1. INTRODUCTION
In the interstices of international law, quite a number of states have developed strategies to reach out to and engage with their diasporic populations or ethnonational kin outside of their borders who are not their citizens but citizens of the state in which they habitually reside. Some states even provide for that kind of policy in their Constitutions. Some states grant preferential treatment and special rights to “kin-foreigners.”Footnote 1 Bauböck has coined the term “ethnizenship” to capture that kind of practice.Footnote 2 In practices of ethnizenship and various other strategies of engagement with kin-foreigners, we detect the creation of a transnational nationhood that appears to be at odds with the organizing principle of the Westphalian international order based on the segmentation of the world population into territorially bounded nation-states, where the nation and the state are believed to coincide with each other and there is little room for a national membership separate from state citizenship.
This dominant logic of the nation-state is both an ideology that conceals the reality of widespread mismatches between the nation and the state and a real source of dynamics towards their congruence. Likewise, the decoupling of the nation and the state is an empirical fact that one finds in many parts of the present world and, at least for some, a counter-strategy against the project of modern nation-statehood. Over the years, Asian law and society scholars have sensitized themselves to problems arising from the intricate nexus between nation and state. At the 2016 Asian Law and Society Association (ALSA) Annual Meeting in Singapore, Hiroshi Fukurai presented a talk on “Nation v. State: Fourth World Approaches to International Law (FWAIL) and the Search for the Sovereignty and Autonomy of Okinawans in Asia and the World.” By opposing the nation and the state, Fukurai challenged the suppression of the identities, rights, and voices of national minorities and indigenous peoples by the state appropriating the name “nation.” He proposed to give the name “nation” and the concomitant right to self-determination back to those oppressed communities and to divorce the nation from the state so that the state could not override in the name of the nation the identities and autonomy of the multiple nations that had been forcibly subjected to the domination of the modern nation-state. At the 2017 Law and Society Association Annual Meeting, I joined Fukurai in organizing a panel with the title “Nation v. State: Diaspora, Citizenship, and Indigeneity in Search for a New International Legal Order,” followed by another occasion of collaboration at ALSA 2017 in Hsinchu, Taiwan, in a panel on Indigenous Law. The phrase “Nation v. State” best shows Fukurai’s and my common interest in debunking the myth of congruence between nation and state, but he and I have addressed radically different sides of the decoupling of the nation from the state. While Fukurai’s interest lies in the revolt of indigenous populations against states that insist on the coincidence between the Staatsvolk, citizenry, and the nation, I problematize the strategies of states for reaching out to co-ethnics or diasporas beyond their jurisdiction in the name of the nation.Footnote 3 The last of the panels that we collaborated on—“Constitutionalizing Transnational Nationhood, Cross-Border Connectivity, and National Identity” at ALSA 2018 held in Gold Coast, Australia—reiterated our respective concerns with the two different sides of the Nation v. State agenda. The present article is a revised version of my paper presented at ALSA 2018.Footnote 4
This article begins by canvassing provisions in national Constitutions in Europe and Asia that provide grounds for policies of engagement with non-citizen members of the nation beyond the state boundaries.Footnote 5 Readers may find that there are a larger number of such cases than imagined. Understandably, many of those cases come from Eastern Europe and the former Soviet Union, where the erstwhile suppressed concern for ethnonational kin beyond the borders resurfaced in the wake of the fall of communism and the emergence of new states out of socialist federations. The succeeding section will explore diverse modes of engagement. One prominent mode is to create a special category of kin-foreigners and grant them a preferential status—ethnizenship as mentioned. The section will come up with an overview of the diverse forms of ethnizenship and preferential treatment of kin-foreigners. The legality and legitimacy of the diverse modes of engagement will be discussed in the section that follows. Recognizing the deficiency of established norms, the study examines the principles laid down by the Venice Commission of the Council of Europe in respect of Hungary’s Act LXII of 2001 on Hungarians Living in Neighbouring Countries (2001. évi LXII. törvény a szomszédos államokban élő magyarokról), better known as the Hungarian Status Law, and looks into some additional criteria. The discussion will show what factors make some cases problematic and others acceptable, and highlight the political contingency of the legality, let alone legitimacy, of the transnational nationhood strategies.
The issues addressed in this article have been less explored than many other issues in citizenship studies. Nevertheless, the study builds upon a number of pioneering studies of assorted but related topics. Those studies include discussions of constitutional nationalisms in Eastern Europe, examinations of “status laws” and ethnic citizenship regimes, and inquiries into diaspora-engagement strategies and transnationalisms from above.Footnote 6 In addition to providing updated information, this study contributes by widening the scope of comparison to bring European-status laws targeting kin-minorities and both European and Asian cases of diaspora-engagement law and policy together in a single article, whereas, in much of the existing literature, the historically rooted homeland nationalisms of European kin-states and the transnational strategies of migrant-sending countries have tended to be treated by separate studies as if they are unrelated realities.Footnote 7
2. CONSTITUTIONAL PROVISIONS ON TRANS-BORDER NATIONHOOD
Article 2(2) of the Constitution of the Republic of Korea provides that “it shall be the duty of the State to protect citizens residing abroad as prescribed by law.”Footnote 8 The Constitutions of many countries contain similar provisions. While such a provision can be used as a ground for the trans-border exercise of power in the name of protecting its external citizens, it does not sound at variance with the existing norm that confines the state’s care to its citizenry. By contrast, some Constitutions express the state’s concern with the members of the “nation” outside of its borders who are not citizens of the state. Some do so by encompassing citizens and non-citizen co-nationals in a single term signifying a nation or people.Footnote 9 Others do so by a separate clause or article alluding to people of the same ancestry or national belonging.Footnote 10 Constitutions referring to this kind of trans-border engagement are more widespread than one might imagine.Footnote 11
2.1 Israel and Germany
Some countries are well known for peculiar historical backgrounds and concomitantly distinctive notions of nation, which make their concern with ethnonational kin outside of their formal citizenry understandable. Israel is known for its ties with a powerful diaspora in Europe and North America, and what it does towards the Jewish diaspora is a prominent example of diaspora-engagement policy. While Israel does not have a single constitutional document and, therefore, may not fit into this group of examples, it has a Law of Return, which is a striking manifestation of a peculiar notion of nationhood that transcends territorial statehood.Footnote 12
Germany is known for many historical experiences that have arisen from a precarious relationship between the Staatsnation and the Kulturnation or Volksnation. From this background, Article 116(1) of the Basic Law provides for two kinds of Germans—German citizens and persons of German ethnic origin (deutscher Volkszugehörigkeit) who have been “admitted to the territory of the German Reich within the boundaries of 31 December 1937” as refugees or expellees. The latter Germans, often called Statusdeutsche, are not yet German citizens, but are potential citizens who enjoy most of the constitutional rights on a par with citizens by virtue of their German ethnic origin. This illustrates a separation between Staatsangehörigkeit (nationality qua citizenship) and Volkszugehörigkeit (national membership). The constitutional rule was put into practice through the Federal Expellees and Refugees Act (Bundesvertriebenen und Flüchtlingsgesetz) of 1953. Although the Statusdeutsche could enjoy the benefits and entitlements only after returning to the homeland as resettlers (Aussiedler) or late-resettlers (Spätaussiedler), the taxonomy itself had the trans-border effect of creating a category of Volksdeutsche outside of the homeland. Germany also reaches out, and provides cultural supports, to Volksdeutsche outside of the current and past German territory, such as those in Central Asia. The Basic Law does not stipulate for this policy of diaspora support.Footnote 13
2.2 East-Central Europe
Unlike the German Basic Law, the Constitutions of many European states do provide for the state’s duty to support co-ethnics outside of the territory. Those Constitutions are concentrated in former communist countries in Eastern Europe and some parts of Eurasia. Hungary is a representative case. Its present Constitution was promulgated in 2011 and last amended in 2018. Its preamble says: “We, the Members of the Hungarian Nation, at the beginning of the new millennium, with a sense of responsibility for every Hungarian, hereby proclaim the following.” Article D of the Hungarian Constitution is the most extensive provision on the nation and national members outside of the borders among all such constitutional provisions. The article says:
Bearing in mind that there is one single Hungarian nation that belongs together, Hungary bears responsibility for the fate of Hungarians living beyond its borders, facilitates the survival and development of their communities, supports their efforts to preserve their Hungarian identity, the effective use of their individual and collective rights, the establishment of their community self-governments, and their prosperity in their native lands, and promotes their cooperation with each other and with Hungary.
