The concept of nation has a strong connection with the identity. The identity can deter-mine the roots and the picture of the nation as the constitution-makers saw it at the mo-ment of creating the constitution.
As Majtényi wrote: “(…) if we accept that there is a need for creating a sense of be-longing in a political community, then the attempts for the creation inevitably must be connected to the nation.”50 According to Gary J. Jacobsohn, several constitutions point to the identity, albeit it will be gained through experience.51 The text itself has the possibility, albeit the parallel practice will be needed. The constitutional text can be a starting point.52 The understanding and types of identity has become a favored topic of interest in the last few years, especially in connection with relationship between the EU and the Member States. The definition of the identity itself can become a center of dispute. If one adds the question of which type of identity to analyze, several new questions will emerge. The first what can be examined is the types of identity. One can mention the constitutional identity, the national identity, the constitutional national identity and the identity of the Member States. The definitions are not crystal clear,53 as the relevant American and European ideas diverge, although the differences converge to each other due to the migration of the con-stitutional ideas. In Tribl’s opinion: “while the national identity’s subject is the political nation, the subject of the constitutional identity is the constitutional system itself.”54 The constitutional identity can be seen as a sword and as a shield as well.55 What could be the scope of national identity and constitutional identity?
49 CDL-AD(2016)024 59.
50 Balázs MajTényi: Hol húzódnak a kisebbségvédelem határai (Nemzetértelmezések és a kisebbségek védelme) [Where are the Limits of Minority Protection? (Understandings of Nation and the Protection of Nationalities)] In: Regio Kisebbség, Politika, Társadalom. 2004/4, p. 4.
51 Gary J., jacoBSohn: The Formation of Constitutional Identites In: Tom ginSBurg – Rosalind dixon (eds.):
Comparative Constituional Law. Edward Elgar Publishing, 2011, p. 129.
52 jacoBSohn 2011. pp. 130-131.
53 Márton Sulyok: Értelem és érzelem vagy büszkeség és balítélet? Alkotmánybíráskodás és alkotmányos identitás. [Sense and Sensibility of Pride and Prejudice? Constitutional Jurisprudence and Constitutional Identity]. In: Fontes Juris, 2015/1, pp. 27–39.
54 Norbert Tribl: Az alkotmányos identitás fogalomrendszere jogelméleti megközelítésben. [The Conceptual System of Constitutional Identity in a Legal Theory Approach.]. In. Jogelméleti Szemle, 2018/1, p163.
55 Pietro faraguna: Constitutional Identity in the EU—A Shield or a Sword? In: German Law Journal, 2017/7, pp. 1627-1633.
There is no generally acknowledged opinion in this issue, the matrix is confusing, and the different peculiarities of the Member States also must be taken into consideration. The concept of identity in the EU has great significance for the Western Balkans, as in the process of joining the EU they must deal with the questions of sharing the sovereignty and how to protect it. Issues related to the sovereignty are sensitive and can easily cause conflicts. The constitutions of the Member States defined the shared sovereignty in quite colorful ways to protect as much as possible.
The identity became a central issue between the EU and the Member States in the ques-tion of sovereignty. The EU started to define the European identity: “they are determined to defend the principles of representative democracy, of the rule of law, of social justice
— which is the ultimate goal of economic progress — and of respect for human rights. All of these are fundamental elements of the European Identity.”.56 However, the concept has not developed, as “The argument that the EU is too diverse for a common constitutional identity has resurfaced at various stages of the European integration.”,57 and it evolved to a dialogue between the Member States and the EU.
The TEU mentions the national identity,58 and the common values of the Member States.59 The common values of the Members States could cover the areas of the identity, as the protected values of the national level could be safeguarded on the international and re-gional level as well. The Treaty of Lisbon created a wave of decisions from the Consti-tutional Courts in this question, with the leading role of the Federal ConstiConsti-tutional Court of Germany.60
The Constitutional Courts of the Member States have a significant role in defining the identity of a state, as the generally vague mentions in the constitutional texts leave a wide range for interpretation. Some Constitutional Courts are active in this role of starting to find the principles of the identity of the state.61 Other Constitutional Courts decided to choose another path. As an example, the French practice treats the issue as a technical one.62
56 Declaration on European Identity (Copenhagen, 14 December 1973)
57 Pola ceBulak: European Constitutional Identity “Inside Out”: Inherent Risks of the Pluralist Structure.
In: Croatian Yearbook of European Law and Policy, 2012, p. 6.
58 Consolidated version of the Treaty on European Union „Article 4. 2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
59 Consolidated version of the Treaty on European Union „Article 2 The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, includ-ing the rights of persons belonginclud-ing to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
60 Leonard f. M. BeSSelink: Constitutional Identity Before and After Lisbon. In: Utrecht Law Review, 2010/3 61 Constitutional Court of the Czech Republic, Federal Constitutional Court of Germany
62 Réka SoMMSich: Az alkotmányos identitás a francia és a belga alkotmánybírósági gyakorlatban. [Consti-tutional Identity in the Jurisprudence of the French and Belgian Constituional Courts]. In: Alkotmánybírósági Szemle, 2018/1, p. 14.
