Law & Ethics of Human Rights

Law & Ethics of Human Rights Volume 2, Issue 1

2008

Article 7

D EMOGRAPHY AND H UMAN R IGHTS

Comparative Citizenship: A Restrictive Turn in Europe and a Restrictive Regime in Israel: Response to Joppke Sammy Smooha∗

∗

Haifa University

c Copyright 2008 The Berkeley Electronic Press. All rights reserved.

Comparative Citizenship: A Restrictive Turn in Europe and a Restrictive Regime in Israel: Response to Joppke Sammy Smooha

Abstract Smooha argues that Joppke’s thesis in his paper on comparative citizenship in Europe—there is no restrictive turn in citizenship and immigration laws and practices in Europe—is questionable. This is true not only for the pre-enlargement 15 EU countries during the years 1980-2006 under Joppke’s study, but also for the post-enlargement 27 EU countries. When the time range is broadened to the post-1945 period, it is clear that the historical trend of liberalization has come to an end in Europe and this is in spite of Europe’s dire need of immigrants and the great desire of non-Europeans to immigrate to Europe. Europe is particularly fearful of Moslems, Arab Moslems, and Black Africans. Nevertheless, the comparison between Israel and the EU countries can put the discussion on Europe in perspective. Israel can be representative of non-European countries that claim to be Western or European countries that are latecomers to the West. When these countries are compared to the 15 EU countries, as described and analyzed by Joppke, it is evident that the EU core is liberal and Israel and non-core European countries are not liberal in their laws and practices. EU laws on immigration and naturalization are motivated only partially by ethnicity while those of other countries are more shaped by ethnic considerations and those of Israel are mainly determined by ethnicity and ethnicity-based fear. According to Smooha the EU might move in Israel’s highly restrictive direction when it feels that its Western civilization, national cultures, and internal security are more significantly and increasingly threatened by non-European immigrants and their descendants.

Smooha: Comparative Citizenship

COMPARATIVE CITIZENSHIP: A RESTRICTIVE TURN IN EUROPE AND A RESTRICTIVE REGIME IN ISRAEL: RESPONSE TO JOPPKE

Sammy Smooha* Citizenship in Europe raises two key issues: One is the nature of the restrictive trend in Europe; the other is the use of Europe as a standard to evaluate citizenship regimes and trends in other countries, especially countries, like Israel, whose citizens and elites usually view themselves as and wish to be Western.

INTRODUCTION: STATEMENT OF THE ISSUE In his paper on comparative citizenship in Europe, Christian Joppke1 discusses citizenship and immigration laws in the pre-enlargement 15 European Union countries. He makes two types of comparison: a synchronic comparison between these 15 states today and a diachronic paper between the 1980 baseline year and the post-2000 years. The comparison focuses more on the diachronic comparison, aiming to answer the question: Is the historical trend of change “a restrictive turn”? In order to establish the historical trend of change, Joppke spells out four types of restrictions and discusses each for the years of 19802006. These restrictions are a decrease in the use of the non-ethnic jus soli criterion; a reduction of family union immigration; a conditioning of naturalization on the achievement of integration or assimilation (toughening the criteria for naturalization: language command, civics *

Dean, Faculty of Social Sciences, Haifa University. Christian Joppke, Comparative Citizenship: A Restrictive Turn in Europe? 2 L. & ETHICS HUM. RTS. 128 (2008). 1

Published by The Berkeley Electronic Press, 2008

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Law & Ethics of Human Rights, Vol. 2 [2008], Iss. 1, Art. 7

tests, acquisition of liberal values); and the strengthening of ties with expatriate communities abroad by allowing their members to acquire additional citizenship without losing their original citizenship, a step that indirectly hurts immigrants and their descendants by limiting their access to citizenship. The paper is rich in details about these restrictions, especially the third one (greater demands for naturalization), for many of the 15 EU countries. Along with the review of the restrictions, Joppke also looks into the liberalizations in each area. The bulk of the paper is descriptive-empirical, namely, documentation of the change and interpretation of the evidence in reference to the question of the existence or absence of a restrictive turn. There is a minor analytical section that discusses the causes of change. The method applied in the paper is illustrative and interpretative rather than systematic—i.e., country by country, comparisons over time. This method makes it difficult to reach a definitive conclusion unless the evidence is clearcut, a rare situation in the social sciences. The task is made even more difficult because the author discusses liberalizations along with restrictions and reaches a conclusive generalization regarding the overall balance sheet of citizenship legislation in the 15 EU countries. The paper falls within the mainstream of social science writing— purposely lacking a normative dimension. Joppke neither passes explicit judgments nor offers an opinion on the legislation he mentions. Yet with that said, there is a normative component to his arguments; considerations of equality, inclusiveness, and fairness implicitly lurk in his interpretations.

