The post-communist diaspora laws: Beyond the "good civic versus bad ethnic" nationalism dichotomy

East European Politics and Societies

Volumn 24, Issue 1, 2010, Pages 159-187

  Shevel, Oxana ^a  

^a TUFTS UNIVERSITY   (United States)

Author keywords

Diaspora; Hungary; Minorities; Nationalism; Ukraine

Indexed keywords

EID: 75849116021     PISSN: 08883254     EISSN: 15338371     Source Type: Journal    
DOI: 10.1177/0888325409353182     Document Type: Article

References (97)

1. European Commission for Democracy through Law of the Council of Europe (hereafter the Venice Commission's report), "Report on the Preferential Treatment of National Minorities by Their Kin- State" (CDL-INF [2001] 19), 22 October 2001. The Venice Commission used the term "kin-minorities" when referring to the target groups of these laws. Since different countries use different terms in their legislation, this article will use the terms diaspora, kin, and compatriots interchangeably.
2. In the early 1990s, provisions on state obligations towards its kin minorities abroad were included in a number of newly adopted post-Communist constitutions. The Venice Commission's report listed Hungary, Romania, Slovenia, Macedonia, Croatia, Ukraine, Poland, and Slovakia as countries where constitutions include such clauses. Other countries incorporate provisions aimed at their kin abroad in other legislative acts, such as migration legislation. In Kazakhstan, for example, the 1997 law "On Migration of Population" established the status of olarman-a foreigner or stateless person who is an ethnic Kazakh-and accorded certain rights and benefits to this group.
3. An amended law no. 474 "On Slovaks Living Abroad" was adopted in September 2005.
4. Full titles of these laws and the dates of their adoption are listed in the Venice Commission's report, section C. It should be also noted that while this study focuses on the post-Communist states, laws on diaspora is not a phenomenon unique to post-Communist states. Some Western European states such as Germany, Greece, and Italy also have such laws. The Venice Commission's report lists these laws as well.
5. Chapter 1, paragraph 1 of the 1996 Slovenian parliamentary resolution. It is worth noting that while most status laws apply to diaspora all over the world, Slovene and Hungarian legislation applies only to the kin in neighboring countries.
6. Article 1, paragraph 2 of the 1997 Slovak law. The 2005 Slovak law is even more explicitly ethnic, requiring presence of an ancestor of "Slovak ethnic origin." Article 1, section 2, paragraph 2 of the 2005 Slovak law.
7. Article 1, part 2 of the 2000 Bulgarian law.
8. Article 2 of the 1998 Romanian law.
9. The Russian law defines as compatriots not only those who do not have Russian citizenship, but also Russian citizens who live abroad (Article 1, paragraph 2, of the 1999 law). The 2005 Slovak Law does the same.
10. Article 1 of the 2004 Ukrainian law.
11. Hans Kohn, The Idea of Nationalism, a Study in Its Origins and Background (New York: Macmillan, 1944).
12. Zoltán Kántor, "The Concept of Nation in the Central and East European 'Status Laws,'" in Beyond Sovereignty: From Status Law to Transnational Citizenship? ed. Osamu Ieda and Balázs Majtényi (Sapporo, Japan: Slavic Research Center Hokkaido University, 2006), 37-51, at 41.
13. Bernard Yack, "The Myth of the Civic Nation," in Theorizing Nationalism, ed. Ronald Beiner (Albany: State University of New York Press, 1999), 103-18.
14. Xosé-Manoel Núñez, "What Is Spanish Nationalism Today? From Legitimacy Crisis to Unfulfilled Renovation (1975-2000)," Ethnic and Racial Studies 24 (2001): 737.
15. Taras Kuzio, "The Myth of the Civic State: A Critical Survey of Hans Kohn's Framework for Understanding Nationalism," Ethnic and Racial Studies 25, no. 1 (2002): 20-39.
16. Stephen Shulman, "Challenging the Civic/Ethnic and West/East Dichotomies in the Study of Nationalism," Comparative Political Studies 35, no. 5 (2002): 554-85.
17. Lowell Barrington, "Nationalism and Independence," in After Independence: Making and Protecting the Nation in Postcolonial & Postcommunist States, ed. Lowell Barrington (Ann Arbor: University of Michigan Press, 2006), 3-30, at 12.