Hungary’s tension with Romania due to its engagement with Magyars in Transylvania is well known. Romania also provides for the duty to support co-ethnics, but in a milder way and with emphasis on respect for the law of the country of which the co-ethnics are citizens. Article 7 of the Romanian Constitution of 1991 says:
The state supports the strengthening of links with Romanians outside the country’s borders and works for the preservation, development, and expression of their ethnic, cultural, linguistic, and religious identity, by respecting the legislation of the state of which they are citizens.
Another country that has tension with Hungary because of the latter’s nemzetpolitika (nation policy) is Slovakia, whose Constitution also provides for a duty to support: “The Slovak Republic supports the national awareness and cultural identity of the Slovaks living abroad; it supports their institutions established to achieve this purpose and their relations with the mother country” (Article 7A).
The Polish Constitution of 1997 refers to “compatriots” (rodakami) in its preamble—“bound in community with our compatriots dispersed throughout the world.” It also provides for a duty to support: “The Republic of Poland shall provide assistance to Poles living abroad to maintain their links with the national cultural heritage” (Article 6(2)).
The Albanian Constitution of 1998 also contains concern for Albanians living outside of the borders. Its Article 8 has two paragraphs in that respect:
(1) The Republic of Albania protects the national rights of the Albanian people who live outside its borders; and
(3) The Republic of Albania assures assistance for Albanians who live and work abroad in order to preserve and develop their ties with the national cultural inheritance.
While some accuse Article 8(3) of being ultra-nationalistic,Footnote 14 it has rarely been criticized by the international community. This is probably thanks to Albania’s successful non-interventionism, without which the country would have been drawn into ethnic conflicts in neighbouring countries, Yugoslavia in particular.Footnote 15
2.3 Former Yugoslav Republics
The former Yugoslav republics show how widespread kin-state commitments are in the making of Constitutions. Serbia and Croatia were notorious for their ethnic politics involving co-ethnics in other republics of Yugoslavia in the 1990s and, hence, it would not sound too strange if their Constitutions contained some sort of provisions on the support of ethnonational kin outside of their territories. Much of the Yugoslav Wars can be attributed to Serbia’s ethnic hegemonism and the resistance of Serbs in other republics against the latter’s move towards independence.Footnote 16 The 1990 Constitution of the Republic of Serbia within the Socialist Federal Republic provided that “the Republic of Serbia shall maintain relations with the Serbs living outside the Republic of Serbia in order to preserve their national and cultural-historical identity.”Footnote 17 This Constitution was regarded as “civic,” but it reflected the newly kindled ethnonational concern for the large portion of the Serb population living outside of Serbia, alongside an intensifying ethnic politics illustrated by the abolition of the autonomy of Kosovo and Vojvodina.Footnote 18 The Republic of Serbia adopted a new Constitution in 2006, after the breakup of the State Union of Serbia and Montenegro. Its Article 13 stipulates that “the Republic of Serbia shall develop and promote relations of Serbs living abroad with the kin-state.”Footnote 19
The states that seceded from the Socialist Federal Republic of Yugoslavia had a greater preoccupation with trans-border ethnonational solidarity. Article 5 of the Constitution of Slovenia, the first country to secede and to make a Constitution (1991), says that the country “shall maintain concern for autochtonous Slovene national minorities in neighbouring countries and for Slovene emigrants and workers abroad and shall foster their contacts with the homeland.” The Constitution enunciates that “Slovenes not holding Slovene citizenship”—in other words, ethnic return migrants—“may enjoy special rights and privileges in Slovenia” and that “the nature and extent of such rights and privileges shall be regulated by law” (Article 5). The Slovenian experience is unique in that Slovenia’s socialist Constitution within the Socialist Federal Republic of Yugoslavia had, since 1974, contained a provision expressing “concern for autochtonous Slovene national minorities in neighbouring countries, whereas in most other Yugoslav cases trans-border ethnonational engagement was a postcommunist phenomenon.”Footnote 20
Croatia’s Constitution of 1991 expresses Croatia’s ethnonational preoccupation in a conspicuous fashion: “Parts of the Croatian nation in other states shall be guaranteed special concern and protection by the Republic of Croatia” (Article 10). That non-citizen co-ethnics are guaranteed “protection” by the kin-state has no parallel in other Constitutions. The preamble of the Constitution gives a historical account of Croatian nationhood, which constitutes the basis of the identity shared by the “parts of the Croatian nation in other states.”
The Republic of Macedonia also made its Constitution in 1991.Footnote 21 According to Article 49, “The Republic cares for the status and rights of those persons belonging to the Macedonian people in neighbouring countries, as well as Macedonian expatriates, assists their cultural development and promotes links with them.”
Bosnia-Herzegovina and Kosovo have no provision on ethnonational kin outside of the state, while their Constitutions provide for the protection of citizens abroad. The Republic of Montenegro’s Constitution of 2007 is unique in that it recognizes the right of “minority nations and national communities” within the state “to establish and maintain contacts with the citizens and associations outside of Montenegro, with whom they have common national and ethnic background, cultural and historic heritage, as well as religious beliefs” (Article 79(12)). It is opposite in nature to the other Constitutions in Eastern Europe introduced here. Instead of empowering the state to engage with the members of that state’s titular nation outside of its territory, it allows its minority national groups to forge ties with their kin-states, such as Serbs with Serbia.Footnote 22 This provision is not new. The Constitution of 1992, when Montenegro was a part of the Federal Republic of Yugoslavia, recognized the same right for the “members of the national and ethnic groups” on condition that the enjoyment of the right did not bring any detriment to Montenegro.Footnote 23 Interestingly, the overarching Federal Republic of Yugoslavia’s Constitution contained a similar provision:
Members of national minorities shall be guaranteed the right to establish and foster unhindered relations with conationals within the Republic of Yugoslavia and outside its borders … provided these relations are not detrimental to the Federal Republic of Yugoslavia or to a member republic.Footnote 24
The Federal Yugoslav and Montenegrin provisions had parallels with Article 2(5) of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992) and Article 17 of the Framework Convention for the Protection of National Minorities, both of which were adopted later than the Federal Yugoslav Constitution.
2.4 Former Soviet Republics
The former Soviet Union provides a smaller number of examples than the former Yugoslav federation. The Russian Federation only has a provision on citizens abroad (Article 61(2)), although it is extraordinarily proactive in trans-border engagement with the Russian diaspora in the near abroad. Ukraine’s Constitution, on the other hand, has the following provision: “Ukraine provides for the satisfaction of national and cultural, and linguistic needs of Ukrainians residing beyond the borders of the State” (Article 12).
The Armenian diaspora is known as the most typical case of diaspora, along with the Jewish. Yet its Constitution of 1995, the first after the breakup of the Soviet Union, did not contain any provision on Armenians abroad. A provision of that kind was first inserted in 2015. The English translation of the Armenian Constitution uses the term “diaspora”: “The Republic of Armenia shall carry out a policy aimed at developing comprehensive ties and preserving Armenianness with the Armenian Diaspora, and shall facilitate repatriation” (Article 19(1)). The Armenian government has a Ministry of Diaspora.
Among the Central Asian republics, only Tajikistan has such a provision. The last sentence of Article 11 of its Constitution says, “The State cooperates with compatriots [living] abroad.”