I. THE EUROPEAN CASE Joppke’s departure point is that citizenship legislation in the EU, in the early 1980s, was based on liberal norms of equality and inclusiveness. One piece of evidence is Mark Morjé Howard’s http://www.bepress.com/lehr/vol2/iss1/art7

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“citizenship policy index” composed of three criteria of liberal citizenship laws: 1) jus soli is allowed; 2) length of residence required for naturalization is five or fewer years; and 3) dual citizenship is tolerated.2 The 15 EU countries are supposedly liberal on these criteria, although they differ from each other. The most liberal countries are Belgium, France, Ireland, and Great Britain, most former colonial powers with experience in foreign populations and long democratic traditions. The least liberal are Austria, Spain, Germany, Luxembourg, Denmark, and Finland. Located in the middle are Greece, Italy, Sweden, the Netherlands, and Portugal. Howard shows that the 15 EU countries have remained liberal or even become more liberal since the early 1980s. Joppke criticizes Howard for applying only crude tests of these criteria and reviews more refined indicators, revealing both restrictions and liberalizations, but arriving at a similar conclusion and agreement with Howard—there was no overall “restrictive turn” in Europe. Joppke reviews in great detail the changes made in legislation during the 1990s and 2000s and finds a mixed bag of legislative amendments. He concludes that the thesis or suspicion that there is a restrictive turn must be rejected and that the changes in the citizenship legislation were made while preserving a liberal or even liberalizing framework. He insists that the pre-2004 EU was liberal and has remained liberal in its legislative handling of immigrants, emigrants, and their descendants. Joppke bases his uncritical view of the EU on the following evidence: First, the use of the jus soli criterion, which favors locallyborn children of immigrants, was changed in two ways: It was made conditional on permanent residence of a parent (restriction) and was extended as a right to second generation immigrants (liberalization). Second, certain restrictions were introduced regarding the right to citizenship of foreign spouses in order to prevent fictitious “marriages of convenience” and marriages for immigration. Yet, the number 2

Mark Morjé Howard, Comparative Citizenship: An Agenda for Cross-National Research, 4 PERSPECTIVES ON POL. 443 (2006). Published by The Berkeley Electronic Press, 2008

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of marriages to foreigners increased because second generation immigrants and citizens in Europe came of age. Third, more strict tests of integration and assimilation were imposed for naturalization (restriction); however these tests are individual-level rather than group-level and can be passed by all individuals regardless of ethnicity (liberalization). For instance, the Netherlands in 2000 imposed a tough, mandatory five-hour exam for testing proficiency in reading, writing, and speaking of the Dutch language. This new restrictive requirement aims to ensure civic integration, can be met individually, and does not disqualify any ethnic or racial group. And fourth, ties with co-ethnic expatriates who live permanently abroad were strengthened by removing the ban on double citizenship (potential restriction for immigrants), but in most cases this measure was also extended to immigrants by allowing them to naturalize without renouncing their original citizenship (liberalization). Joppke interprets the balance of these mixed legal amendments as lack of a restrictive turn and as stable European liberalism. Joppke’s no-restrictive-turn conclusion should be reconsidered, however, in view of other considerations and developments. The trend of continued liberalization in the legislation of immigration and citizenship laws that the EU has steadily introduced since 1945 was slowed down, stopped, and even reversed by the new restrictions. What is new in the legislation is not ongoing liberalization but rather new restrictions. Some restrictions are grave. For instance, Luxemburg amended the citizenship law in 20013 to require passive knowledge of one of the three official languages (French, German and Luxembourgish) and a basic knowledge, supported by a certificate, of the difficult Luxembourgish language without provision of language instruction.4 3

Loi du 24 juillet 2001 portant modification de la loi du 22 février 1968 sur la nationalité luxembourgeoise, telle qu’elle a été modifiée. 4 Françoise Moyse, Denis Scuto, & Pierre Brasseur, Luxembourg, in ACQUISITION AND LOSS OF NATIONALITY POLICIES AND TRENDS IN 15 EUROPEAN COUNTRIES 367, 380 (Rainer Bauböck, Eva Ersbøll, Kees Groenendijk, & Harald Waldrauch eds., 2006). http://www.bepress.com/lehr/vol2/iss1/art7

