The Claim to Autonomous Determination of Norms and the Preliminary Effects of European Law: The Example of Turkish Law regarding Foreign Residency and Citizenship
Abstract
The idea of creating legal spaces crossing over the boundaries of national states emerged before globalization. At the same time, the idea has been increasingly favored by both ever-stronger interlinkage of economic relations and intensifying cultural exchange. As a dynamic supra-national legal space, the European Union is historically unique in its level of integration—never before have national states renounced their sovereign rights in favor of supranational institutions to this extent. Meanwhile the European process of harmonization has come to take in nearly all legally regulated areas of life, so that the creation of norms in member states is practically impossible without either integrating or at least considering European regulations; for this reason, the development of the European Union serves particularly well as a viewing field for processes of normative genesis.
While in the member states of the EU this legislative process unfolds gradually and step by step, candidates for membership have to see to incorporation of missing parts of the European legal corpus, the so called acquis communautaire, into their own legal system in the course of the entry negotiations. They only create the conditions for integration into the harmonized European legal space in this manner. We can hardly speak of autonomous genesis of norms in this context. Rather, what is manifest here is an extensive reconstruction of shared legal regulations, although when it comes to their conversion into national law the candidates retain a certain amount of leeway.
The situation is different for those states (still) not possessing candidate status but which have made entry into the EU one of their political goals. It is the case that in their legislative activity such states are essentially free from external pressure; nevertheless, in order to improve their chances of future entry, they partially orient this activity around European legal regulations.
In the framework of the project on “The Genesis of Norms under Globalization,” this study will consider the example of Turkish law regarding foreign residency and citizenship, in order to explore this “preliminary normative effect” of European law, as played out in its location beyond the EU’s borders and the circle of candidates for entry to the community.
Until now this legal area has not been adequately scrutinized; nevertheless it belongs to the classical core of sovereignty by the nation state. For its laws and regulations determine who is allowed to set up residence in the state’s territory and who is allowed to become part of the national entity. Until now, aside from laws governing asylum and the granting of visas, the realm of immigration has not been an element of European competence; however, national regulations must still correspond to the basic principles of the Union (e.g. Article 6 Treaty on European Union).
Over recent years, the laws governing both foreign residency and citizenship have been the object of thorough reform in Turkey. The earlier Article 7 of Turkish citizenship law can here serve as an example: as the law stood, although the foreign wives of Turkish citizenship had the right to immediate citizenship, this was not the case for foreign husbands of Turkish women. Since this regulation did not stand in harmony with the goal of equality between men and women and an absence of discrimination, it was cancelled with the reform of the citizenship law in 2003 (see Article 3, part 2 und Article 13 EC; Article 6, part 2 EU Constitutional Treaty in conjunction with Article 23 Charter of Fundamental Rights).
In this way self-chosen limitations on norm-setting autonomy can be a catalyst for normative changes shaping the society. The extent to which this is actually the case in Turkey and which stages of preliminary normative effect have particular impact on the process of normative genesis will be examined in the course of this study.
Publication
Kay Hailbronner, Bilgin Tiryakioğlu, Esin Küçük, Katja Schneider (eds.): Vatandaşlık, Göç, Mülteci ve Yabancılar Hukukundaki Güncel Gelişmeler. [Current Developments in Citizenship, Immigration, Refugee Law and Law of Foreigners] Ankara 2010 (Türkiye Barolar Birliği Yayınları: 175).
in there:
Kay Hailbronner: Die Entwicklung des deutschen Staatsangehörigkeitsrechts von der deutschen Staatsangehörigkeitsreformgesetzgebung 1999 bis zum Staatsangehörigkeitsänderungsgesetz vom 5. Februar 2009, 5-24.
Katja Schneider: Das deutsche Staatsangehörigkeitsgesetz und das Europäische Übereinkommen über die Staatsangehörigkeit, 117-142.