The Constitutional Courts of the Visegrad 4 states – Czech Republic, Hungary, Poland and Slovakia – decided to use this concept to support their national values and system against the European values and system. Every Constitutional Court of the V4 countries interprets the concept with ethnocultural attributes.63 Moreover, they use it as a limit to the EU powers by stating the supremacy of the constitution.64 The example of the Federal Constitutional Court of Germany is applied by the V4 countries, albeit they deter from the German path: the aim is not to strengthen the level of protection of human rights and democratic values but to protect the national system against the EU level in some cases.65 The controversial question still remains, albeit the PSPP decision of the Federal Constitu-tional Court of Germany from May 2020 could be seen as a milestone.66
If one examines the use of the expression ‘identity’ in the constitution of the Western Balkans, the first element to recognize is that the constitution of Bosnia and Hercegovina does not contain the expression. This is the only constitution in the region without using it. As it was mentioned above, the constitution of Bosnia and Hercegovina adopted by special means and that left quite an imprint on the text. As the identity is scarce from the constitution, the identity-forming powers were not part of the creation, and the absence of the typical nation-defining and common identity-creating voices makes this constitution differ from others also in this question.
The constitution of Albania mentions the national identity of Albania in the preamble, in Article 3 as part of the basic principles, and the identity of the national minorities are also mentioned in Article 20. The Albanian constitution stated that “(…) minorities are the bases of this state, which has the duty of respecting and protecting them”67, and gives individual and collective rights to them. The national minorities have constitutional rights, and the state has obligation to respect and protect them. The protection of national minorities is a basic principle of Albania.
The constitution of Croatia uses the expression of identity only once, when the “The millennial national identity of the Croatian nation”68 is mentioned in the preamble. As the national identity itself, the concept of nation is also not clear enough in the text of the constitution. The preamble of the Croatian constitution has very extensive wording, with great detail to the events of the glorious past.
The preamble of a constitution could have different purposes. The solemn style of a preamble aims to show the significance of the entire document, and it could also have
63 Kriszta kovácS: The Rise of an Ethnocultural Constitutional Identity in the Jurisprudence of the East Central European Courts. In: German Law Journal, Vol. 18 No. 07 (2017), p. 1716.
64 kovácS 2017, p. 1718.
65 kovácS 2017, pp. 1719-1720.
66 Márton Sulyok –Norbert TriBl: „A gazda bekeríti házát”? A Német Szövetségi Alkotmánybíróság PSPP döntésének jelentősége és az európai integrációért viselt alkotmányos felelősség realitása. [‘The master pulls a fence around his house’? The Significance of the PSPP Decision of the German Federal Constitutional Court and the Reality of Constitutional Responsibility for European Integration]. In: Európai Tükör, 2020/2, pp. 7-15.
67 Constitution of Albania, Article 3.
68 Constitution of Croatia, Preamble
normative meaning.69 In the case of Croatia, the aim is to highlight the great events of the past. The preamble almost always has a more symbolic purpose then legal, however, the Hungarian Fundamental Law gave normative power to the National Avowal, the pre-amble.70 This is a rare possibility for a preamble; generally their purpose is to create the proper environment for the constitutional text itself.
The Constitution of Kosovo protects the identity of the minorities71 and the “(…) nation-al, ethnic, culturnation-al, linguistic or religious identity” of the people,72 as they have a wide range of individual and collective rights guaranteed by the constitution itself.73
The Constitution of Montenegro provides for the identity of the minorities extensively as well.74
The Constitution of North Macedonia held the “the free expression of national identity”75 as a fundamental value of the constitution, as well as the “ethnic, cultural, linguistic and religious identity” is also protected.76 A special issue related to identity is the particular social security rights guarantee for the veterans who, among others, were “expelled and imprisoned for the ideas of the separate identity of the Macedonian people and of Mac-edonian statehood”.77
The constitution of Serbia protects the identity of the minorities as well78 and “(…) under-take efficient measures for enhancement of mutual respect, understanding and coopera-tion among all people living on its territory, regardless of their ethnic, cultural, linguistic or religious identity.”79 In my view, this sentence should provide for the protection of the national minorities as well.
The preamble of the Slovene Constitution states that the Slovenes established their na-tional identity and the “autochthonous Italian and Hungarian nana-tional communities and their members”80 can preserve their national identity.
Every constitution from the Western Balkans except the constitution of Bosnia and Her-cegovina declares the national identity or the identity of the minorities as an important principle of the constitutional system. The national identity of a nation and the national identity of national minorities both have significance in the understanding of a state’s
69 Márton Sulyok –László TrócSányi: Preambulum. In: András jakaB (ed.): Az Alkotmány kommentárja I.
[Commentary of the Constitution I.]. Századvég Kiadó, Budapest, 2009, pp. 90-91.
70 The Fundamental Law of Hungary Article R) „(3) The provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal contained therein and the achievements of our historic constitution.”
71 Constitution of Kosovo Article 57 72 Constitution of Kosovo Article 58 73 Constitution of Kosovo Article 59 74 Constitution of Montenegro Article 79 75 Constitution of North Macedonia Article 8 76 Constitution of North Macedonia Article 48 77 Constitution of North Macedonia Article 36 78 Constitution of Serbia Article 14
79 Constitution of Serbia Article 81 80 Constitution of Slovenia Article 64
operations. The states of the Western Balkans show the signs of caring about protecting the national minorities in the texts of their constitutions.