Thu. Dec 12th, 2019

Flock Brexit (Post-Truth Politics)

To my friends that have taken the time to read the previous posts,
To all of you who are curious about the wild ideas that I get and how realistic they may or may not be,
And to all of us who want to try and do something meaningful with our time,
Here goes nothing….

Birds of a feather flock together

It is appropriate that the saying above is often attributed to an English naturalist (William Turner), an English lexicographer (John Minsheu) and/or a translation of Plato’s Republic (an influential work of philosophy and political theory). The reason why I find it so appropriate for this is because calling this blog entry “flock Brexit” allows me to 1) make reference to the idea that “People of similar character, background, or taste tend to congregate or associate with one another” 2) use a phrase that has been supported by British and philosophically-oriented folks and 3) if you know me, you know that any linguistic/phonetic quirk or potential misunderstanding between “flock” and other ‘un-sophisticated’ terms is of course ‘purely coincidental’.
So with all of this in mind, let’s get to the point.

Perhaps I will [eventually] publish the posts that I drafted where I explain the whole story of how I got to this point, but the main timeline is as follows:
Back in March 2016, I made a couple phone calls and emails to experts who know more about law than I do such as Jan Klabbers and my professor of international law that now works at the United Nations in New York. Because of those calls, I decided to change the topic of my thesis. I had started out wanting to research Mazzini and the Young Italy revolutionary movement of the 1800s, but after plenty of research I decided I’d learned almost everything that I was truly curious about learning. So I figured I would rather find something more difficult and relevant to today’s day and age. Well, being the nutjob that I am, I started off with the wild and imaginary idea of “World Citizenship” (which has been in my idealistic little head for longer than I can remember). Childish, I know, but I just started asking myself “why not?“. This immediately took me to a more practical and “realistic” idea of “UN Citizenship” which then led me back to the abstract concept of “International Organization Citizenship”. If you follow the pattern/logic here, then you can see how I eventually landed in “Citizenship of the Union” more commonly known as “EU Citizenship”. After choosing to focus on that, I narrowed my research question to “How does ‘European Union Citizenship’ fit within the historical evolution of citizenship?” Rather than bore you with the whole topic and research that I was doing almost daily from June-September, let’s simply skip to the “practical” (as in ‘implementable’, not as in ‘easy to accomplish’) idea that came out of this: a chance to keep the European Union or at least its citizens together after Brexit.

Wild? Definitely. Daunting and “impossible”? Absolutely. But legitimately doable despite the challenges?
Well, that’s probably up to you, your sense of determination and how much you truly believe that actions speak louder than words. It seems as though in this post-truth world that we are now living in, some of you might get to decide rather than discover if my upcoming conclusions are true or not.

The Logic

I will admit that the root of this whole idea was an article written by one guy and his one opinion. For that reason, I would be tempted to simply admit that “Maybe I am wrong because I placed so much trust in the conclusions made by one guy… anyway, here’s the article, and I’ll let you be the judge of how wrong he is“. But when the author of the article is precisely the judge (i.e. the President of the Court of Justice of the European Union (ECJ/CJEU)), then it would be kiiiind of arrogant and naive for you to claim to be a better judge of EU law. All I did was build on his legal opinion and then researched how it might or may not work to make a real life difference, so let’s just trust his conclusions and try to apply/test them against the ‘real‘ world, shall we?

There are two very relevant and important conclusions to keep in mind here:

  1. “citizenship of the Union is intended to be the fundamental status of nationals of the Member States” (see, inter alia, cases: Grzelczyk, paragraph 31; Baumbast and R, paragraph 82; Garcia Avello, paragraph 22; Zhu and Chen, parag. 25; Rottmann, parag. 43; Zambrano, parag. 41, etc)
  2. Article 20 TFEU precludes national measures that have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union” (Rottmann, parag. 42; Zambrano, parag. 42; McCarthy, parag 47; Dereci, parag. 66)

Those are my two basic premises, and they’re very much supported by evidence. The Court [of Justice of the European Union] has stated, reiterated and emphasized these principles in various cases (go ahead and read the case law if you need more evidence, I already gave you some cases). If you’ve actually bothered to read and think about the article by Lenearts that I linked to above (which no offense, but I highly doubt, so here it is again), then you’ll notice that the more complicated issue has usually been establishing/determining whether in fact there is or isn’t a “deprivation effect” caused on an individual by a national decision. When does the national decision truly, legitimately or directly deprive/impede a citizen of/from his/her status or rights as EU citizen? At what point can the EU/ECJ step in in order to protect EU citizens even if the decision/action taking place is between a Member State and one of its own nationals? Well, fortunately, some cases are more black and white than others because they affect the status/rights of EU citizenship directly. But the key is: if the situation directly affects the status/rights written into the EU treaties (or secondary law in some cases), then it’s a matter of EU law/citizenship, not [only] nationality.

