Right of return

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The term Right of return refers to the principle in international law that members of an ethnic or national group have a right to immigration and naturalization into the country that they, the destination country, or both consider to be that group's homeland, independent of prior personal citizenship in that country. This belief is sometimes reflected in special consideration in a country's immigration laws (called "repatriation") which facilitate or encourage the reunion of a diaspora or dispersed ethnic population.

Contents

[edit] Background

The Universal Declaration of Human Rights (UDHR) article 13 states that "[e]veryone has the right to freedom of movement and residence within the borders of each State. Everyone has the right to leave any country, including his own, and to return to his country." (emphasis added). There is disagreement as to what this actually means in practice as well as whether country refers to a state or a specific area of land. In addition, the change from State to country from the first sentence to the second clouds the issue.

Much of the controversy surrounding such a right, however, derives from disagreement surrounding what in UDHR article 13 is referred to as "his own". Because many countries are nation-states predicated on the right to national self-determination, such countries often identify a special link between them and persons identified with the nation, or people, whose self-determination that country enables. National laws implementing a "right of return" tend to be predicated on that link. Because they give people of a certain background preferential immigration, however, such laws are controversial, especially where they are perceived to be at the expense of other people who want to immigrate.

Some countries, such as the Philippines, have devised means to "reacquire" or retain former citizens who lost their citizenship upon accession to another country, particularly to recover the contributions and potential investment opportunities of former citizens abroad. Schemes such as these bear some resemblance to right of return plans, because they highlight how a homeland's motivation to build links of citizenship with diasporas may draw from potential investment, not just the nation-state's perceived cultural duty towards one or more particular peoples. Such schemes do not necessarily constitute rights of return, however, particularly where they target former citizenship-holders rather than members of an ethnic group who may never have held citizenship, or whose diaspora location even predates state formation.

Choice of a former-citizen scheme, such as the Philippines' Republic Act 9925 ("Citizenship Retention and Re-Acquisition Act of 2003"), rather than a right of return such as those listed below, may be more closely associated with the historic circumstances of a people's dispersion and of nation-state formation, respectively, than with principled choices between them. Use of a right of return is therefore more likely in nation-states constituted more recently or whose diasporas are long-standing, and less likely nation-states constituted earlier and/or whose diasporas were constituted more recently.

[edit] Armenia

Article 14 of the Constitution of the Republic of Armenia (1995) provides that "[i]Individuals of Armenian origin shall acquire citizenship of the Republic of Armenia through a simplified procedure."[1] This provision is consistent with the Declaration on Independence of Armenia, issued by the Supreme Soviet of the Republic of Armenia in 1989, which declared at article 4 that "Armenians living abroad are entitled to the citizenship of the Republic of Armenia".

[edit] Belarus

Citizenship act of the Republic of Belarus (2002) states that permanent residence terms may be waived for ethnic Belarusians and descendants of ethnic Belarusians who were born abroad before applying for Belarusian citizenship.

[edit] Bulgaria

According to the Constitution of Bulgaria, Article 25(2): "A person of Bulgarian origin shall acquire Bulgarian citizenship through a facilitated procedure."[2]

Chapter Two of the Bulgarian Citizenship Act is entitled "Acquisition of Bulgarian Citizenship". The first section of that chapter is entitled "Acquisition of Bulgarian Citizenship by Origin", and provides at article 9 that "[a]ny person ... whose descent from a Bulgarian citizen has been established by way of a court ruling shall be a Bulgarian citizen by origin." Separately, article 15 of the Act provides that "[a]ny person who is not a Bulgarian citizen may acquire Bulgarian citizenship ... if he/she ... is of a Bulgarian origin".

Ethnic Turks who were born to refugees or immigrants from Bulgarian lands (and thus have Bulgarian origin) also have a right of return.

[edit] China

Chinese immigration law gives priority to returning Overseas Chinese — ethnic Chinese who were living abroad. As a result, practically all immigrants to China are ethnic Chinese, including many whose families lived outside of China for generations.