18. For a useful summary of this critique, which notes in particular that ethnic and cultural components of identity ought to be distinguished because cultural nationalism is associated with more openness and toleration than ethnic nationalism, see Shulman, "Challenging the Civic/Ethnic and West/East Dichotomies."
19. The Hungarian law applied to all Hungarians in states neighboring Hungary except those in Austria. International and Hungarian actors explain the exclusion differently. According to the Council of Europe Rapporteur on the Hungarian Status Law, Austria as a member of the EU could not accept some of its citizens to be treated differently than others, and Hungary, given its association agreement with the EU, therefore had to exclude Austria's Hungarians from the scope of its Status Law. Hungarian officials, on the other hand, explained the exclusion of Austria to the Rapporteur by the fact that the Hungarian community in Austria is small and most of Austria's Hungarians preserved Hungarian citizenship. See Council of Europe Parliamentary Assembly, "Explanatory Memorandum to Resolution 1335 by Erik Jürgens" (2003), section C-c.
20. Stephen Deets, "Pulling Back from Neo-Medievalism: The Domestic and International Politics of the Hungarian Status Law," in Beyond Sovereignty, ed. Ieda and Majtényi, 17-36;
21. Stephen Deets, "The Hungarian Status Law and the Specter of Neo-Medievalism in Europe," Ethnopolitics 7, no. 2-3 (2008): 195-215.
22. Zsuzsa Csergõ and James Goldgeier, "Nationalist Strategies and European Integration," Perspectives on Politics 2, no. 1 (2004): 21-37.
23. Brigid Fowler, "Fuzzing Citizenship, Nationalizing Political Space: A Framework for Interpreting the Hungarian 'Status Law' as a New Form of Kin-State Policy in Central and Eastern Europe," in The Hungarian Status Law: Nation Building and/or Minority Protection, ed. Zoltán Kántor, Balázs Majtenyi, Osamu Ieda, Balázs Vizi, and Iván Halász (Sapporo, Japan: Slavic Research Center Hokkaido University, 2004), 177-238.
24. Among such instruments are the UN Charter, the Universal Declaration of Human Rights (Article 7), the International Covenant on Civil and Political Rights (Article 26), the International Convention on the Elimination of All Forms of Racial Discrimination (Article 1), the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 14), the Council of Europe Framework Convention for the Protection of National Minorities (Article 4), the 1997 European Convention on Nationality (Article 5), and the Strasbourg established case law.
25. Iván Halász, Balázs Majtenyi, and Balázs Vizi, "A New Regime of Minority Protection? Preferential Treatment of Kin Minorities under National and International Law," in The Hungarian Status Law, ed. Kántor, et al., 328-49.
26. The authors conclude that "the ambiguities of particular principles of international law, therefore, may open a space for divergent, even opposite interpretations of the same question" (ibid., 345).
27. The Venice Commission's Report, section D i-a.
28. "Günter Verheugen's Letter to Hungarian Prime Minister Péter Medgyessy (5 December 2002)," in The Hungarian Status Law, ed. Kántor et al., 585-86.
29. Council of Europe Parliamentary Assembly, "Resolution 1335 (2003): Preferential Treatment of National Minorities by the Kin-State: The Case of the Hungarian Status Law on Hungarians Living in Neighbouring Countries ('Magyars') of 19 June 2001" (25 June 2003), paragraph 10. Jürgens memorandum to the COE resolution likewise noted that the use of the concept of "nation" "can carry a suggestion of non-acceptance of those state borders which in fact divide the member of the 'nation.'" Council of Europe Parliamentary Assembly, "Explanatory Memorandum to Resolution 1335 by Erik Jürgens," section C-b.
30. The Venice Commission's report, section D a-i.
31. Ibid., section Da-ii. The Venice Commission recommended that, "should a kin-State require any kind of certification in situ, in the Commission's opinion the natural 'actors' would be the consular authorities which are duly authorized by the home-State, in conformity with the law, to perform official acts on its territory."
32. Ibid., section Da-ii. In 2003 the revised Hungarian law removed the power of diaspora organizations in determining foreign Hungarian status.