So the idea here is to apply this logic to Brexit.

I’m sure that plenty of skeptical people will argue that EU Citizenship isn’t “real” or that it doesn’t “actually do much” because it is immediately/directly tied/derived to/from Member State nationality. Well, if you are one of these people, I will suggest that you 1) please read about the topic of citizenship for three months after half a lifetime of questioning the meaning of [your own] ‘nationality’ 2) read about EU citizenship itself for another month or so [along with the actual treaties, regulations and case law] and finally 3) write a thesis about the whole thing in order to make sure that you can coherently explain whatever it is you ‘know’. But if you’d like to skip all that work or let someone else do it, then here you go! [Sorry for all the sarcasm there but] Hopefully you can trust me and the amount of research/thought that I’ve put into the issue rather than just ‘throwing it out there’. All I’m trying to say is that EU citizenship does have its own purpose and it holds specific powers/rights that are protected even against the will of national governments. But only around 2/5 Europeans feel informed about their rights as EU citizens (p. 6), so good luck trying to demand rights that most of us don’t even know about. It’s perhaps ironic that many Europeans do benefit from EU citizenship without even knowing that they do. If you are European and you don’t live in your country of nationality, then it is EU precisely citizenship that allows you to live and work wherever you are. In nutshell: No EU citizenship, no right to move and reside freely in another country without visas. Believe me when I say that this is not something you want to take for granted or risk losing (and if you’re British, you’re about to lose it unless you do something about it).

The Argument

Historically, nationality law has been under the sole and unique jurisdiction of nations. Just about everything from Article 6 of the 1997 European Convention on Nationality to Article 4 of the 2006 ILC Draft Articles on Diplomatic Protection will tell you that it is up to each individual Member/Nation State to determine who is a national, who is not, and under which rules this is to be decided. Ask any professional or expert and they will tell you something like “nationality is highly protected/coveted by countries and they refuse to give/budge any power to anyone on that matter.” Well, maybe, juuuust maybe they’ve left a tiny little gap unprotected in this massive fortified wall, and that‘s where this little Mexican would like to try and sneak in across the border. Besides, the concept of citizenship is much older than ‘nationality’ and nation-states, so it’s not surprising that a line can be drawn if you know how to do it.

As for external opinion, Jo Shaw is an expert on citizenship, and you can bet that I’ve read some of her work. One of her more relevant works for our purposes here is a joint analysis where she and other legal experts discuss precisely whether the EU has challenged Sovereignty of Nationaliy Law. Their answer back then [2011] was looking pretty good for my argument, and that was even before the Zambrano Case of 2011 was completely settled/published (not to mention some of the other cases that Lenaerts discusses in the article above). In case you didn’t look at the date of publication for the [Lenaerts] article that I keep raving on about, it was finalized in October 2015, so the conclusions are still very recent and relevant. Additionally, in the 12-minute phone call that I managed with him and despite the fact that he couldn’t hint/nudge towards any answers [because of his judicial position], he reminded me that I needed to stay up to date with cases settled in 2016 such as CS and Rendón Marin (which I’ve subsequently read). But Shaw’s article that I linked to at the start of this paragraph is also interesting because one of the arguments states precisely how important EU Citizenship can be in the grand scheme of things:

“It might seem a gross violation of international human rights law for a state to deport its own citizens, but in practice this has happened on a remarkably large scale since the Second World War, including in Member States of the EU such as Ireland and the United Kingdom. On this basis, EU citizenship would seem to provide a type of absolute protection against deportation outside the EU which national citizenship does not provide for children. Human rights advocates have unsurprisingly welcomed this development, but clearly it provides additional grist to the mill of those who argue that the Court of Justice has overstepped its legitimate bounds in relation to impacts upon national law and national sovereignty in cases such as Zambrano.” (p. 38, highlighted in link above).

