Toward Post-National Membership? Tensions and Transformation in German and EU Citizenship.

• Author: Banerjee, Kiran

1. Introduction II. German Membership Regimes: A Crucial Case III. Theorizing Post-Nationalism: Concepts and Claims IV. The Dis-Aggregation of Citizenship: Germany's Migrant Populations, V. Germany's Persisting Ambiguities of Belonging and Membership I. INTRODUCTION

   We are in a time of transition, or at least uncertainty, with regard to the status and future of our contemporary conceptions of community, membership, and belonging. The recent explosion of global discussions, both scholarly and political, about immigration, multiculturalism, and the role of universal human rights norms in constraining state action, are a testament to the unsettled and contested nature of our traditional conceptual frameworks in light of the rapid developments of the post-war era.

   Very much at the intersection of such concerns has been the long-running debate over post-national citizenship, which has focused on perceived transformations in the meaning and significance of citizenship rights and status in relation to nationality, the state and emerging transnational forces. Beginning with Yasemin Soysal's influential and provocative The Limits of Citizenship, proponents of the post-nationalist position have argued that we have witnessed and are continuing witness to a fundamental transformation in the nature of citizenship. (1) Pointing to a diverse set of phenomena such as globalization, the expansion and entrenchment of extensive migrants' rights decoupled from national citizenship, and the growing power of human rights norms to shape state behavior and policy, they have sought to examine shifts in the forms of identity, rights, and status, that have traditionally been associated with national membership, while also problematizing the substance, location, and category of citizenship as traditionally understood. (2) At their most bold, these scholars question "the assumption that national citizenship is central to membership in a polity" and argue that our contemporary world is characterized by the diminished importance--and inevitable irrelevance--of the nation state and national citizenship, alongside the rise of a "broadened, post-national constellation of membership." (3) Moreover, they argue that states are experiencing a "weakening of sovereign control" as globalization challenges the competencies of the nation state and human rights discourse further inscribes normative bounds on the exercise of sovereignty with regard to immigration and the status of non-citizen residents. (4)

   In response, a number of trenchant critiques have challenged the claims of post-nationalists on both empirical and conceptual grounds. These critics have argued for the persisting centrality of national citizenship to full membership in a state, called into question the significance of international norms by pointing to the role of domestic dynamics, and suggested that post-nationalist theorists irresponsibly, if unwittingly, glorify what is at most a derivative legal status, amounting to little more than a tribute to second class citizenship. (5) Simply put, given the continued preeminence of the nation state, any "citizenship" outside of national citizenship is not worthy of the name and talk of the declining importance of national membership is at best unrealistic and, at worst, dangerous.

   This long-running debate over the nature of contemporary articulations of citizenship has taken on increasing practical significance, especially in the European context. There, the unfolding implications of the European Union, growing doubts about the integrationist policies of several member states, and attempts of domestic governments to shore up the meaning of national "membership" all suggest a series of further potential transformations and shifts in state policy. Such phenomena clearly imbricates with the significance of citizenship and point to the need to clarify the relationship of citizenship status, rights, and identity to both the domestic and international sphere.

   Against this backdrop of scholarly discussions and emerging policy responses, this article seeks to address the salience of the post-nationalist position for understanding contemporary practices of membership in Europe and more broadly, using the context of Germany to examine two developing, though seemingly diverging, regimes of non-citizen resident rights. I begin by explaining the importance of the German case for assessing transformations of citizenship and membership beyond the national. From here I move to a conceptual clarification of the post-nationalist position in order to show the emphasis placed on the "emergence of locations for citizenship outside the confines of the nation state." (6) Following recent scholarship, I suggest that the central aspects of the post-national position can be distinguished as two sets of separate claims. (7) First, post-nationalists assert that the modes of identity, bundles of rights, and status traditionally accorded through national membership are becoming decoupled from citizenship, nationhood, and the nation state. Second, post-nationalists make important claims about the sources and forces at play in the generation of these new forms of membership--in particular, they suggest that the growing prominence of transnational and international human rights norms are responsible for these transformations.

   My goal in this article is to assess the first claim advanced by post-nationalists in light of recent developments in German domestic citizenship law and the continued evolution of European Union citizenship status. I argue that taking these features into account leads to an ambivalent, though provocative, perspective on the emergence of post-nationalist trends. It is clear that questions of nationality remain central to the status of Germany's 'non-European' migrant population. Even in the wake of a substantive liberalization of German citizenship law, the dynamics surrounding Germany's third-country migrant populations seemingly point toward the continued importance of the national, both in the ways membership is conceived in German political discourse, as exemplified in continued opposition to dual nationality, and in the ambivalent response of migrants themselves to the current naturalization reforms. Yet, alongside this re inscription of the national, recent transformations in European Union Citizenship and their concomitant implications within Germany do point to the belated emergence of an, albeit narrowly accessible, post-national form of membership. (8)

   I conclude by suggesting that even as post-nationalist trends are emerging as a reality, we ought to remain far from optimistic about the normative implications of such developments and recognize that we may be witnessing the contingent coexistence of multiple regimes of membership. The incipient post-national status instantiated in Germany within the context of the EU is highly selective, and while generating a class of rather privileged and protected transnational citizens, exists alongside the continued political exclusion of the majority of Germany's non-European migrants. Thus, lacking the protection of a robust supranational authority, the position of third-country nationals within Germany remains substantively precarious.

2. GERMAN MEMBERSHIP REGIMES: A CRUCIAL CASE

   Contemporary Germany provides an ideal case for assessing the robustness of arguments regarding the emergence of post-national citizenship, as well as the significance of such potential transformations. As of 2008, Germany possessed the largest population of foreign citizens of the 27 EU member states, with 7.25 million persons comprising 8.8 per cent of its total population. (9) Therefore, in matters of sheer scale and prominence among fellow EU states, Germany is a pivotal test for assessing the relationship of nationality and citizenship rights. Moreover, of its non-nationals, Germany hosts the greatest number of both non-national EU-citizens and third-country nationals of all member states at 2.5 and 4.7 million, respectively. (10) Attending to the features of the still unfolding status of European Union Citizenship is particularly important, given that post-nationalists frequently cite EU citizenship as the most elaborate legal enactment of post-national membership. (11) Moreover, as a result of historically restrictive naturalization policies and relatively high levels of immigration, Germany's population of third-country nationals far exceeds those of other member states, comprising 45 per cent of the EU total. (12) Thus the contemporary position of Germany ought to provide a telling framework for determining the salience of nationality in the provision of membership rights and the status between EU-citizens and third-country residents.

   In addition to current dynamics that highlight its central importance in assessing transformations in citizenship, further historical reasons suggest that Germany is a meaningful context for appraising claims regarding the growing potential and meaning of forms of post-national status, rights, and identity. In particular, Germany's past history of restrictive approaches toward naturalization and nationality, followed by a relatively recent transformation of such policies, point to the significance of Germany as a site for the emergence of post-national trends. Rogers Brubaker's 1992 path-breaking study of immigration and nationalism influentially characterized Germany as exemplifying an ethno-cultural and differentialist conception of nationhood and citizenship, one grounded in "habits of national self-understanding that were deeply rooted in the national past." (13) According to Brubaker, Germany's restrictive approach to both citizenship and naturalization have been fundamentally related to conceptions of descent and ethno-cultural membership, as embodied most definitively by the central place of jus sanguinis in German nationality law. (14) While the continued...