The Chinese government encourages the return of Overseas Chinese with various incentives not available to others, such as "tax breaks, high salaries and exemptions from the one-child policy if they had two children while living abroad".[3]

The "rights and interests of returned overseas Chinese" are afforded special protection according to Articles 50 and 89 of the Chinese Constitution.[4]

The term Overseas Chinese may be defined narrowly to refer only to people of Han ethnicity, or more broadly to refer to members of other Chinese ethnic groups. As a result of this ambiguity, people who are not Han but were born in China and subsequently left, including refugees, are not necessarily eligible for the same preferential treatment.

[edit] Croatia

The Croatian law on citizenship (Zakon od hrvatskom državljanstvu), article 11, defines emigrants (iseljenik) and gives them privileges by excluding them from certain conditions imposed on others.

The Croatian diaspora makes use of this to obtain dual citizenship or to return to Croatia.

[edit] Czech Republic

In 1995 the Czech Republic amended its Citizenship Law to provide the Interior Ministry with the discretion to waive the usual five-year residency requirement for foreigners that had been resettled in the Czech Republic by 31 December 1994. This amendment was aimed particularly at several hundred ethnic Czechs which had been brought by the Czech government from the Ukrainian region of Volhynia, and was of a limited duration.[5]

The amendment was consistent with what the Czech Ministry of Labor and Social Affairs has identified as "the Czech government's policy principles regarding the resettlement of foreigners of Czech origin living abroad."[6] A private fund, the People in Need Czech TV Foundation, worked with government authorities between 1995 and 2001 to effect this resettlement in the specific instance of Russian and Kazakh citizens of Czech origin, and had resettled approximately 750 such persons as of 2000.[7] The strength or prominence of this policy within the Czech government may be uneven, however, and the state appears to have rebuffed dual citizenship overtures from ethnic Czechs living in the comparatively large diaspora of former Czechs in Western countries.

[edit] Finland

The Finnish Aliens Act provides for persons who are of Finnish origin to receive permanent residence. This generally means Karelians and Ingrian Finns from the former Soviet Union, but United States, Canadian or Swedish nationals with Finnish ancestry can also apply.

The Finnish Directorate of Immigration website states on its Returnees page that;

  • Certain aliens, who have Finnish ancestry or otherwise a close connection with Finland, may be granted a residence permit on this basis. No other reason, such as work or study, is required in order to receive the permit.
  • Receiving a residence permit depends on the directness and closeness of Finnish ancestry. If the ancestry dates back several generations, a residence permit cannot be granted on this basis.
  • People who may be granted a residence permit based on Finnish ancestry or close connections with Finland can be divided into the following three groups:

[edit] France

What might be historically the first law recognising a Right of Return was enacted in France in 1790, as part of the French Revolution putting a decisive end to the centuries-long persecution and discrimination of Huguenots (French Protestants).

Concurently with making all Protestants resident in France into full-fledged citizens, the law enacted on December 15, 1790 stated that : 'All persons born in a foreign country and descending in any degree of a French man or woman expatriated for religious reason are declared French nationals (naturels français) and will benefit to rights attached to that quality if they come back to France, establish their domicile there and take the civic oath.'

Article 4 of the June 26, 1889 Nationality Law stated that: 'Descendants of families proscribed by the revocation of the Edict of Nantes will continue to benefit from the benefit of the December 15, 1790 Law, but on the condition that a nominal decree should be issued for every petitioner. That decree will only produce its effects for the future.'

Foreign descendants of Huguenots lost the automatic right to French citizenship in 1945 (by force of the ordonnance du 19 octobre 1945, revoking the 1889 Nationality Law).

See Huguenot#End of persecution and restoration of French Citizenship.