2.5 EU15
One might regard commitment to trans-border national solidarity as a characteristic feature of the ethnic nationalism of Eastern Europe as opposed to the civic concept of nation in Western Europe. Yet that kind of Manichean dichotomy of civic v. ethnic has been discredited.Footnote 25
Greece’s precarious geopolitical position and the complex ethnic make-up in neighbouring states have made Greece serious about diaspora policy. Article 108(1) of the Greek Constitution gives the state the following duty: “The State must take care for emigrant Greeks and for the maintenance of their ties with the Fatherland. The State shall also attend to the education, the social and professional advancement of Greeks working outside of the State.” While this provision has been in the Constitution since 1975, the following paragraph was added in 2001: “Law shall specify matters relating to the organization, operation and competences of the Council of Hellenes Abroad, whose mission is the expression of all communities of Hellenes across the world” (Article 108(2)). This organization was founded in 1989.Footnote 26
Spain’s Article 11(3) empowers the state to create an Ibero community based on historical affinity, under which Spaniards may hold dual citizenship. Yet this is different from our main concern, the creation of non-citizen national members. Portugal is a better example in that respect, but its Constitution contains only a minimal reference to language and cultural education for emigrants: “Ensuring that emigrants’ children are taught the Portuguese language and enjoy access to Portuguese culture” (Article 74(2)).
Ireland’s commitment to the Irish diaspora is inscribed in Article 2 of the current Constitution, which replaced, following the Good Friday Agreement of 1998, the former article that set forth the territorial claim over the whole island of Ireland. The article manifests the two sides of the Irish transnational nation—territoriality and descent. It defines the Irish nation as a territorial community: “It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation.” The Irish citizenry has been moulded out of this territorial nation: “That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland.” While the Irish nation is basically a community of citizens, the same provision refers to a trans-border Irish people regardless of citizenship: “the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.”
2.6 Asia
A few cases are found in Asia. While China is looked upon as an exemplar of proactive diaspora policy, it is a matter for debate whether the People’s Republic of China’s Constitution of 1982 provides a ground for engagement with huaren (overseas people of Chinese origin) and not only huaqiao (overseas Chinese nationals). Article 50 stipulates that “the People’s Republic of China protects the legitimate rights and interests of Chinese nationals residing abroad and protects the lawful rights and interests of returned overseas Chinese and of the family members of Chinese nationals residing abroad.” On the surface, the article seems to target huaqiao and their families. As will be discussed, many huaren without Chinese citizenship practically enjoy the special treatment provided to huaqiao.
China has had reason to be cautious not to appear to be reaching out to Chinese populations in other countries, Southeast Asia in particular, given tension between ethnic Chinese residents and the state or local populations.Footnote 27 Vietnam is free from that kind of concern. Vietnam’s commitment to Vietnamese abroad has had a constitutional expression from the outset. The state’s will to protect the rights and interests of Vietnamese abroad was set forth in the Democratic Republic of Vietnam’s Constitution of 1946 as amended in 1948 and that of 1959 (Article 36), and reiterated in Article 75 of the 1980 Constitution of the Socialist Republic of Vietnam.Footnote 28 While this was not accompanied by an active diaspora policy when diaspora-homeland relations were coloured by ideological division, those relations changed and real efforts for diaspora engagement began with the commencement in 1986 of doi moi—a process of economic reform.Footnote 29 The 1992 Constitution reflected a strengthened concern with the diaspora and the economic motive behind it. Its Article 25 said, “The State creates favourable conditions for Vietnamese residing abroad to invest in the country.” Article 75 of the 1980 Constitution remained:
The State shall protect the legitimate interests of Vietnamese people residing abroad. The State shall create the necessary conditions for Vietnamese residing abroad to maintain close ties with their families and native land and to contribute to national construction.Footnote 30
The 2001 revision further emphasized the place and role of the “transnational Vietnamese community” by adding that “Overseas Vietnamese make up a part of the Vietnamese nationalities community” in the same article as in the 1980 Constitution (Article 75).Footnote 31 The representatives of overseas Vietnamese were now included in the Vietnam Fatherland Front (Article 9).Footnote 32 The 2013 revision moved most parts of Article 75 to Article 18, which reads:
(1) Overseas Vietnamese make up an inseparable part of the Vietnamese nationalities community; and
(2) The Socialist Republic of Vietnam encourages and creates conditions for Vietnamese residing abroad to preserve the Vietnamese cultural identity, maintain close ties with their families and native land, and to contribute to the construction of the native land and the nation.
At the same time, it replaced the provision on the protection of the “interests of Vietnamese people residing abroad” with one that limits the state’s protection to the “citizen residing abroad” (Article 17(3)).
The Democratic People’s Republic of Korea (North Korea) differs from the Republic of Korea (South Korea) in that its Constitution makes reference to dongpo (co-ethnics) beyond gongmin (citizens, gungmin in South Korea): “The Democratic People’s Republic of Korea shall champion the democratic national rights of Koreans (joseon dongpo) overseas and their rights recognized by international law as well as their interests” (Article 15). The article was first inserted in 1972.Footnote 33 However, this seemingly strong resolve to champion the rights of co-ethnics abroad is not followed by such active a policy of engagement with non-citizen co-ethnics as that of South Korea. North Korea’s main targets when it exerted the greatest efforts of engagement were Koreans in Japan, so-called zainich Koreans, who were not Japanese citizens, while its solidarity with Koreans in Manchuria ceased to be a policy concern in the late 1950s as a result of China’s strenuous nationalizing campaign.Footnote 34 North Korea agreed not to reach out to Koreans in the Soviet Union, and has remained detached from the Korean diaspora in Central Asia.Footnote 35
India’s Constitution has an article on “persons of Indian origin residing outside India” (Article 8). Most of these people are the “older diaspora” who migrated from India to other British colonies between 1840 and 1930 as indentured labourers, commercial migrants, and their descendants.Footnote 36 The article, which recognizes such persons as citizens upon their registration, is one of the provisions that delimit the boundaries of the initial citizenry of India and not about what the state should do to forge or strengthen its ties with diasporic populations. Turkey has a large diaspora, but its Constitution contains no reference to the relationship between the state and the diaspora.Footnote 37
3. MODES OF ENGAGEMENT
Constitutions that imagine or create a transnational nation differ in the depth and breadth of commitment and the mode of engagement. While many of those Constitutions express a general aspiration to maintain ties with the diaspora or co-ethnics, or impose on the state a mild duty to give them cultural support, some are quite obtrusive. However, a strong constitutional commitment does not necessarily lead to a proactive engagement policy, nor is it a prerequisite for active engagement.
3.1 Constitutional Commitments
Constitutions with strongest commitment to trans-border ethnonational solidarity are concentrated in Eastern Europe and the former Yugoslav federation in particular. In the wake of Constitution-makings by seceding states, the anthropologist Robert Hayden specified the nation v. state character of the situation in the following terms: “The political definition of the nation-state in the modern era has been territorial sovereignty, while the political essence of the nation-state is national sovereignty.”Footnote 38 While he underscored the vehement nationalizing campaigns by the new states within their territories, he observed formidable ethnonational mobilizations outside of borders, including the anomalous scene of Croats without Yugoslav or Croat citizenship voting in Croatian elections in 1990 and 1992.Footnote 39 Croatia’s constitutional commitment to “parts of the Croatian nation in other states” comes from this background of ethnic politics. Hayden referred to that Constitution as a paradigm example of “constitutional nationalism.”
Now the Croatian Constitution draws less international criticism than Hungary’s. When Hungary decided to adopt the present Constitution in 2011, the Venice Commission rebuked it on a number of counts. The Commission took issue with the trans-border ethnonational commitment set forth in the Constitution:
The Hungarian nation, in turn, also includes Hungarians living in other states. According to the Preamble, “we promise to preserve the intellectual and spiritual unity of our nation torn apart in the storms of the last century.” This statement implies obvious historical references and should be read in conjunction with Article D, establishing Hungary’s “responsibility for the fate of Hungarians living beyond its borders.” Such a wide understanding of the Hungarian nation and of Hungary’s responsibilities may hamper inter-State relations and create inter-ethnic tension.Footnote 40
The Venice Commission finds that the statement in Article D that “Hungary shall bear responsibility for the fate of Hungarians living beyond its borders” touches upon a very delicate problem of the sovereignty of states and, being a rather wide and not too precise formulation, might give reason to concerns. In particular, the Venice Commission finds unfortunate the use, in this context, of the term “responsibility.” This term may be interpreted as authorizing the Hungarian authorities to adopt decisions and take action abroad in favour of persons of Hungarian origin being citizens of other states and therefore lead to conflict of competences between Hungarian authorities and authorities of the country concerned.Footnote 41 Such action includes inter alia supporting the “establishment of their community self-governments” or “the assertion of their individual and collective rights.”