Again, this is further evidence that EU citizenship and the ECJ can and already have taken measures that guarantee and protect the status/rights of EU citizens, even if/when Member States wish/seek otherwise. And if you need more reassurance or reason to believe that the rights granted by EU citizenship are not only worth protecting but also hold legal influence, then hopefully you are aware of the recent UK High Court Ruling. I have been very interested in following the results of this case because it is based on a similar premise as my argument. A lot of that case is built on the European Communities Act in the UK, and the rights that would be taken away from UK nationals (i.e. EU citizens) by Brexit. And if you’ve followed the case, then perhaps you know that it has been winning and it is now perhaps/almost guaranteed that the UK Parliament will get to vote on whether Brexit will actually take place or not (depending on the government’s current appeal). But months ago people simply assumed that Brexit was going to happen unconditionally, and it wasn’t until this legal case was brought up and decided that people began saying it was “obvious” that Parliament should/will get to vote on Brexit. Well, what I am saying is that no [risky] votes might be necessary and no rights need to be taken away if enough people stand up for Europe (which is a different [legal] question than standing for or against nationalism, by the way). Given the way EU citizenship has been created, developed and legislated/adjudicated, I truly believe that UK citizens can be made to keep their EU citizenship regardless of what “the UK” (whatever that means anymore) wants to do. Unfortunately, the only/best way to test what I believe is precisely by testing/trying it and legally I don’t even have the right to do that myself so I’m out of luck unless the people who “care” actually prove it (i.e. people who argue/post/share their opinions about the issue need to walk the walk).

Do you want more evidence that this is possible and I am not just talking crazy and EU citizenship could be a major thing? Ok then, here’s a proposal that was recently passed seeking Associate EU Citizenship for Brits after Brexit, another article about that same topic/proposal, and there’s also a recent article supporting the fact that “the ECJ has the ultimate authority on Article 50” (and not just EU Citizenship). So all we have to do is get this into their hands and I am pretty sure I know a few ways to do that. Finally, as a last bit of overkill, here’s an article from 2013 by a Professor of Law at University of Lancaster School of Law discussing what would/could happen with EU citizenship in the “rather extreme and maybe exceptional” scenario where the UK wants to leave the EU or Scotland wants to remain in it after leaving the UK (no joke, go to p.148). Among the hundreds of great quotes he very clearly concludes that “Given the fact that there exists some sort of relationship between the European Union and members of the EEA, it appears de facto possible that individuals who do not wish to join their member state’s downscaling in membership, could remain in a closer relationship with the European Union.”(p.173).

The more I run into these articles, the more I’m convinced that it’s time to actually get moving rather than talking/researching/debating, especially because “associate citizenship” [whatever that ends up being if it even passes] is not the same as full “EU citizenship” and the latter is already possessed by British citizens and protected by the EU/ECJ so not a lot has to change. But again, I don’t even have the legal right to pursue/test my own idea, so my hands are once again tied by the beauuutiful and timely concept from the 1700s called ‘nationality’. Therefore regardless of how convinced I am that this could/will work, and despite all the evidence which reassures me that this is at least worth pursuing, the only way this will take place is if you, my friends and peers who are EU citizens, take the initiative.

And what exactly could you do? Well, step one to take an initiative is exactly that: a citizens’ initiative.

Again, you don’t have to tell me how weak and powerless citizens’ initiatives are, or how many of them fail. I’ve done that research as well and I’m aware that, for one reason or another, these initiatives tend to fail because they don’t gather enough support or the Commission fails to act on  them. But we’ve never had Brexit before. We’ve never had a Member State decide to leave the union, much less such a prominent one like the UK. We’ve never had 17 million people vote to leave the Union and thereby take away the citizenship of 16 million who voted otherwise as well as plenty of others who did not or could not vote for whatever reason (sometimes very questionable/disturbing reasons). We’ve never had a citizens’ initiative that might be of interest to 16 million citizens of just one Member State and we’ve never been given one year rather than just one [voting] day to express pro-EU support with public signatures rather than secret votes. In other words: if a successful citizens’ initiative requires the collection of one million signatures over 12 months, how many of those 16 million who voted Remain in one day (technically) do you think we can reach in a full year? Of course there are technicalities and minimums that have to be reached in other Member States, but given the amount of British people outside the UK (1.3 million), the amount of non-British people in the UK (3.3 million… and most of which probably couldn’t even vote in the referendum unless they had dual citizenship) and the level of attention that will still be paid to this issue for the next few months, then perhaps it’s not so hard to imagine the minimum 13,500 signatures from Austria (where one university alone has 94,000 students) or 38,250 signatures from Poland [nationals] (given that there are an estimated 831,000 Polish-born citizens in the UK and they can sign as “Polish”).