[edit] Germany

German law allows persons of German descent living in Eastern Europe (so-called Aussiedler, see Volga Germans) to move to Germany and be granted German citizenship. As with many legal implementations of the Right of return, the "return" to Germany of individuals who may never have lived in Germany based on their ethnic origin has been the object of controversy. The law is codified in Article 116 of the Basic Law for the Federal Republic of Germany, which provides access to German citizenship for anyone "who has been admitted to the territory of the German Reich within the boundaries of December 31, 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendant of such person".[11]

The historic context for Article 116 was the eviction, following World War II, of an estimated 9 million ethnic Germans from other countries in Central and Eastern Europe. Another 9 million Germans from former eastern German provinces, over which Stalin and eastern neighbour states extended military hegemony in 1945, were expelled as well. These expellees and refugees (known as Heimatvertriebene) were given refugee status and documents and resettled by Germany; discussion of possible compensation is ongoing. Some German expellees desire to resettle in their territories of birth, youth and early life, but legal procedures often make remigration difficult, even after Poland and the Czech Republic joined the European Union.

In contrast to Aussiedler, persons of German descent living in North America, South America etc. do not have an automatic Right of return and must actually prove their eligibility for German citizenship according to the clauses pertaining to the German nationality law.

[edit] Greece

"Foreign persons of Greek origin", who neither live in Greece nor hold Greek citizenship nor were necessarily born there, may become Greek citizens by enlisting in Greece's military forces, under article 4 of the Code of Greek Citizenship, as amended by the Acquisition of Greek Nationality by Aliens of Greek Origin Law (Law 2130/1993). Anyone wishing to do so must present a number of documents, including "[a]vailable written records ... proving the Greek origin of the interested person and his ancestors."

[edit] India

A Person of Indian Origin (PIO) is a person living outside of India and without Indian citizenship, but of Indian origin up to four generations removed. It is available to persons of Indian origin anywhere in the world as long as they have never been citizens of Pakistan or of Bangladesh. This unusual type of citizenship by descent is an intermediate form of citizenship in that it does not grant the full portfolio of rights enjoyed by Indian citizens.

The Citizenship (Amendment) Act 2003 and Citizenship (Amendment) Ordinance 2005 make provision for an even newer form of Indian nationality, the holders of which are to be known as Overseas Citizens of India (OCI). Overseas citizenship is not substantially different than PIO rights.

Holding either PIO or OCI status does, however, facilitate access to full Indian citizenship. An OCI who has been registered for five years, for instance, need be resident for only one year in India before becoming a full citizen.

[edit] Ireland

Irish nationality law provides for Irish citizenship to be acquired on the basis of at least one Irish grandparent. If a person outside of Ireland who is entitled to claim Irish citizenship elects not to, that person may nonetheless pass that right on to her or his own children, even if the basis for the entitlement being passed on is a single Irish grandparent. To do so, that person must register her or his birth in Ireland's Foreign Births Register.

Separately from this right, the Irish minister charged with immigration may dispense with conditions of naturalisation to grant citizenship to an applicant who "is of Irish descent or Irish associations", under article 15 of the Irish Nationality and Citizenship Act, 1986.

[edit] Israel

[edit] Jewish

Main article: Law of Return

Under the Israeli Law of Return most people of Jewish heritage can immigrate to Israel and receive Israeli citizenship with all the privileges and obligations thereto.

In the last quarter of the 19th century, the Zionist Movement sought to encourage diaspora Jews to resettle British-Controlled Palestine. Many Jews, including secular Zionists and religious Jews, believe that because the land where Israel now stands is the biblical Land of Israel, there should thereofore be a state on that land. Other Zionists linking people of Jewish heritage to Palestine argue for a right of return based on more conventional arguments similar to those which underpin rights of return in most other countries. This secular or political argument holds that such a linkage is founded in international law's Westphalian organization of peoples into nation-states, and in the "right" of the Jews to statehood under that basic principle. Theodor Herzl is probably the best-known exponent of this argument, and it is not without critics, either. Some critics argue that Jews comprise a religion whose members hail from many nations and do not constitute a people or a nation, and that they can therefore have no right of self-determination to exercise. Within this group, some argue that Jews are citizens of their own states and belong to the nations they come from, and are therefore foreign to Palestine. Based on this, they say that this nullifies Jewish self-determination since the concept of self-determination only applies to land that a person is a native in. Other critics argue that nation-states are outmoded and unjust in any case, and that the Westphalian notion of a right to self-determination as embodied in the U.N. Charter should therefore give way to post-national states which allow their citizens to mobilize marketplace or voluntary mechanisms for cultural preservation, not state institutions.

