of this: EU citizens do not deserve human rights and the Rule of Law through additional checks of the EU’s authority and actions, putting the EU as a legal system at odds with basic values the European legal space espouses. In the meanwhile, our basic rights are being eroded, including the ABC of law: the presumption of innocence, set aside with the help of EAWs, as Petra Bárd and I argued.
Fear of the collective sovereign and the desire to please breed servile incoherence, it seems to me. EU citizens cannot be sure if the Court – and the ideal of justice it espouses – is on their side. The Member States are constantly reconfirmed in the ability to do whatever they want in the citizenship and other domains at the expense of all Europeans, who legitimately expect what the Treaties promise them. This ranges from making sure that the CJEU is under ECtHR scrutiny and that all the core values of Article 2 apply to it – to the basic legality: if there is no vacancy at the Court, no usurper can possibly be appointed as happened with a buffoonish ‘AG’ sworn in in shameful secrecy to poison the legitimacy of the Court for a year, as Graham Butler and I observed in the ELJ.
If you are an American, an Indian, or a Russian, however ‘legal’ in the EU, you do not have any real rights in the internal market. You cannot select the Member State of residence. The core premises of EU law, the EU’s territory of rights, do not exist for you. This is what Étienne Balibar called ‘apartheid européen’, which is a natural outflow of the EU’s colonial past, and which has now reemerged in a more acute form, murdering dozens of thousands of non-Europeans and rendering the rights of migrants absolutely ephemeral as we already discussed. In the absence of any accountability for mass crimes no one is going to jail anytime soon: the EU’s justice deficit in this domain is absolute. While thousands are dying, no-one is standing against FRONTEX and the Commission is perfecting the deterrence through killing policy.
Last but not least, this year we are celebrating 20 years of the 2004 enlargement of the EU. How did this enlargement affect the constitutional identity of the Union? Do you think that the future enlargements will have a similar effect?
This is a very interesting question because as a realist I wish I could honestly believe that there will be future enlargements. In part, an enlargement is not a realistic prospect due to how the Commission, together with the Member States, conducted the preparation of the previous three waves of enlargement, rightly accused by Elena Basheska of lacking rule of law. We were told that preparing the Member States-to-be for accession by testing their compliance with EU law and values in advance, even before they officially joined, would fundamentally change the nature of those states, in terms of making them lasting democracies adhering to the rule of law. Through the examples of Hungarian de-democratization and Poland’s bizarre escapades into the shadows of a constitutional breakdown we learn that nothing is entrenched and that what the Commission had promised was absolutely not the case in reality. However, we will see what unfolds in Poland in the next four years: my hope is that a new swing into illegality could be avoided.
The lack of values-entrenchment in the context of EU enlargements was perfectly predictable. My first book, EU Enlargement and the Failure of Conditionality, was written while the first wave of the last enlargement was being prepared. Based simply on the analysis of the documents that the Commission released, it was already overwhelmingly clear back then that EU institutions were failing on the job and values’ entrenchment was not coming. Worse still, it was clear that the EU is not a vehicle of values. It is obvious that all these countries benefited from that enlargement, just as the EU – also constitutionally, to agree with Wojciech Sadurski – precisely allowing to commence building supranational principles missing until now, as Andrew Williams explained in his Ethos of Europe. All success was truncated by the inability to shape lasting democratic transformations, however.
We know that the EU was afraid of ‘the East’, designing new enlargement law at the very end of the last century in order to deal with this fear. We also know that what it has designed failed.
There is absolutely no one in this world who can legitimately claim that Hungary is in any way better protected from democratic backsliding than Spain or Ireland, while the enlargement law that applied to the latter was absolutely different and less intrusive.
It is thus clear that Hungary cannot be repeated again, which means that EU’s standard pre-accession conditionality that was branded by a self-congratulatory Commission as a success should be deeply rethought and probably even set aside, as Ronald Janse and I have argued, to make future enlargements possible. The same deep reform is unavoidable at the enforcement level too: so far, the Union has been unprincipled and weak, mostly ‘losing by winning’, as Kim Scheppele, Barbara Grabowska-Moroz and I have argued. Every Commission’s win was ultimately the values’ loss, in the context of the harmful ‘supremacy Rule of Law’ vision of the Union’s legal structures which is clearly emerging.
The EU has to be reformed internally, followed by enlargement law reform. The conditionality approach that led to all 21st century accessions failed to entrench transformation and the harmful terrorizing of candidates – the alienating Greek practice – made the situation worse. It would only be fair and beneficial to acknowledge this to avoid new disruptions in Europe and relaunch enlargements at a certain point keeping this in mind.
Let’s keep our fingers crossed on all we have discussed. Ultimately, this is the only thing we can do, because, as a non-democracy, the EU’s authoritarian liberalism will not leave it up to us to decide.
The views and opinions expressed in this article are those of the interviewee and do not necessarily reflect the views or positions of the Review of Democracy.
Article recently published by De Jure Journal Volume 17 Issue I.