Hungary’s Constitution of 1989 had provided that “the Republic of Hungary bears a sense of responsibility for the fate of Hungarians living outside of its borders and shall promote and foster their relations with Hungary” (Article 6(3)). The spirit of this post-communist constitutional amendment developed into a political statement when the country’s first post-communist prime minister, József Antall, made his infamous remarks that he considered himself to be “the prime minister of 15 million Hungarians” instead of the 10 million people forming the population of the Hungarian Republic.Footnote 42
However, neither the presence of a text in a Constitution nor remarks of a head of government alone constitute a violation of international law. In its Opinion on the Constitution of Serbia, the Venice Commission commented that Article 1 of the Serbian Constitution that declared the Republic of Serbia as “a state of Serbian people” among others might be criticized for “emphasizing the ethnic character of the state” and yet stopped at saying that “no legal consequences should follow from it in practice.”Footnote 43 The opinion did not even mention Article 13, which stipulated for the kin-state’s duty to promote relations with Serbs living abroad.
3.2 Ethnizenship and Preferential Treatment of Kin-Foreigners
Then what kinds of real policy measures do states take in the execution of such constitutional commitments? Are such measures confined to countries that have supportive constitutional provisions? In rebuking Hungary’s new Constitution, the Venice Commission recalls its Report on the Preferential Treatment of National Minorities by Their Kin-State, which it issued in the wake of a controversy between Hungary and Romania and also between Hungary and Slovakia in 2001.Footnote 44 The dispute was ignited by the aforementioned Hungarian Status Law, which would grant preferential treatment to 2.5 million Magyars, or “persons of Hungarian ethnic origin,” in six neighbouring countries—Romania, Slovakia, Ukraine, Yugoslavia, Croatia, and Slovenia. Upon the request of Romania and Hungary, the Venice Commission undertook a comparative study of comparable laws in Europe to examine the compatibility of the Hungarian Status Law with international standards. The Venice Commission discovered nine cases of statute or administrative regulation, beginning with a 1979 Austrian law for the support of people of German- and Ladin-language affiliation in the Italian province of Bolzano. The other cases came from Bulgaria, Greece, Italy, Romania, Russia, Slovenia, and Slovakia.Footnote 45
All of the nine cases except the Austrian law were from the late 1990s and early 2000s. Yet there were some countries outside of Europe that had enacted laws targeting non-citizen co-ethnics or emigrants earlier than most of the European cases. Mexico, for example, amended its nationality law in 1993 to allow natural-born Mexicans who lost their nationality to enjoy property rights in parity with Mexican citizens.Footnote 46 In 1995, Turkey enacted the so-called Lex Rona, which was an amendment to the Nationality Act, and began to issue “pink cards” to foreigners of Turkish origin. With their pink cards, kin-foreigners are entitled to national treatment in landownership, labour-market access, and other areas of economic life. The pink card is now called the “blue card.”Footnote 47 In 1999, India introduced the Persons of Indian Origin (PIO) scheme to treat foreign citizens of Indian origin on a par with non-resident Indians (NRIs).Footnote 48 In the same year, South Korea enacted its Act on the Immigration and Legal Status of Overseas Koreans, better known as the Overseas Koreans Act, after some legislative attempts since 1997, the year when Slovakia enacted its Law on Expatriate Slovaks.Footnote 49
When I interviewed Kim Joon Gyu, the Ministry of Justice official who headed the team that drafted the Overseas Koreans Act (and who later became Prosecutor-General), Kim recounted that the Act was a pure invention of the drafters.Footnote 50 Kim and his team believed that Korea was the first country to invent that kind of special status—“coethnics of foreign nationality (citizenship)”—for non-citizen co-ethnics, and drafted the law without any model to turn to.Footnote 51 This is not strange, since the world commonly lacked knowledge of such legislation until the Venice Commission issued its report in 2001.Footnote 52
Since then, some other countries in Eastern Europe have introduced similar legislation. Ukraine enacted the Law on the Status of Foreign Ukrainians in 2004 and Poland passed the Act on the Polish Ethnicity Card in 2007.Footnote 53 In 2009, the Republic of Serbia adopted a Law on Diaspora and Serbs in the Region.Footnote 54 While Slovenia was included in the Venice Commission Report of 2001, it only had a National Assembly resolution on cultural supports for autochtonous national minorities. In 2006, the country came to have an extensive statute—the Act Regulating Relations between the Republic of Slovenia and Slovenians Abroad—which embraces all Slovene kin-foreigners in the world.Footnote 55 In 2004, Romania drafted a law to extend rights to individual “persons of Romanian ethnic origin” that would have greatly changed the existing system, which was to treat Romanian communities and not individuals.Footnote 56 Some countries have changed their existing laws. Slovakia enacted the Act on Slovaks Living Abroad in 2005 to replace its 1997 law.Footnote 57 Greece has subsequently taken a stream of legislative and administrative measures.Footnote 58 Russia amended its Federal Law on State Policy in Respect of Compatriots Abroad eight times until 2013.Footnote 59 Hungary amended its Status Law in 2003 in line with exhortations from European institutions and with a view to avoiding further confrontation with neighbouring countries.Footnote 60
The utility of the Hungarian Status Law diminished because four of the six countries whose Hungarian minorities were the beneficiaries of the Status Law acceded to the European Union and, as a result, the members of the minorities could enjoy the free movement of persons along with the other citizens of those countries. Furthermore, the Nationality Act as amended in 2010 allows the “remote” naturalization of persons of Hungarian ethnic origin in neighbouring countries and their possession of dual citizenship.Footnote 61 Nevertheless, the Hungarian Status Law of 2001 is still heralded as the most prominent case of legislation for preferential treatment of kin-foreigners.Footnote 62 The name of the law has even become a generic term—status laws—and the spread of such legislation is described as the “status law syndrome.”Footnote 63
As mentioned, Bauböck coined the term “ethnizenship” to denote the kind of status created by such legislation as the Hungarian Status Law. The key feature of ethnizenship that Bauböck has in mind in defining the term is the granting of “an external quasi-citizenship” by a kin-state to the members of minorities living outside of the country “on the basis of ethnic descent and common ethnicity.”Footnote 64 I, however, suggest that we use the term ethnizenship and conceive the “kin” element of the kin-state and target groups more loosely to accommodate the variation among the laws and policies for transnational engagement with non-citizen emigrants, expatriates, diaspora members, co-ethnics, or co-nationals. For descent is not the only basis on which special status is given and not all status laws target kin-minorities only. Since, in many cases, the special status is enjoyed when the person is in the kin-state, I would redefine ethnizenship as “a preferential status given by a state to non-citizens in or from other states by reason of ethnic or national affinity” (emphasis added). South Korea’s co-ethnics of foreign nationality, Turkey’s blue-card holders, and India’s PIO and Overseas Citizens of India (OCI) are good examples of ethnizens defined in this way.Footnote 65 Amid increasing interest, ethnizenship models have the potential of diffusion to other countries in Asia.Footnote 66 Laws creating ethnizenship have also appeared outside of Europe and Asia. In 2002, Ethiopia introduced the status of “foreign nationals of Ethiopian origin.”Footnote 67 In 2014, Suriname adopted the Law Establishing the Status of Persons of Surinamese Origin (PSA Law).Footnote 68
Ethnizenship can be classified by reference to various criteria. Whether its creation is based on the Constitution is one of the criteria. Many countries whose Constitutions we have canvassed have actually implemented legislation or administrative measures to create ethnizenship. Yet a larger number of ethnizenship cases or cases of trans-border co-ethnic support do not have express constitutional grounds—Austria, Bulgaria, Italy, Russia, Turkey, India, Ethiopia, Suriname, and South Korea.