It was on the basis of the latter, secular argument that the Balfour Declaration of November 2, 1917, proposed a Jewish right of return, the first modern diplomatic document to do so. It states inter alia: "His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people and will use their best endeavours to facilitate the achievement of this object." However, the Balfour Declaration also states that "nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine."

The British Mandate of Palestine authorizing document conferred on Britain by the League of Nations in 1922, addressed the idea of a right of Jews to return to Israel. Article 6 of that document reads in part: "The Administration of Palestine... shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish agency... close settlement by Jews on the land...". However, the League of Nations mandate also echoes the language of the British declaration, demanding that the mandatory power "safeguard the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion,".

The Jewish "right of return" was embodied in the Declaration of the Establishment of the State of Israel of May 14, 1948: "The State of Israel will be open for Jewish immigration and for the ingathering of the exiles...".

Since the founding of the State of Israel, millions of Jews from all over the world have availed themselves of the Law of Return. These include surviving victims of the Holocaust (many of whom were interned in displaced persons camps in Europe after World War II and later in Cyprus when the British Mandatory government refused them entry), approximately 650,000 North African and Mizrahi Jews of the Middle East who fled discrimination and persecution (and at times were expelled) by Arab governments (particularly after the founding of the State of Israel), and almost a million Russian Jews who emigrated from the former Soviet Union after the emigration policy changes of 1980s prompted by the Jackson-Vanik amendment and the impending collapse of the USSR.

As codified in Israeli law as the Law of Return 1950 passed on July 5th, 1950, "Every Jew has the right to come to this country as an oleh". The law was amended in 1970 to grant the right to immigrate to Israel to non-Jews who are either children or grandchildren of a Jew, the spouse of a Jew or the spouse of a child or grandchild of a Jew. The amendment was intended to accept in Israel families, mainly from Eastern Europe, where mixed marriages were abundant, and where individuals and family members not considered Jews under the traditional definition might still be subject to anti-Semitism.

The Israeli Law of Return does not categorically exclude non-Jews from immigrating to Israel. Any person who wishes to settle in Israel, may do so, at least in theory (in practice, Palestinians, including former residents, are excluded, see below). That person must meet the requirements set forth in the Law of Entry to Israel (1952) and the Law of Citizenship (1952), regarding naturalization. These requirements are similar to those stated in the laws of most countries such as:

  1. they must have resided in Israel for three years out of five years preceding the day of submission of the application;
  2. they are residing legally in Israel and have settled permanently or intend to settle permanently in Israel;
  3. they have renounced their prior nationality, or have proved that they will cease to be foreign nationals upon becoming Israeli citizens.

Israel's self-identification as a Jewish state, and its pro-Jewish immigration policy is seen as a sign that the country is a home for the Jewish people.

[edit] Palestinian

The term "Right of Return", when applied to Palestinians with respect to the State of Israel differs significantly with the definition of the term atop of this article. It reflects a belief that Palestinian refugees and their descendants have a right to return to the homes their families had possessed and were forced to leave prior to the 1948 Arab-Israeli war.

The non-binding UN General Assembly Resolution 194 was passed on December 11, 1948 which recommended that the Palestinian and Jewish refugees should be permitted to return if they are willing to live in peace with their neighbors-- it never outlines any "right" for either of the parties, though. The text of its Article 11: "[r]esolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property..."[12] The Arab states originally rejected this resolution, although today they often leverage it in arguing for a Palestinian right of return.

