Right of return

From Freepedia

The term Right of return reflects a belief that members of an ethnic or national group have a right to immigration and naturalization into the nation they consider their homeland. This belief is sometimes reflected in special consideration in a nation's immigration laws which facilitate or encourage the reunion of a diaspora or dispersed ethnic population.

Contents

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 conversial, especially where they are perceived to be at the expense of other people who want to immigrate.

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." This provision is consistent with the Declaration on Indepence 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".

Bulgaria

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"

Finland

The Finnish Aliens Act provides for persons from the Soviet Union who are of "Finnish origin" to receive permanent residence.

Germany

German law allows persons of German descent living in Eastern Europe (so-called Aussiedler, see Volga Germans) to return to Germany and acquire 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".

The historic context for Article 116 is the eviction, following World War II, of an estimated 9 million ethnic Germans from the non-German states of Central and Eastern Europe. Another 9 million Germans from eastern Germany, militarily taken over by Stalin in 1945, were expelled as well. These expellees and refugees (known as Heimatvertriebene) were given refugee status and documents and resettled by Germany. The article Federation of Expellees describes issues regarding their possible compensation.

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 Acqusition 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."

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 citizen.

The Citizenship (Amendment) Act 2003 and Citizenship (Amendment) Ordinance 2005 make provision for an ever 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.

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.

Israel

Jewish

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It has been suggested that Law of Return be merged into this article or section. (Discuss)

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 thereof. Zionists argue that ever since the destruction of the Second Temple in the year 70 CE, Jews have prayed three times a day for return to their ancestral homeland. This longing to return to the Land of Israel also became a major topic in Jewish literature and thought. In the second half of the 19th century, Zionism sought to make this longing a reality by encouraging and helping Jews from the diaspora return to the Land of Israel.

This argument is not without critics, who argue that many Zionists, then and now, were secular people, who did not pray three times a day for a return to Israel or for anything else. While religious Jews mentioned Jerusalem in their prayers, many also held it as an article of faith that the diaspora was ordained by God and would be corrected by the Messiah, and that efforts to "hasten the end," such as Zionist settlement efforts, were not in keeping with God's will. They also viewed the secular nature of the new Jewish society that Zionists were trying to build as harmful to Jews who participated in it.

The Balfour Declaration of November 2, 1917, is the first modern government document to propose Jewish right of return. 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 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 interred 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.

Palestinian

The term "Right of return", when applied to Palestinian Arabs, reflect a belief that Palestinian refugees and their descendants have a right to return to the homes they had possessed prior to the 1948 Arab-Israeli war and the Six-Day War. Several UN resolutions have called upon Israel to enable this to occur (under certain conditions), or provide compensation in lieu thereof.

Significantly, the UN maintains a seperate and distinct definition of the word "refugees" for Palestinians who left Israel in 1948 and/or 1967. Palestinian refugees from Israel are classed as individuals who left Israel and their descendents. This stands in contrast to the UN definition of refugee as it applies to all other displaced peoples, which only includes those individuals who were forced to flee (Not their descendents).

The question of whether or not Palestinians have a "Right of return" 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, the right of return was one issue on which the talks broke down. Barak was willing to offer the Palestinians a state taking in the Gaza Strip most of the West Bank, plus co-sovereignty over Jerusalem, but would not make any concessions on the right of return. Arafat for his part would not accept any settlement that did not offer at least some concessions on this issue.

Impact on Israel

If all the Palestinian refugees and their descendants (estimates range between 4 and 8 million people) were to settle within Israel this would lead to a demographic shift which would end Israel's status as a Jewish state. Some also argue that if a large proportion of the exiled Palestinians were to return, catastrophic overpopulation would result.

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 large majority of Jewish Israelis find this prospect unacceptable. They see the demand for a Palestinian right of return as merely another 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. A minority, however, believe that if Israel were one day to acknowledge a right of return, the ensuing changes might be positive for Israelis and Palestinians alike [1].

In June 2003, a survey of Palestinians living in the West Bank, Gaza Strip, Jordan and Lebanon found that only 10% stated that they would become residents of Israel if given a choice. This would amount to approximately 373,000 individuals (based on the population estimates used in the study) and does not include Palestinians living in other areas, such as North America, Europe, or Syria (which might bring the total to over 800,000). The majority said that rather than returning to live in Israel, they would prefer to live in a Palestinian state, either in an existing Palestinian area or in an area that becomes Palestinian as the result of a territorial exchange. These results are in stark contrast with Israeli public opinion, which believes that a much greater number of Palestinians would wish to live in Israel.

There would also be an immensely complex and expensive legal disputes over the ownership of property. Prior to 1948 Jews owned almost 9 percent of the land and the Palestinians around 21 percent. Palestinians who stayed in Israel owned 3 percent of the land, and kept ownership of it, while the remaining 18 percent owned by exiled Palestinians was often expropriated.

Other

A non-exhaustive list of other countries believed to have similar laws is Croatia, the Czech Republic, Poland, Hungary and Slovakia. Similarly, the Liberian constitution (currently defunct and being rewritten) allows only people "of Negro descent" (regardless of ethno-national affiliation) to beome citizens. Many of these laws appear to reflect a desire by governments to guarantee a safe haven to diaspora populations, particularly those assumed to be living under precarious conditions.

External links

Further reading

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