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Some restrictions are primarily motivated by ethnicization. For instance, the “liberal” waiver of the double citizenship for nationals and their descendants residing permanently abroad and acquiring a foreign citizenship was motivated by the ethnic desire to strengthen ties with them, prevent their assimilation into other cultures, and entice them back in order to boost the ethnic majority in the homeland.5 It is not clear from the evidence presented by Joppke who is intended to be the primary beneficiary of the legislation allowing immigrants to have double citizenship—Europeans from other EU countries as opposed to East Europeans and non-European Moslems, Black Africans, and others. Moreover, irrespective of original intentions, the unintended consequence of the permission of double citizenship is the facilitation and increase of naturalization of European immigrants moving from one country to another in the EU. Restrictions on immigration and citizenship run counter to the ethos of multiculturalism to which most EU countries supposedly adhere.6 The restrictions constitute an additional indicator of the retreat of Europe from multiculturalism7 and contradict with the vital interests of most EU countries that need millions of immigrants to overcome the demographic deficit, fill the shortage of workers in some branches of the economy, and bolster the pension system. Since the mid 1970s these countries diminished the chances of immigration and naturalization of non-European immigrants while these immigrants

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Christian Joppke, Citizenship between De and Re-Ethnicization, 44 ARCHIVES EUROPEÉNNES DE SOCIOLOGIE 429 (2003). 6 BHIKHU C. PAREKH, RETHINKING MULTICULTURALISM: CULTURAL DIVERSITY AND POLITICAL THEORY (2000). 7 Christian Joppke, The Retreat of Multiculturalism in the Liberal State: Theory and Policy, 55 BRIT. J. SOC. 237 (2004); Will Kymlicka, Immigration, Citizenship, Multiculturalism: Exploring the Links, 74 POL. Q. 195 (2003). Published by The Berkeley Electronic Press, 2008

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could have helped appreciably ease the demographic problems in each country.8 The accession of ten countries in 2004 and two countries in 2007 makes the EU as a whole much less liberal in its immigration and citizenship laws because these new member states are much less liberal than the older member states. Estonia and Latvia are the most extreme among the new EU members. They do not even extend automatic citizenship to former Soviet nationals and their descendants arriving after 1940 and have enacted very restrictive naturalization laws. As a result over a fifth of their permanent residents are stateless or foreign nationals despite their strong desire to become citizens of these states.9 One important cause for the creation of the EU Enlargement Program was to stop dependence on non-European labor and immigration. “Second-rate” Europeans are better than non-Europeans. If this is the case, it is hard to accept the liberal and color-blind thesis that there is no restrictive turn of the EU if there is a crypto ethnic bias toward ethnic Europeans. A crucial reason for the failure of Moslems’ integration in the EU is the shallow nature of multiculturalism in Europe as a whole. The real tests of multiculturalism are formal recognition of specific minorities and, specific minority languages, and the extension of broad collective rights—especially the right to a separate, state-financed, compulsory 8

Hans-Werner Sinn, Europe’s Demographic Deficit: a Plea for a Child Pension System, 153 DE ECONOMIST 1 (March 2005); Philippe Durance & Michel Godet, Old Europe, New Challenges, 9 FORESIGHT 3 (2007). 9 Rogers Brubaker, National Minorities, Nationalizing States, and External National Homelands in the New Europe, in NATIONALISM REFRAMED: NATIONHOOD AND THE NATIONAL QUESTION IN THE NEW EUROPE 55-76 (1996); CAN LIBERAL PLURALISM BE EXPORTED? WESTERN POLITICAL THEORY AND ETHNIC RELATIONS IN EASTERN EUROPE (Will Kymlicka & Magda Opalski eds., 2002); Priit Järve, Re-Independent Estonia, in THE FATE OF ETHNIC DEMOCRACY IN POST-COMMUNIST EUROPE 61-79 (Sammy Smooha & Priit Jarve eds., 2004); Svetlana Diatchkova, Ethnic Democracy in Latvia, in THE FATE OF ETHNIC DEMOCRACY IN POST-COMMUNIST EUROPE 81-114 (Sammy Smooha & Priit Jarve eds., 2004). http://www.bepress.com/lehr/vol2/iss1/art7