Ethnizenship can be grouped according to the way of defining the ethnizen—language affiliation (Austria), ethnic origin and culture (Bulgaria, Greece, Hungary, Slovakia, Slovenia, Serbia, Ukraine), geographic origin (India, Ukraine, Russia, Suriname), past citizenship (Russia, Turkey, India, Ethiopia, South Korea) or a mixture of some of those grounds. How to define the ethnizen has much to do with the nature of the national identity behind the policy of engagement.
The laws and policies of some countries target all members of the diaspora or ethnonational kin wherever they live. The other cases are only for co-ethnics or co-nationals in nearby countries. This element is indicative of the nature of the engagement strategy, together with the way the ethnizen is defined. Bulgaria, Slovakia, Ukraine, Turkey, Ethiopia, and Suriname belong to the first group and Austria, Greece, Hungary, and Poland the second group. Among the latter are countries that lost populations as a result of border changes pursuant to peace treaties, such as Austria and Hungary. Their policies are for kin-minorities separated from the kin-state without migration. As in Brubaker’s use of the term “accidental diaspora,” some apply the term “diaspora” to such groups of people as well.Footnote 69 Yet the two should be terminologically distinguished to increase the analytical utility of the concepts.
Some countries have separate schemes for all members of the diaspora and particular groups respectively either within the same law or by way of different laws. The Russian Federation’s Law on State Policy in Respect of Compatriots Abroad has separate provisions for compatriots in former USSR territories and those in other countries respectively. Slovenia’s 2006 law brings within its scope all Slovenians abroad, but some provisions only apply to emigrants while some others apply only to the members of autochtonous Slovenian minorities in neighbouring countries.Footnote 70 The Serbian law of 2009 defines the target groups as the “diaspora” including the “members of the Serbian people who emigrated from the territory of the Republic of Serbia and from the region and their descendants” and “Serbs in the region”—namely the Serbian people in Slovenia, Croatia, Bosnia and Herzegovina, Montenegro, the Republic of Macedonia, Romania, Albania, and Hungary.Footnote 71 India’s PIO and OCI schemes exclude the members of the diaspora in Pakistan, Bangladesh, and other specified countries.Footnote 72 South Korea’s Overseas Koreans Act initially excluded co-ethnics in China and the former Soviet Union by procedurally discriminating against those who had emigrated before the establishment of the government of the Republic of Korea in 1948. The law was declared by the Constitutional Court as unconformable to the Constitution and was amended in 2004 to include all members of the diaspora wherever they lived, followed by a special guest-worker scheme for co-ethnics from China and the former Soviet Union.Footnote 73
Laws and policies vary in respect of whether they provide for general group support or individual rights or both. Italy and Romania only provide cultural support to “communities” or “minorities” and do not grant rights to individual members of the group, while all other countries mentioned above create some sort of benefits for individuals. It would be better not to apply the term “ethnizenship” to the Italian and Romanian cases notwithstanding the expanded meaning of the word.
Practices vary as to whether the benefits given to the ethnizen are economic or cultural in nature and whether the ethnizen enjoys a special immigration status. The Serbian law only gives cultural support. The original Hungarian Status Law of 2001 provided for a seasonal work permit, but it was abolished in 2003. Yet preference in entry and stay has been introduced in 2006 by a separate national visa scheme.Footnote 74 In most cases, some sorts of immigration preference are given either for settlement or for short-term entry and stay only. Ethnizens enjoy special access to the labour market in Bulgaria, Greece, Poland, Slovenia, Turkey, India and South Korea, Ethiopia, and Suriname.
Also important is whether benefits are distributed in the state of citizenship and habitual residence—the home-state in the Venice Commission’s terminology—or only when the beneficiary is in the kin-state. Bulgaria, Hungary, Russia, Serbia, and Slovenia give their kin-foreigners some cultural benefits inside the territory of the home-state. Economic benefits are mostly enjoyed on the territory of the kin-state. A state may be regarded as exercising its policy beyond its borders simply because of the taxonomy of nationhood that has trans-border implications—namely recognizing a non-citizen in a foreign country as a member of the nation—but the reality is that the ethnizen enjoys most of the benefits attached to his or her membership status only when he or she is in the kin-state. For that reason, ethnizenship cases are often dealt with under the rubric “ethnic return migration.”Footnote 75 For the same reason, the nationhood that is created by this membership politics is better described as transnational than trans-border because it involves the crossing of the personal boundaries of the citizenry as well as the territorial boundaries of the state, while the adjective “trans-border” is more suitable for activities that have actual border-crossing elements.
4. RULES OF ENGAGEMENT
Attempts to create transnational nationhood by means of ethnizenship can be met with the kind of sermon that some of the major European organizations gave Hungary. At an early stage of the Status Law saga, Rolf Ekéus, OSCE High Commissioner on National Minorities, issued a statement saying, “It is a basic principle of international law that the state can act only within its jurisdiction which extends to its territory and citizenry.”Footnote 76 Two years later, an explanatory memorandum drawn up by the Dutch jurist Eric Jürgens for a resolution of the Parliamentary Assembly of the Council of Europe (hereinafter PACE) had it that “the Council of Europe, and public international law in general, is based on the concept of ‘state’ and ‘citizenship’” and “this leaves no room for the concept of ‘nation’.”Footnote 77
However, this suspicious gaze constitutes only one part of the reality. Many cases of ethnizenship and engagement with diasporas or kin-minorities have not brought much controversy and have even been looked upon as models by other states. What makes the reactions different? Under what conditions are such engagement strategies accepted?
Normative analyses of ethnizenship are few compared with discussions of full external citizenship resulting in dual citizenship.Footnote 78 The Venice Commission’s 2001 Report on the Preferential Treatment of National Minorities by Their Kin-State was probably the first to present a normative outline about those practices, and has been cited as a starting point in some of the few studies that address the normative side of ethnizenship.Footnote 79 Romania’s 2004 Draft Law Concerning the Support for Romanians Living Abroad even stipulated specifically that the Venice Commission’s 2001 report and the OSCE High Commissioner’s statement should be respected.Footnote 80
The Venice Commission Report sets out four principles against which ethnizenship practices should be judged: (1) the principle of territorial sovereignty of states; (2) pacta sunt servanda; (3) the principle of friendly neighbourly relations; and (4) human rights and fundamental freedoms including the prohibition of discrimination. In generalizing the discussion beyond the European experiences and the Hungarian Status Law in particular, we had better merge issues (1) and (3), which relate to interstate peace, and broaden issue (2) to include other sources that can contribute to bringing a normative consensus.
4.1 Sovereignty and Friendly Neighbourly Relations
The problem of sovereignty arises only when the kin-state acts unilaterally—that is, without the consent of the home-state. Germany’s cultural support policy towards ethnic Germans has been based on agreements with related states.Footnote 81 Law on Diasporas and Serbs in the Region expressly declares that the state shall protect the rights and interests of the members of diaspora and Serbs in the region by concluding bilateral and multilateral agreements (Article 4(1)). Romania’s Draft Act of 2004 would have codified a similar attitude (Article 5).
The Venice Commission examined two kinds of action in reference to the possibility of encroaching upon the territorial sovereignty of other states: (1) making laws having effects upon foreign citizens and (2) exercising state powers outside of the national borders. Here, the Venice Commission concentrated on the issue of “territorial” sovereignty and observed that a state could legitimately issue laws concerning foreign citizens as long as the effects of those laws took place within the borders of the kin-state, provided that those laws satisfy other requirements such as equality and nondiscrimination. According to this interpretation, no problem of territorial sovereignty arises in the majority of ethnizenship cases; only the status laws of Bulgaria, Hungary, Russia, Serbia, and Slovenia have effects that take place in the territory of the home-state as well.
Yet the Venice Commission simultaneously recognized a situation in which a state could legitimately do something on foreign citizens in their state. That is when a kin-state distributes cultural or educational benefits. Yet it is legitimate only when the activity to be supported has a link with the culture of the kin-state. One of the problems with the initial Hungarian Status Law was that it provided for supports that could be enjoyed by university students and teachers of Hungarian ethnic origin inside their home-state regardless of what they studied and taught. Hungary had to remove those provisions. The line between the permitted and unpermitted is, however, unclear. What if South Korea awarded the former Yale Law School dean Harold H. Koh as a Global Korean simply because of his success as a legal educator in the US? Would the US be upset because its territorial sovereignty was infringed? Would South Korea’s act constitute a violation of international law even if the US is silent? The Venice Commission averred that consent should be explicit in fields not governed by treaties or customs. Yet a more practical rule would be to presume consent from acquiescence or indifference.