33. Iván Halász, "Models of Kin Minority Protection in Central and Eastern Europe," in Beyond Sovereignty, ed. Ieda and Majtényi, 269.
34. Articles 1 and 19 of the Hungarian Status Law as revised in 2003.
35. Article 1 of the 1999 Russian law "On Compatriots."
36. Article 3, part 3 of the 2000 Bulgarian law. In addition to church, according to the same article of the law, Bulgarian or foreign official state institutions or Bulgarian organizations functioning abroad can also issue documents attesting one's Bulgarian origin.
37. Slovak Law no. 70/1997, Article 1, paragraph 2, part 2.
38. Slovak Law no. 70/1997, Article 1, paragraph 3, part 4; and Fowler, "Fuzzing Citizenship," 233. In the absence of these documents, a written testimony from a Slovak organization was acceptable or, in the absence of such a testimony, the testimonies of at least two Slovak expatriates living in the same country as the applicant. Slovak Law no. 70/1997, Article 1, paragraph 3, part 5.
39. 2005 Slovak law, Article 1, section 2, paragraph 2.
40. 2005 Slovak law, Article 1, section 7, paragraph 3.
41. 2005 Slovak law, Article 1, section 2, paragraph 2.
42. 2005 Slovak law, Article 1, section7, paragraph 4.
43. 2004 Ukrainian law, "On Foreign Ukrainians," Article 1.
44. Cabinet of Ministers Resolution no. 1531 from 27 November 2004, "On the Issuance of Foreign Ukrainian Card." Text in H. H. Moskal, Pravovyi status zakordonnykh ukraintsiv (Kyiv, Ukraine: Vik, 2004), 95-104.
45. Oleksandr Kabachins'kyi, head of the Directorate on the Work with Foreign Ukrainians and on International Cooperation of the State Committee of Ukraine for Nationalities and Religion, confirmed that in practice, when the applicant does not have documents proving either family origin from the territory of Ukraine or Ukrainian ethnic origin, witness testimony or recommendation from a Ukrainian diaspora organization are acceptable. Author's interview, Kyiv, Ukraine, 20 July 2007.
46. President Putin's speech at the Congress of Compatriots, 11 October 2001, http://www.nasledie. ru/politvnt/19_44/article.php?art=24 (accessed 17 June 2009).
47. The Venice Commission's Report, section D a-ii. In the revised Hungarian law, instead of selfidentification and a recommendation of diaspora organization, the requirements for foreign Hungarian status are self-identification and either proficiency in the Hungarian language or registration by one's state of residence, church, or diaspora organization as being of ethnic Hungarian origin (Article 19 of the 2003 Hungarian law).
48. The UN Human Rights Committee General Comment no. 18 (Article 26) (37th session, 1989), quoted after Halász et al., "A New Regime of Minority Protection," 330, n. 8.
49. Article 4, paragraphs 2 and 3 of the Framework Convention.
50. The Venice Commission's Report, section D-d. This was the commission's interpretation of the European Court of Human Rights judgment on the "Belgian Linguistic Case" of 9 February 1967.
51. Ibid., section D-d.
52. Some commentators argued that the legal opinion of the Venice Commission that only in the educational and cultural spheres preferential treatment of minorities is acceptable was too narrow, given that Article 27 of the Framework Convention states that "adequate measures" aimed at promoting "full and effective equality of persons belonging to a national minority and those belonging to the majority" extend to "all areas of economic, social, political, and cultural right."
53. Halász et al., "A New Regime of Minority Protection," 331.
54. Ibid., 335-37.
55. The 1999 Russian law is a clear case of a status rather than benefits law, but in recent years it is becoming a benefits law as well, following the adoption in 2006 of a government on assistance to compatriots wishing to move to Russia.
56. Myra Waterbury, "Uncertain Norms, Unintended Consequences: The Effects of European Union Integration on Kin-State Policies in Eastern Europe," Ethnopolitics 7, no. 2-3 (2008): 219-21.
57. By contrast, Hungary's neighbors, in particular Slovakia and Romania, were concerned that the Hungarian Status Law, which in its original version granted employment benefits to kin minority, would negatively affect their labor markets.