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education for cultural and linguistic minorities. Indigenous minorities should qualify for these collective rights and immigrant minorities should also benefit from some collective rights.10 In 2007, most of the 27 EU states and all the various European conventions on protection of minorities do not meet these criteria. The liberalization framework based on tolerance, equality, and inclusiveness, Joppke claims to be prevalent in the EU in the 2000s, should be increasingly evident in respecting inter-group differences and in accommodating the growing demands of minorities for collective recognition and rights. European ideological multiculturalism does not meet these criteria. Only in the 2000s did the EU begin to experience the failure of Moslems’ integration and Islamic terrorism. Fears of Moslems and Islam are prime movers of future restrictions on immigration and naturalization of non-Europeans. It is expected that more restrictions on immigration and citizenship will be imposed with the spread of Islamic separation and incidents of terrorism in Europe. Restrictions already swept Europe in 2007. The following examples illustrate this point: the deportation of an Albanian immigrant girl from Kosovo that drew international attention to Austria’s very restrictive laws of immigration;11 the inability of the ruling parties in Belgium to agree on basic principles for a coalition government but rather only agreed on the tightening of immigration laws—new immigrants wishing to join their families have to prove earning a high income and naturalization

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See, e.g., the case of France, Elaine Thomas, Keeping Identity at a Distance: Explaining France’s New Legal Restrictions on the Islamic Headscarf, 29 ETHNIC & RACIAL STUD. 237 (2006); Roxane Silberman, Richard Alba, & Irène Fournier, Segmented Assimilation in France? Discrimination in the Labour Market against the Second Generation, 30 ETHNIC & RACIAL STUD. 1 (2007); and the case of the Netherlands, Ellie Vasta, From Ethnic Minorities to Ethnic Majority Policy: Multiculturalism and the Shift to Assimilationism in the Netherlands, 30 ETHNIC & RACIAL STUD. 713 (2007). 11 Mark Landler, An Immigrant Girl’s Plea Draws Austria’s Attention, N.Y. TIMES, Oct. 17, 2007. Published by The Berkeley Electronic Press, 2008

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requires an uninterrupted five year stay and command of one of the languages—French, Flemish, or German;12 and a new law in France that allows authorities to demand DNA tests from foreigners who ask to join their families.13 Yet, while Joppke’s view of a non-restrictive turn in the EU is questionable, it would seem credible when the EU is compared to nonEU countries. The situation in other countries is worse than in the EU. If Israel can be justly considered representative of countries that exist in the Western orbit, it foils the EU on questions of immigration and citizenship. Criticisms leveled against Joppke’s thesis would look less serious when non-EU cases are considered. Joppke is correct in making this point. He says that despite adverse demographic considerations, citizenship in Europe has remained “liberal, individual-centered rather than group-centered, and non-discriminatory. One realizes this, shocklike, if one compares Europe, say, with Israel, where long-standing preferences for Jews and recent restrictions on Palestinians are really driven by demography.”14

II. THE ISRAELI CASE There are conflicting views regarding Israel’s legislation on immigration and citizenship. In their book Israel and the Family of Nations, Alexander Yakobson and Amnon Rubinstein15 evaluate Israel’s laws, policies, and practices by comparing them to those of EU countries and international and European standards. They conclude that Israel does well and hence is not different from any European liberal democracy. 12

Dan Bilefsky, Bickering Belgians Find a Point of Unity in Toughening Borders, N.Y. TIMES, Oct. 10, 2007. 13 Agence France-Presse, France: Parliament Approves DNA Immigration Bill, N.Y. TIMES, Oct. 24, 2007. 14 Joppke, supra note 1, at 130. 15 ALEXANDER YAKOBSON & AMNON RUBINSTEIN, ISRAEL AND THE FAMILY OF NATIONS: THE JEWISH NATION-STATE AND HUMAN RIGHTS (2003) [in Hebrew]. http://www.bepress.com/lehr/vol2/iss1/art7