When the Venice Commission advanced the subprinciple that the kin-state should not exercise its powers outside its borders, the main object of concern was the way of certifying a person’s Hungarian ethnic origin. The initial Hungarian Status Law made it compulsory for applicants to obtain a recommendation from a Hungarian ethnic organization in the home-state. This was regarded as an illegitimate empowering of a non-state organization in a foreign state to perform a public function. Hungary had to remove it by its 2003 amendment. This kind of practice hardly exists in other cases of ethnizenship.Footnote 82
Is there no sovereignty issue as long as the kin-state takes measures that have effects only within its territory? The taxonomy of creating a special category of people by reason of ethnic or national affinity itself might have a destabilizing effect upon interstate relations, but the Venice Commission seems to have assumed that the mere adoption of legislation does not constitute an infringement of sovereignty. Yet, when that taxonomy materializes itself by way of documentation, such as issuing ethnic cards to kin-foreigners, friendly neighbourly relations with the home-state can be jeopardized, depending on the character and purpose of the documentation. The Venice Commission warns against creating a political bond between the kin-state and the target group by issuing cards that can be used as identity documents. The Commission does not make a distinction by reference to where the cards are issued—the kin-state or the home-state—and implies that cards issued in the kin-state may well be harmful to friendly neighbourly relations. Yet cards issued in the home-state have a greater danger of causing a dispute than cards issued in the kin-state. Cards are issued by Greece, Hungary, Poland, Slovakia, Ukraine, Turkey, India, South Korea, and Ethiopia. Most of them have names that sound like ethnic or national membership certificates.Footnote 83 South Korea has taken the most cautious attitude. It deliberately avoided such names as the “Korean card” and “overseas coethnic registration card” and adopted the name “residence notification card,” which reflects the requirement that the card should be issued only when the co-ethnic reports his or her residential address in South Korea.
4.2 Pacta Sunt Servanda and the International Consensus
The principle that pacta sunt servanda has unique implications in Europe. There are many bilateral treaties and multilateral instruments in Europe that would take precedence over other normative sources and pre-empt many measures that kin-states take in the name of protecting minorities—friendship treaties with neighbouring states, bilateral treaties on the protection of minority rights, and the Framework Convention for the Protection of National Minorities. Situations differ in other parts of the world where ethnizenship policy is not aimed at minority protection and where there is no existing treaty apart from general human rights instruments. In such situations, practices should be judged in light of various normative sources including soft law which work towards building an international consensus.
In assessing status laws, European organizations are wary of potential encroachments on territorial sovereignty, disruptions of friendly neighbourly relations, and irredentist attempts. When it comes to diaspora engagement in general, on the other hand, we find a far more positive attitude. The reports and recommendations adopted by PACE in 1999 and 2004 entitled Links between Europeans Living Abroad and Their Countries of Origin and the more recent report, recommendation, and resolution entitled Engaging European Diasporas show that the Council of Europe has firm commitment to encouraging its Member States to strengthen their links with their diasporas.Footnote 84 Stressing links between expatriates, who also include external citizens, and their country of origin, but also taking account of relations between European kin-states and their kin-minorities, this series of declarations by the Council of Europe strengthen the legitimacy claim of transnational nationhood projects. The explanatory memorandum for the 1999 recommendation even proposed to redefine the concept of nationality and to rethink the nexus between the nation and the state:
Finally, and far more ambitiously, the implications and significance of the concepts of nationality and citizenship in the building of Europe need to be explored in depth. For although, in the Council of Europe’s 1997 European Convention on Nationality, the terms “citizenship” and “nationality” are used to denote the same thing—the legal connection which exists between a person and a state—there are countries where “state” and “nation” are not the same thing, and citizenship can apply to several legally recognised nationalities. Many problems could certainly be solved by making a clear distinction between two sets of rights—those linked with residence in a given geographical area (“citizenship rights”) and those linked with possession of a given cultural, civic and national identity—and disregarding the traditional definition of the sovereign state, based on the concept of territory.Footnote 85
In its reports and recommendations, PACE approached the problem of diaspora engagement in the same context as the accommodation of various other groups that tended to be excluded from the democratic process, including immigrants and minorities within a state. This explains the lack of clarity in its statements,Footnote 86 but it offers an interesting suggestion that closely parallels the nation v. state agenda that overarches this special section in that it addresses the two sides of the decoupling of the nation from the state. PACE’s above documents also expose a tension with its other statements that deny the “nation” any place in public international law. This tension shows the unsettled character of the international norm concerning engagement with diasporas or external kin.
4.3 Equality and Non-Discrimination
The Venice Commission’s application of the equality principle is deficient and confusing. The Commission talks of three kinds of discrimination—between preferentially treated ethnizens and the citizens of the kin-state, between ethnizens and the citizens of the home-state, and between kin-foreigners and all other foreigners. The Commission conflates these differing dimensions of discrimination, which belong to different spheres of justice in Walzer’s terms.Footnote 87 This conflation results in the application of the affirmative action doctrine to the kin-state’s discrimination between kin-foreigners and the rest of the citizens in the home-state, over whom the kin-state has no jurisdiction and therefore no affirmative action is possible.Footnote 88 On a later occasion, however, the Venice Commission did not even allude to the issue of affirmative action when the issue should have been considered under the same logic: in respect of Romania’s Draft Law of 2004, the Commission commented, with no further consideration, that accommodation and subsistence support for kin-foreigner students might lead to discrimination against other Romanian-citizen students.Footnote 89
Second, the Venice Commission opined that preferential treatment is legal only in the field of education and culture, and is acceptable only in exceptional circumstances in other fields. This was a reaction to the Romanian grievance with the three months’ work permit that the 2001 Hungarian Status Law granted to Magyars in Romania, which was extended to all Romanians and later abolished. It also drove Slovakia to replace its existing law to remove the benefits of economic character.
The Venice Commission’s opinion, however, seems to be blind to the widespread ethnic preference policies in various fields other than culture and education. The Commission admits that ethnic targeting is common in nationality (citizenship) laws.Footnote 90 While discrimination on ethnic grounds is in principle prohibited in nationality law, facilitated ways of acquiring nationality for former nationals are not just allowed but to some degree even encouraged.Footnote 91 While preference in citizenship acquisition is an essential feature of ethnicization in citizenship,Footnote 92 its inclusion as a mode of ethnizenship might reduce the sharpness of the latter concept. However, preferential immigration and labour-market access are typical features of ethnizenship in fields other than culture and education. At least three of the nine cases that the Venice Commission examined in 2001—the Bulgarian, Greek, and Slovak (1997) laws—carried substantial elements of preference in immigration and labour-market access. South Korea, Turkey, and India belong to this group, joined by Slovenia and Poland. Such benefits of economic character are often less liable to generate conflict than many kinds of cultural support such as history education, not to speak of the restoration of historical monuments (as in Article 18(2)(d) of the Hungarian Status Law 2001).
Immigration preference as an element of ethnizenship collapses into a broader question in immigration policy: the question of whom to let in. In that regard, Christian Joppke’s book, Selecting by Origin, is a good source of inspiration. Joppke examines three different constellations of immigration policy—the settler-state constellation (the US and Australia), the European post-colonial constellation, and the ethnic immigration constellation (Israel and Germany). He redivides these into two different types: negative discrimination and positive discrimination. The thrust of Joppke’s argument is that the contemporary liberal state is in the crossfire of de-ethnicization and re-ethnicization and that ethnic migration will continue, but within liberal constraints.Footnote 93
The creation and preferential treatment of a special category of non-citizens are as much a domestic constitutional issue as an international legal issue. János Kis, a Hungarian political philosopher, argued that the Status Law was unconstitutional because it created without mandate a third category between the two categories of subjects recognized by the Constitution—that is, the citizen and every person. According to Kis, Hungary’s responsibility towards kin-minorities as declared by the Constitution was not specific enough to empower the state to create that kind of status.Footnote 94 The constitutional reference to kin-state responsibility has been strengthened, but the nature of the provisions has not changed, and it is doubtful whether the constitutional provisions would make irrelevant the kind of criticism advanced by Kis. Yet Constitutions that have provisions supporting transnational nationhood would obviously bring greater comfort to kin-state politics.