58. Derzhavnyi Komitet u spravakh natsional'nostei ta relihii, "Zakordonni ukrainsti. Statystyka. Zakordonni ukraintsi v sviti," 10 April 2007, http://www.scnm.gov.ua/control/uk/publish/article?art_id=50252&cat_id=50220 (accessed 30 June 2009).
59. During the parliamentary debates of the law on foreign Ukrainians, speakers routinely cited the figure of 12 million-roughly one-third of Ukraine's population (see, for example, 28 November 2000 and 7 December 2000 debates). The figure of 20 million was cited during the 20 November 2003 debate.
60. Information from the Ukrainian Foreign Ministry Web site, http://www.mfa.gov.ua (accessed 12 April 2007).
61. Zsuzsa Csergõ and James Goldgeier, "Virtual Nationalism in Comparative Context: How Unique Is the Hungarian Approach?" in Beyond Sovereignty, ed. Ieda and Majtényi, 291.
62. The work on the law draft began in 1997, after the issue was raised at the Second World Forum of Ukrainians (A. A. Popok, "Problemy unormuvannia pravovoho statusu zakordonnoho ukraiintsia," Derzhavne upravlinnia: teoriia ta praktyka 1 (2005), http://www.academy.gov.ua/ej1/txts/POPOK.htm (accessed 30 June 2009).
63. It took two years for the draft to reach the floor of the parliament on 20 November 2000 after the draft was submitted to the Rada on 3 November 1998. History of draft law no. 2214, http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=4868 (accessed 30 June 2009).
64. For example, the statement by Communist MP Yurii Solomatin during 20 November 2003 Rada debate.
65. At the end, the educational provision was omitted from the final text of the law after the law was vetoed by President Kuchma. Kuchma argued that this provision violated the law on education, which allowed foreigners to receive free education in Ukraine only on the basis of international bilateral agreements signed by the government and ratified by the Rada (Prezydent Ukrainy, "Propozytsii do Zakonu Ukrainy 'Pro pravovyi status zakordonnykh ukraintsiv,'" 13 December 2003). Nevertheless, the fact remains that the Rada was willing to support the law with this clause after rejecting earlier drafts that did not contain this clause.
66. This understanding of the nation was elaborated by Rukh's program already in the late Soviet period. See Narodnyi Rukh Ukrainy za Perebudovy, Prohrama. Statut (Kyiv, Ukraine: Smoloskyp, 1989), 18.
67. For an elaboration of the Ukrainian Communists' position on the national question, see article on the subject by the leader of the Ukrainian Communist Party: Petro Symonenko, "Natsional'na idea: mify i real'nist," Holos Ukrainy, 21 March 1996, 7, 9-10.
68. The Communist Party advocated a union state between Ukraine and Russia "with no ifs or buts," as Wilson put it. Andrew Wilson, The Ukrainians. Unexpected Nation (New Haven, CT: Yale University Press, 2000), 189-90.
69. The Socialists tried to balance between supporting a union with Russia and state independence of Ukraine, and this ambiguity has been present in the party's public statements. For example, the head of the party, Olexander Moroz, has argued that the Socialist Party has been "a party of Ukrainian statehood since the day the party was born" (Oleksii Haran and Oleksandr Maiboroda, eds., Ukrains'ki livi: mizh leninizmom i sotsial-demokratieiu [Kyiv, KM Academia, 2000], 35),
70. but he also advocated for a "Union of Sovereign Socialist Republics (States)" that is to be based on the "Slavic core-unity of Ukraine, Russia, and Belarus" (ibid., 77).
71. During the 28 November 2000 debate, Communist MP Volodymyr Pustovoitov, who opposed the draft, and MP Ihor Ostash, one of the authors of the draft, exchanged these constitutional arguments.
72. Taras Kuzio, "Nationalism in Ukraine: Towards a New Theoretical and Conceptual Framework," Journal of Political Ideologies 7, no. 2 (2002): 133-61;
73. and Taras Kuzio, "Kravchuk to the Orange Revolution: The Victory of Civic Nationalism in Post-Soviet Ukraine," in After Independence, ed. Barrington, 187-224.
74. Ronald Grigor Suny, "Conclusion. Nationalism, Nation-Making, and the Post-Colonial States of Asia, Africa, and Eurasia," in After Independence, ed. Barrington, 279-96.
75. Draft law no. 2214, "On Legal Status of Foreign Ukrainians," dated 15 September 2000. Text at http://www.zakon.gov.ua/ (accessed 15 December 2000).