The Decision

Aside from the referendum in Italy and the election in Austria [which will both take place this Sunday], there will also be other political decisions being made in France and Germany in 2017. All of that suggests that the European Union, whose main purpose was to end the frequent and bloody wars between neighbors after WWII, has a chance to become either more divided or united in its diversity. Yes, there seems to be a rise in nationalism, xenophobia, etc these days. Yes, Brexit and Trump’s election were partly/largely motivated by migration and plenty of other national elections in the EU will take advantage of fears and use them as an opportunity to raise capitalize on nationalist sentiments. But that’s exactly why those who are pro-EU and “pro-World” need to look for ways to fight back and help each other across borders and national lines. And that’s why a pan-European movement like a citizens’ initiative [which erases internal borders] might be the best legal and politically-feasible way to fight back against the potentially-racist, overly-nationalistic and destructively divisive rise of far-right movements. If some politicians want to use nationalist fear and populism to gather votes and weaken/dismantle the EU, then European citizens need to use hope and citizenship to gather signatures and strengthen/unite the EU and common European values. And let me remind you that I’m not even suggesting that you have to choose between being “European” or “patriotic”, I’m proving to you that you can be both. But given the way masses are being herded towards nationalism, the rest of us need to flock to protect a bigger, less close-minded and more 21st-Century idea that is Europe. Don’t tell me it’s idealistic. Don’t tell me it’s not possible. Don’t tell me it will take a lot. Just do it. Let’s go for it and see what happens. Brexit was seen as a longshot, Trump was seen as a joke, and now here I am saying “come on, let’s just give this thing a chance! It’s a lot more optimistic and focused on uniting a common ‘us’ rather than separating ‘ourselves’ from ‘them’ (the way Brexit/Trump won)”. I’d be more than willing to do it all alone if I could, but it’s precisely because of the crappy system that I am prevented from even trying, so I am not scared to admit that I need and 100% depend on you if I even want to register the idea.

Originally, this post contained another one of my usual condescending rants against politics, but someone close to me suggested that I remove it because I would only antagonize people. So I removed it. And I’m hoping that people will actually listen and act now. I can’t tell you how frustrating and infuriating it is to constantly observe that people care about issues but refuse to actually do something about them. No wonder 2016 is all about “post-truth” and everyone thinks “the world has gone to shit“…. people are more “political” than ever! These days we no longer act like we care, we act as if we care. But maybe it’s time we stop acting/pretending and start acting/doing and reacting.

Again, I don’t want to write entire novels on here and this post is honestly not very long for my taste [especially given that this is barely scratching the tip of the iceberg]. I’ve looked into this idea for months, and I’ve addressed multiple flaws and rebuttals that people keep bringing up, but at some point we need to stop arguing/debating and start agreeing/doing, especially because things take time to register, etc and the clock is ticking. So I am going to cut this off now that I’ve explained the premises and core of the idea and I will explain more details in the next post. I know the suggestion of a citizens’ initiative might sound weak and powerless but it honestly just depends precisely on the initiative of the citizens, the strength of their/our determination, and their/our reaction to adversity. In the most obvious and cliche of formulations: the “will of the people” is nothing more than the “citizens’ will/willingness to do something” and “where there’s a will, there’s a way” so a citizens’ initiative will be what we make of it. Well, why not give this citizens’ initiative a shot? Why not just go for it and gain the opportunity to tell me that I’m a naive and idealistic idiot after it doesn’t work out? What do we/you have [left] to lose? National “unity” and unpaid/meaningless jobs/internships? The chance for WWIII to break out and the opportunity for ‘us’ to ‘win’ it and make ‘national’ history?

Personally, I think it’s about time “we, the people” try something different. If you’re fine with the lunacy of letting dirt and blood dictate who “we” are from birth, then by all means move along passively accepting those ideals. But I’m from the 21st Century and I think there’s much more to being/becoming a citizen than metaphysical inheritance. I’ve put enough research and effort to come to the conclusion that this is something worth pursuing/doing rather than just sitting there doing nothing or endlessly-debating. But I can’t do a damn thing about it despite how much I’d like to, so it’s high time that all of you who are “educated and politically-conscious/involved” decide if you’re all talk and no game or if you want to at least try to prove to ‘representatives’ [and the masses being herded to vote for them/Brexit/Trump] that you’re not a mere pawn and that “losing an election” is not a game.

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