The issue of discrimination between different groups of foreigners was not addressed in the Korean Constitutional Court decision on the Overseas Koreans Act, but the National Human Rights Commission gave its opinion on the issue. It had it that, whereas different treatment on the grounds of ethnic origin would be at variance with the constitutional principle of equality, preferential treatment based on past citizenship was not contrary to the principle.Footnote 95 Joppke also refers to this difference, although that difference turns out to be less than fundamental in his overall discussion.Footnote 96 The past citizenship reference may sound more civic than the ethnic-origin reference widespread in European-status laws, but it has the danger of fixing descent as the sole qualification if the preferential treatment is extended to descendants of the former citizen, whereas the ethnic-origin reference may allow greater individual choice of cultural identity, as we see in European-status laws, where ethnic origin depends on linguistic or other cultural attributes.Footnote 97
4.4 Widespread Practice of Ethnizenship
Information of ethnizenship is difficult to come by compared to that of formal citizenship rules. Hence, the cases subjected to comparative analysis in this article are no more than examples. Preferential treatment of co-ethnics or former citizens lurks in various fields of national administration. Apart from the widespread practice of privileging co-ethnics or former citizens and their descendants in respect of citizenship acquisition, there are many cases of preferential treatment that should be included in our comparative study. It is well known that Japan has given nikkeijin from South America privileged access to the Japanese labour market.Footnote 98 A less studied case is Britain—a country not known for ethnic nationalism, which has a preference scheme for persons of British ancestry called the UK Ancestry Visa.Footnote 99
Whether China has an ethnizenship scheme is debatable. In 1990, China enacted the Law of the People’s Republic of China Concerning the Protection of the Rights and Interests of the Returned Overseas Chinese and the Relatives of Overseas Chinese (Zhonghua renmin gongheguo guiqiao qiaojuan quanyi baohu fa). Although the law, like Article 50 of the Constitution, appears to target huaqiao (Chinese nationals abroad) and not huaren (persons of Chinese origin) without citizenship, the relatives of huaqiao eligible for the special treatment are so broadly construed that many huaren without citizenship avail themselves of the benefits.Footnote 100
These examples suggest that ethnizenship is practised more widely than one might imagine, and it is at present difficult to put forward an exhaustive list of countries with ethnizenship schemes. Ethnizenship cannot be regarded as an exceptional oddity.
4.5 Ethnizenship and Dual Citizenship
Both advocates and critics of ethnizenship often compare ethnizenship with dual citizenship. At an early stage, the Chinese government criticized the Overseas Koreans Act as a deliberate attempt to create virtual dual citizens.Footnote 101 Indeed, ethnizenship is often conflated with, or relegated vis-à-vis, external citizenship in discussions of preferential membership policies, particularly when it is coupled with preferential access to formal citizenship.Footnote 102 One might wonder how clear the line between ethnizenship as a quasi-citizenship and formal external citizenship is. In practical terms, the line is thin when external citizens are not fully given electoral rights. Yet, in international legal relations, whether one is a national (citizen) of a particular country is a matter of all or nothing, and ethnizens are distinct from nationals in that they do not possess the internationally recognized passport of the kin-state and do not enjoy the diplomatic protection of that state. In that respect, the Overseas Citizenship of India does not amount to nationality in international law, regardless of its name.Footnote 103 With this difference in mind, some advocates of ethnizenship ask, “What’s wrong with granting coethnics some preferential treatment, whereas many countries give them full citizenship?”Footnote 104
Indeed, external citizenship leading to dual citizenship is an expedient means of creating a trans-border nation. Ethnizenship is useful as an alternative to dual citizenship, as in South Korea and India, and often turns out to be a stepping stone towards external citizenship, as in Hungary. It also supplements external citizenship by filling the gaps not covered by the toleration of dual citizenship, as in the case of Turkish emigrants in Germany. In any case, dual citizenship is susceptible to wary eyes on the part of the other state and often causes tension between states.Footnote 105 Croatia, Romania, and nowadays Hungary are cases in point. Russia’s appropriation of the populations in Abkhazia and South Ossetia as Russian citizens constitutes the most spectacular case of using dual citizenship as a means of aggressive kin-state politics.Footnote 106 The Independent International Fact-Finding Mission on the Conflict of Georgia organized by the European Union observed that the mass conferral of Russian citizenship upon those populations was neither legally binding nor lawful under international law.Footnote 107 This observation against “mass passportization” was reiterated in PACE’s Recommendation on Engaging European Diasporas in more general terms.Footnote 108 Yet there are few effective international mechanisms to suppress dual citizenship being used for trans-border nationalism projects. One might be tempted to find a check from the principle of “genuine link,” but that principle is not designed to constrain such use of dual citizenship.Footnote 109
Compared with the obtrusive strategy of incorporating ethnonational kin into the kin-state’s formal citizenry, ethnizenship looks relatively benign. Nevertheless, external citizens are citizens, and states have the right to determine who their citizens are and exercise power upon their citizens. On the other hand, ethnizenship marks the creation of national members out of non-citizens. Whereas dual citizenship contributes to making the nation and state citizenry coincide by closing the gap between the Staatsnation and Volksnation, ethnizenship expands the gap between the two sides of nationhood and is more likely to be seen as an aberration in that respect.
4.6 Constitutionalizing Transnational Nationhood With or Without Constitutional Nationalism
We have seen that some cases of ethnizenship and preferential treatment of kin-foreigners are supported by the Constitution, while others are not. Those Constitutions are subject to differing reactions. Why are certain Constitutions criticized for expressing commitment to trans-border nationhood while others are not, despite containing similar provisions? Why is Article 2 of the Irish Constitution not regarded as odd, whereas Article 10 of the Croatian Constitution and Article D of the Hungarian Constitution are seen with suspicion? Why was Mary Robinson applauded for her presidential inauguration speech where she professed to represent all people of Irish descent beyond Irish citizens, whereas people raised eyebrows when József Antall said almost the same thing for Hungarians?Footnote 110 The method and degree of executing the constitutional commitment make the difference. More fundamental are the implications of the constitutional rules in the politics of national identity. Some Constitutions express a thick national self-understanding, essentialize it, and privilege it over other collective identities. This generates exclusionary tendencies towards other nationalities within the territory, while at the same time expanding the scope of the titular nation beyond borders. The term “constitutional nationalism” is designed to address this phenomenon. Hayden defines it as “a constitutional and legal structure that privileges the members of one ethnically defined nation over other residents in a particular state” and which “envisions a state in which sovereignty resides with a particular nation (narod), the members of which are the ones who can decide fundamental questions of state form and identity.”Footnote 111
Constitutional nationalism often manifests itself through the words of the preamble. Croatia’s promise of special concern and “protection” for “parts of the Croatian nation” should be read in conjunction with Chapter 1, “Historical Foundations,” which is functionally equivalent to a preamble. This text, which consists of 678 words, enumerates historical events leading to the secession in a way that emphasizes the Republic of Croatia being a “nation state of the Croatian nation.”Footnote 112 The preamble recognizes that the Republic of Croatia is also the state of “the members of its national minorities,” which include Serbs, Slovenians, Bosniaks, Montenegrins, and Macedonians along with Czechs, Germans, Russians, Turks, and so forth. In other words, Serbs and the other constituent nations of the Yugoslav federation were relegated to minorities in parallel with the enthroning of Croats as the titular nation.Footnote 113
The preamble of Hungary’s new Constitution of 2011 also brought controversy. When the Venice Commission examined the new Constitution of Hungary, it criticized the articulation of the “national avowal” referring to historical events in a way that officially fixes a national self-image and the thick character of the national identity that the preamble represents:
while it is not uncommon that the Preamble to a Constitution or the chapter on the general principles includes provisions on the values underlying the Constitution, a Constitution should avoid defining or establishing once and for all values of which there are different justifiable conceptions in society.Footnote 114
In the Commission’s view,
[T]he Preamble seems to be premised on a distinction between the Hungarian nation and (other) nationalities living in Hungary …. The Preamble … continues by stating: “the nationalities living with us form part of the political community and are constituent parts of the State.” While this statement may be seen as an effort towards inclusiveness, it is also to be noted that the Preamble has been written in the name of “we the members of the Hungarian nation,” intimating that members of the “nationalities living with us” are not part of the people behind the enactment of the Constitution. The Constitution should be seen as the result of the democratic will-formation of the country’s citizens as a whole, and not only of the dominant ethnic group. Therefore, the language used could/should have been more inclusive (such as, for example “We, citizens of Hungary”).Footnote 115
While the constitutional politics of Croatia in the early 1990s was clearly typified by privileging one of the ethnic nations in the same multinational state over the others, Hungarian politics surrounding the new Constitution was problematized primarily because of the weakening of constitutional democracy.Footnote 116 Nevertheless, the trans-border extension of nationhood and the creation of ethnizens in these countries were inseparably connected with the hegemonic reproduction of the majority nation and formed an integral part of the project of constitutional nationalism.
