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Laws of return: diasporas as part of the state community

Jonathan Edelstein, also known as the Head Heeb has an interesting post that I missed the first time around. Anyway it is called

Laws of return: diasporas as part of the state community

Yes, it is a mouthful but it gives all sorts of interesting comments and information about diasporas and the laws of return relative to individual countries.

Here is a chunk for your consumption, but I do encourage you to read the whole thing:

"The existence of a homeland ideology necessarily implies a connection between the population residing in the homeland and their coethnics regarding abroad. This connection, however, may be expressed in terms of descent, cultural affinity or a combination of the two. The Serbian nationality law, for instance, defines the national diaspora purely in terms of descent from an ethnic Serbian emigrant. In contrast, Spain grants an immigration preference to Sephardic Jews and citizens of former Spanish colonies, thus defining its overseas population in terms of language and cultural heritage rather than ethnic origin. Still other countries such as Croatia and Bulgaria combine these requirements, permitting members of the diaspora to obtain citizenship upon proof of descent together with evidence of affiliation to the national culture.

Two cases merit special mention. The Israeli law of return, which is often described as creating a homeland based on blood kinship, actually belongs as much in the cultural as the ethnic category because it is open to people who are Jews by conversion as well as by belief. The complicating factor is that entry to the cultural group is mediated through religious affiliation, thus empowering religious authorities to decide who belongs to the Jewish cultural group and potentially excluding those with an affinity toward secular Jewish culture but not Judaism. Likewise, German immigration law, which once entitled ethnic Ostdeutsch to virtually automatic citizenship, has trended in recent years toward requiring language skills and proof of cultural attachment in addition to German descent.

The second axis, that of necessity, requires a diaspora of significant size as a threshold, but can also arise from several considerations. One such consideration exists where the national diaspora is either currently or historically persecuted, thus creating a presumptive need for protection. Another is where recent border changes have left a large coethnic population outside national frontiers, a factor that very likely explains the unusual prevalence of laws of return in Balkan and post-Soviet states. Finally, necessity may arise where, as in many post-Communist countries, a large exile population exists which was stripped of citizenship by a discredited government.

Countries that score highly on both the ideological and necessity axes are likely to have strong laws of return. This is evidenced, for instance, by the laws of Israel, Armenia and Bulgaria, all of which provide a virtually absolute entitlement to nationality and which are based on both a conception of the state as homeland and the existence of a vulnerable diaspora. One might expect, based on the same logic, that any future Palestinian, Chechen or Kurdish state would enact a similarly strong law in short order. Indeed, the draft Palestinian constitution of 2003, which is the presumptive foundation of a future state, already defines the Palestinian nation to include the descendants of refugees and protects them from deprivation of citizenship rights.

In countries that score highly on one axis but not the other - i.e., homeland states without diasporas in urgent need of protection, or vice versa - laws of return are likely to be less absolute, and to attach terms and conditions to coethnics' applications for nationality. These restrictions generally take one or more of four forms:

  • Limitation on the number of generations that can claim citizenship by descent. Such limitations, as in Ireland and Slovenia, usually require that applicants for nationality have at least one citizen grandparent, although there are sometimes mechanisms by which the right can be passed on to a fourth generation.
  • Limitation on the particular coethnic communities that can obtain naturalization, as in the Russian Federation where immigration preferences are limited to former Soviet passport holders rather than ethnic Russians living in the West.
  • Immigration preferences rather than an absolute entitlement to citizenship. Countries such as Hungary and Spain, for instance, might reduce or waive waiting periods or financial requirements, but reserve the right to deny applications for residence on a discretionary basis.
  • Creation of a second-class diaspora citizenship that confers the right to live, work and study in the country but not political rights. This type of partial nationality is largely a creation of the past decade and currently exists in India, Slovakia and South Korea, with a similar proposal currently being tabled in Lebanon.

The case of India is a particularly interesting one in this regard. India has a large and far-flung diaspora that, in many cases, has been subject to persecution. Nevertheless, India has historically not regarded itself as an ethnic state. Instead, it is a huge and diverse country with many cultural, linguistic and ethnic groups, only some of which have a large presence in the diaspora. As such, during the Congress Party era, India made no special provision for diasporic immigration."