76. Stephen Shulman, "The Contours of Civic and Ethnic National Identification in Ukraine," Europe-Asia Studies 56, no. 1 (2004): 39;
77. and Rawi Abdelal, "Memories of Nations and States: Institutional History and National Identity in Post-Soviet Eurasia," Nationalities Papers 30, no. 3 (2002): 469.
78. Kuzio, "Nationalism in Ukraine," 145;
79. and Oxana Shevel, "Nationality in Ukraine: Some Rules of Engagement," East European Politics and Societies 16, no. 2 (2002): 401.
80. 18 September 2001 Rada debate.
81. Ostash made a similar argument on 18 September 2001, 20 September 2001, and 17 January 2003.
82. Verkhovna Rada Ukrainy, "Porivnia'lna tablytsia do proektu zakonu Ukrainy 'Pro pravovyi status zakordonnykh Ukraintsiv,'" (Document 1306), 12 December 2003, paragraph 7.
83. Ibid., paragraph 17.
84. On this point, see, for example, Wilson, The Ukrainians, 185.
85. Statement by MP Stepan Harvrysh during 22 March 2001 Rada debate.
86. Iavorivsky actually proposed to adopt the law on immigrants from Ukraine instead of the law on foreign Ukrainians, but his idea was fully incorporated in the Ostash's amendment that added origin from Ukraine, in addition to Ukrainian ethnicity, to the definition of the diaspora laws' target group.
87. Article 1, emphasis added.
88. The Crimean Tatar representative, MP Refat Chubarov, spoke in support of the law during the 20 November 2003 debate. During the first debate of the draft, on 28 November 2000, Chubarov argued that the law needs to be such that it "extends not only to ethnic Ukrainians outside Ukraine, but also to representatives of other ethnic groups for whom Ukraine is the territory of their ethnic origin," in particular Crimean Tatars, Karaims, and Krymchaks who do not have homeland states outside Ukraine. Crimean Tatars have long maintained that these three groups are indigenous peoples rather than a national minority in Ukraine because they do not have a homeland state outside Ukraine.
89. Evident if one compares draft no. 2241 and no. 7254. The latter was discussed in the Rada on 20 September 2001.
90. MP Ihor Ostash, one of the authors of draft 2241, when presenting the draft for debate on 28 November 2000.
91. MP Volodymyr Moiseienko, 28 November 2000 debate. Also MP Oleksandr Charodeiev during 28 November 2000 debate; and MPs Volodymyr Aleksev, Olena Mazur, Volodymyr Tereshchuk, and Yurii Solomatin during 18 September 2001 debate. The left was hostile not only to western diaspora organizations but for Ukrainians from the western diaspora more generally, most of whom are from western regions of Ukraine and are generally anti-Soviet as well given the history of their relations with Soviet power. Communist MPs objected against granting status to "Americans, Canadians, and so forth. who run away during difficult times for the motherland" (MP Olena Mazur during 18 September 2001 debate; also MP Yurii Solomatin).
92. For a full list of Kuchma's objections to the law, Prezydent Ukrainy, "Propozytsii do Zakonu Ukrainy 'Pro pravovyi status zakordonnykh ukraintsiv.'"
93. Council of Europe Parliamentary Assembly, "Resolution 1335 (2003): Preferential Treatment of National Minorities by the Kin-State."
94. Prezydent Ukrainy, "Propozytsii do Zakonu Ukrainy 'Pro pravovyi status zakordonnykh ukraintsiv.'"
95. At the same time, the self-identification requirement was not totally purged from the law because Kuchma objected to only one of the two articles of the law containing it. In his letter to the Rada sent with the vetoed law, Kuchma recommended removing self-identification from the definition of foreign Ukrainian in Article 1, but "Ukrainian self-identification" is also listed under conditions for foreign Ukrainian status in Article 3. Kuchma's veto did not mention Article 3, and the self-identification requirement was not removed from this article.
96. This is acknowledged by the Council of Europe Parliamentary Assembly in its Resolution on the Hungarian Status Law (Council of Europe Parliamentary Assembly, "Resolution 1335 [2003]: Preferential Treatment of National Minorities by the Kin-State").
97. Alfred Stepan, "Ukraine: Improbable Democratic 'Nation-State' but Possible Democratic 'State- Nation'?" Post-Soviet Affairs 21, no. 4 (2005): 296.