Not all cases of constitutional creation of transnational nationhood have the same problem. Ireland, known for its constitutional text promoting solidarity with “people of Irish ancestry living abroad,” has one of the most liberal citizenship regimes in Europe—far more liberal than those of Austria and Italy, whose Constitutions do not contain any such provision.Footnote 117 The Irish example shows that constitutional commitment to trans-border ethnonational solidarity is compatible with democracy and an inclusive citizenship and immigration policy. The benign character of the constitutional commitment can also be strengthened by an expression of respect for the sovereignty of the home-state and friendly neighbourly relations, as in the Romanian Constitution (Article 7), or avowing compliance with international law, as in the Armenian Constitution (Article 19(2)).
It is also the politics of today and current realities that matter greatly in the normative evaluation of the constitutional politics of transnational nationhood. Although the nation-related parts of the Croatian Constitution remained the same, the European Union did not take those parts seriously in its monitoring of Croatia’s preparations for accession to the European Union.Footnote 118 As we have seen, the Venice Commission did not go further than commenting on the Serb-centred definition of the national character of the Serbian state when it examined the Serbian Constitution. On the other hand, it reprimanded Hungary for the contents of its new Constitution, including its concept of nation and declaration of responsibility for “the fate of Hungarians living beyond its borders.” This shows that Hungary’s authoritarian politics under FIDESZ generates a greater concern about its constitutional nationalism than those of post-Milošević Serbia and post-Tudjman Croatia.
5. CONCLUSION
This article has brought differing legal regimes of transnational engagement with non-citizens by reason of ethnic or national affinity into a single comparative framework. In so doing, it has tried to fill the gulf between the studies of two different constellations—the protection of kin-minorities in neighbouring countries and engagement with diasporas in various parts of the world. Some of the existing studies emphasized the common ground between the two constellations.Footnote 119 This article supports that position. It is true, as Bauböck points out, that the situation of minorities separated from their kin-state without migration but as a result of border change differs from that of territorially dispersed diasporic populations and has a much more complex normative claim than the latter.Footnote 120 I agree that distinction is needed between the two constellations and object to applying the term “diaspora” to all kinds of people outside of their state of origin. The need to merge the two, however, comes from the fact that most of the target groups of the Eastern European status laws have also experienced some kind of migration over generations, while the diaspora-engagement policies of some of the emigrant-sending countries are also directed towards historic diasporas whose separation from the homeland involved experiences not less traumatic than those of stranded minorities in former Communist countries in Eastern Europe.Footnote 121 Hence, Bauböck has admitted that “analytical distinctions between the two transnational political constellations are thus important for explanatory and normative purposes, but they are frequently blurred in real world cases.”Footnote 122 In this light, the comparative study by Skrentny, Chan, Fox, and Kim is susceptible to criticism for its simple dichotomy between the ethnoculturally embedded European versus the instrumentally oriented East Asian approaches to ethnic return migration.Footnote 123 The Eastern European policies have been driven by the desire to tap economic as well as cultural and political resources from co-ethnics abroad,Footnote 124 while emigrant-sending countries also use evocative historical and cultural rationales for their engagement policies.
This article has addressed the normative side of the transnational nationhood projects. It is now clear that there are widespread practices of creating national members outside of the state citizenry and granting them preferential treatment on grounds of ethnic or national affinity. Those practices are based on legislation, and often have constitutional grounds. The forms of creation and treatment of kin-foreigners, or ethnizens, can be classified by reference to how to define the target person—ethnicity, cultural identity, descent, past citizenship, and so forth—whether the law and policy target kin-foreigners living in particular states or foreign countries in general, whether and to what extent the effects of the law and policy take place on the territory of another state, and what kind of rights and benefits the kin-foreigner enjoys. The modes of engagement constitute a spectrum with varying degrees of ethnic nationalist appeals and trans-border projection of power. Yet international norm to govern those practices is in flux and unsettled. Respect for the sovereignty of other states and the principle of equality and nondiscrimination are the two main normative prongs in light of which those practices are judged, but those general and abstract legal principles have not provided adequate guidelines that would apply to concrete situations. Given the paucity of the rules of engagement, the legality and legitimacy of those transnational nation-building projects are politically contingent—contingent on the reactions of affected states and the international community.
After all, under the hegemonic gaze of the international legal order, the transnational nationhood policies introduced in this article may look anomalous. They register a dissociation of the nation from the state, disturbing the myth of congruence between nation and state that is at the heart of the very concept of nation-state. Hungarian advocates of the Status Law highlighted this aspect and rationalized the law in a reverse way. János Mártonyi, the Hungarian foreign minister when the Status Law was enacted, said:
In the future it won’t be the territorially defined state that determines everything. Its role will remain important, but alongside it national communities, for example, will also strengthen. For me, in the future there won’t be minorities, only communities. And I believe that our continent will become a community of communities.Footnote 125
Some scholars concur with this first-order statement and advance a second-order interpretation that the Hungarian Status Law was signalling the advent of a post-modern notion of statehood.Footnote 126
Yet I argue that this way of decoupling the nation from the state by no means signals a departure from the logic of the Westphalian nation-state. The challenge to the nation-state logic rationalized by Mártonyi was also a part of a state project. His remarks only reveal the fact that non-correspondence between nation and state or between Volksnation and Staatsnation has been a persistent feature of the nation-state.Footnote 127
It is true, however, that nations do not have the same collective self-understanding, although the differing notions of nation should not lend themselves to a dichotomous characterization as civic or ethnic. The cases of transnational nation-building we have canvassed sensitize us to the diversity of the ways in which people conceive of the relationship between nation and state. While Eric Jürgens’s explanatory memorandum bluntly asserted that there was “no room for the concept of ‘nation’” in public international law, the PACE resolution itself did not use such an expression and recognized that “there is no common European legal definition of the concept of ‘nation’.”Footnote 128 This presaged a more complex observation of European notions of nation in a subsequent report and recommendation adopted by PACE. The report and recommendation entitled “The Concept of Nation,” which PACE adopted in 2005 and 2006 respectively, contained critical views on constitutional nationalism and a cautious approach to the kin-state policy of trans-border engagement with kin-minorities, but simultaneously highlighted the diversity in which European nations conceived of the relationship between nation and state and recognized the viability of nations as cultural communities not reducible to states.Footnote 129 Zoltán Kántor, Hungary’s renowned nationalism scholar, welcomed it as showing “a shift in thinking at a European level.”Footnote 130 I wonder whether it is not better to characterize it as a nuanced manifestation of Europe’s unsettled normative position towards complex realities. While exhorting Hungary to respect the jurisdiction of other states, OSCE High Commissioner Rolf Ekéus agreed that “national and state boundaries seldom overlap; in fact, there are few pure ‘nation-states’.”Footnote 131