Significantly, the UN maintains a separate and distinct definition of the word "refugees" for Palestinians who left Palestine (including present-day Israel, the West Bank, and Gaza) in 1948 and/or 1967. Palestinian refugees from Palestine are classed as both the individuals who left their homes and any descendants of those individuals. This stands in contrast to the UN definition of refugee as it applies to displaced persons connected with territories other than those of the State of Israel, the West Bank, and Gaza: in the latter case it refers only to those individuals who were forced to flee, not to their lineal descendants.[13]

The question of whether or not Palestinians should return to lands within the State of Israel is, next to the question of the status of Jerusalem, one of the major impediments to a peace settlement between Israel and the Palestinians. The Arab states have for decades publicly insisted on this as one of the main conditions for peace. The Oslo accords were only made possible because both sides agreed to leave this question open for future negotiations. At the 2000 negotiation at Camp David between Palestinian leader Yasser Arafat and Israeli Prime Minister Ehud Barak, for instance, the right of return was one issue on which the talks broke down. Barak was willing to accept a Palestinian state taking in the Gaza Strip and most of the West Bank, plus co-sovereignty over Jerusalem, but would not accept a Palestinian right of return to Israel. Arafat for his part would not accept any settlement that did not contain at least some provisions on this issue.

[edit] Impact on Israel

If all the Palestinian refugees and their descendants (estimates range between 5 and 8 million people) were to return to their original home within Israel this would lead to a demographic shift which would end Israel's status as a Jewish state, as Israel's current population is composed of about 5.8 million Jews and 1.3 million Muslim and Christian Palestinian Arabs. This is the main cause for Israel's continued withholding to the Palestinian right of return.

A mass return of Palestinians and their descendants would turn Israel into an Arab country with a Jewish minority. This would automatically defeat the purpose of Israel's creation, doing away with a Jewish state, as a refuge for the Jews of the world.

Even if a smaller number of refugees were to return, as little as one million, this would still alter Israel's character as a Jewish state. A very large majority of Jewish Israelis find this prospect unacceptable. They see the demand for a Palestinian Right of Return as merely another, more subtle way of arguing for the destruction of Israel as a Jewish state, and demand that the Palestinians recognize that Israel has a right to exist as a Jewish-majority state. Most Israelis virtually equate the Right of Return with Israel's destruction. A minority, however, believe that if Israel were to acknowledge a right of return, the ensuing changes might be positive for Israelis and Palestinians alike [14]. Supporters of the right to return claim that if a Jew born in America has the right to immigrate to Palestine/Israel, a Palestinian born in a refugee camp should have the right to return to his or her homeland; however such claims ignore the fact that Jews themselves were forced to flee from their own homelands in Arab states. They also point to a June 2003 survey of Palestinians living in the West Bank, Gaza Strip, Jordan and Lebanon, which found that only 10% of those surveyed stated that they would become residents of Israel if given a choice.

[edit] Japan

A special visa category exists exclusively for foreign descendants of Japanese emigrates (Nikkeijin) up to the third generation, which provides for long-term residence, unrestricted by occupation, but most Nikkeijin cannot acquire Japanese citizenship.

[edit] Lithuania

From the Constitution of Lithuania, Article 32(4): "Every Lithuanian person may settle in Lithuania."[15]

[edit] Norway

The Kola Norwegians were Norwegians who settled along the coastline of the Russian Kola Peninsula from approximately 1850 to the closure of the border in the 1920's. It is estimated that around 1000 Norwegians lived on the Kola peninsula in 1917. The Kola Norwegians were deported to or put in camps in other parts of Russia during the course of World War II.

It was only after 1990 that many of the Kola Norwegians again dared to emphasise their background. Only a few had been able to maintain a rusty knowledge of Norwegian. Some of them have migrated back to Norway. There are special provisions in the Norwegian rules of immigration and citizenship which eases this process for many Kola Norwegians. These provisions are in general stricter then in some other countries giving "Right of return". In order to obtain a permit to immigrate and work in Norway a Kola Norwegian will have to prove an adequate connection to Norway such as having at least two grand parents from Norway.[1] Citizenship will then be awarded according to regular rules.[2] As of 2004 approximately 200 Kola Norwegians had moved back to Norway.[3]

[edit] Poland

From the Constitution of Poland, Article 52(5): "Anyone whose Polish origin has been confirmed in accordance with statute may settle permanently in Poland."[16]

[edit] Serbia

Article 23 of the 2004 citizenship law provides that the descendants of emigrants from Serbia, or ethnic Serbs residing abroad, may take up citizenship upon written declaration.

[edit] Spain

Upon the rediscovery of Sephardi Jews during the campaigns of General Juan Prim in Northern Africa, the Spanish governments have taken friendly measures towards the descendants of the Jews expelled from Spain in 1492 (during the Spanish Inquisition. The motivation for these measures was a desire to repair a perceived injustice, the need of a collaborative base of natives in Spanish Morocco, and an attempt to attract the sympathy of wealthy European Sephardis like the Pereiras of France. The Edict of Expulsion was revoked. The Spanish diplomacy exercised protection over Sephardis of the Ottoman Empire and the independent Balkanic states succeeding it. The government of Miguel Primo de Rivera decreed in 1924 that every Sephardi could claim Spanish citizenship. This right was used by some refugees during the Second World War, including the Hungarian Jews saved by Ángel Sanz Briz and Giorgio Perlasca. This decree was again put to use to receive some Jews from Sarajevo during the Bosnian War.

Emigrants of Spanish origins (mainly exiles from the Spanish Civil War) and their children are eligible of recovering Spanish nationality without the requirement of residing in Spain, they also have the right of maintaining any current nationality they posses.

Children of original Spaniards that were born within the Spanish territory can apply for Spanish citizenship without age or time restrictions or residence requirements. They have to renounce any foreign nationality they posses except if these nationality is of an Ibero-American country, Portugal, Andorra, Philippines or Equatorial Guinea.

Children and Grandchildren of original Spaniards born outside of Spanish territory (the children of a person that had Spanish citizenship at the moment of their birth) can also access Spanish nationality on softer terms than other foreigners: They require just 1 year of legal residence, and they are exempted of work restrictions. Currently there is a reform process underway that when passed will allow the children of original Spaniards to be able to apply for Spanish citizenship on the same terms as those that had their parents born in Spain; grandchildren are not covered in the current draft.

Ibero-Americans and nationals of other countries closely related to Spain (Portugal, Andorra, Philippines, and Equatorial Guinea) also have a Right of Return: They can apply to Spanish nationality after 2 years of Legal residence and they have the right to keep their birth nationality[4]. .

[edit] Taiwan

Taiwan's immigration law gives priority to returning overseas Taiwanese, Taiwanese who were living abroad, and encourages their return.

[edit] Other

A non-exhaustive list of other countries believed to have similar laws is South Korea, Hungary and Slovakia. Similarly, the Liberian constitution (currently defunct and being rewritten) allows only people "of Negro descent" (regardless of ethno-national affiliation) to become citizens. As with other laws enacting rights of return, many of the laws in these countries appear to reflect a desire by governments to guarantee a safe haven to diaspora populations, particularly those assumed to be living under precarious conditions.

[edit] External links

  1. ^ Provisions given in addition to the Norwegian law of Citizenship, point 3.8.4. (Norwegian) Retrieved 11 December 2006
  2. ^ Norwegian terms of citizenship Retrieved 11 December 2006
  3. ^ Article in Aftenposten givina some statistics on the Kola Norwegians (Norwegian) Retrieved 11 December 2006
  4. ^ Spanish Civil Code of 2002, article 22.

[edit] Further reading

  • Wall Street Journal, August 11, 2004. War Echo: Ousted by Poland in 1945, Germans Want Homes Back

[edit] See also

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