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I disagree.16 I view Israel as an extreme case of a democracy that applies exclusionary restrictions on immigration and citizenship. The main immigration law in Israel is the Law of Return17 that provides automatic entry and citizenship to Jews and their immediate relatives. Moreover, in order not to deter any Jew from coming to settle down in Israel, it allows multiple citizenships; it pursues a policy of encouraging Jewish immigration, strengthening ties with the Jewish Diaspora, and keeping Israeli citizenship by Jewish expatriates who live permanently abroad (in order to cease to be an Israeli citizen, one needs to get the permission of the Minister of Interior who usually refuses to do so if the applicant is an Israeli Jew living abroad). The complementary part of the Law of Return is lack of a repatriation law for the Palestinian Arab refugees and their descendants. The Entry to Israel Law and the Citizenship Law18—two long-standing laws enacted in the early 1950s—grant entry and immigrant status to non-Jews but the Jewish state usually denies immigration applications to foreigners, foreign workers, and asylum seekers. These laws have been used mostly by Arab citizens requesting family unification (2,000 persons per year). A new law amendment (enacted in 2003) severely restricts family unification of Arab citizens who marry spouses from the West Bank and Gaza Strip or any enemy country.19 The new restriction, officially presented as a security measure against infiltration to Israel of members of the

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For my critical review of the book, see Sammy Smooha, Jewish State and Jewish Democracy: A Review Article of Alexander Yakobson and Amnon Rubinstein’s Israel and the Family of Nations: Jewish Nation-State and Human Rights, 10 MISHPAT UMIMSHAL 13 (2006) [in Hebrew]. 17 The Law of Return 5710-1950, LSI 114 (1950) (Isr.), available at http://www. knesset.gov.il/laws/special/eng/return.htm (last visited Nov. 15, 2007). 18 The Citizenship Law, 1952, S.H. 95; The Entry into Israel Law, 1952, 6 LSI 28 (Isr.). 19 The Citizenship and Entry into Israel Law (Temporary Provision), 2003 S.H. 544. The law was passed on Aug. 6, 2003. Its validity was temporary and has since then been extended several times. Published by The Berkeley Electronic Press, 2008

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enemy, has unsuccessfully been challenged in the Supreme Court for violating a basic human right.20 These demographic laws and policies can be explained by three pivotal factors: (1) as a Jewish state, Israel does its utmost to preserve and augment its Jewish majority (Zionism as an ethnic nationalism); (2) Israel lives in a hostile environment of which the Arab minority is part (the exigencies of the Israeli-Palestinian and Jewish-Arab conflict); and (3) Israel has a large Arab minority (16.5% of the total citizen population)21 that is perceived as a strategic threat to its Jewish character. Regardless of what Israel officially declares (for instance, the severe restriction on the Arab right to live in Israel with a spouse from the occupied territories was justified on security rather than demographic grounds), all the aforementioned considerations are at work in the thinking and behavior of Israel and Israeli Jews. As a result Israel sees itself and behaves as a defensive democracy with a legitimate right to enact restrictive laws of immigration and citizenship and to impose surveillance over the Arab minority. There are very few countries in Europe in the same vulnerable Israeli situation or that apply such restrictive laws and policies. Germany is similar to Israel in some features, especially its law of return22 and

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Adalah-The Legal Center for Arab Minority Rights in Israel has actively challenged the Nationality and Entry into Israel Law that bans Arab family unification. In May 2006 a 6-5 majority of the High Court of Justice rejected a petition challenging the constitutionality of this law (see HCJ 7052/03 Adalah v. The Minister of Interior [May 14, 2006] (unpublished). See also the special report and petitions, available at http://www.adalah.org/eng/famunif.php (last visited Dec. 24, 2007). 21 According to official statistics, Arabs constituted 19.8% of Israel’s total population (1,413,300 out of 7,116,700) at the end of 2006; CENTRAL BUREAU OF STATISTICS, STATISTICAL ABSTRACT OF ISRAEL (2007), see especially Table 2.1), available at http://www1.cbs.gov.il/reader/ (last visited Dec. 27, 2007). If we exclude Palestinian Arabs of East Jerusalem who are overall non-citizen permanent residents, then the share of Arab citizens is 16.5%. 22 The German Basic Law, Section 116. http://www.bepress.com/lehr/vol2/iss1/art7

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self-perception as a defensive democracy23. To refer again to Estonia and Latvia, these countries are similar to Israel in declaring themselves as the homelands of an ethnic majority, denying citizenship to a very large segment of their Russian-speaking permanent populations, and creating hard to meet naturalization requirements.24 Yet, even when compared to these EU countries, Israel is by far an extreme case. It is an extreme case also in the fact that the special combination of the three causes underlying its laws and policies on immigration and citizenship simply does not exist in any contemporary EU country.

III. CONCLUSION Joppke’s thesis that there is no restrictive turn in citizenship and immigration laws and practices in Europe is questionable. This is true not only for the pre-enlargement 15 EU countries during the years 1980-2006 under Joppke’s study, but also for the post-enlargement 27 EU countries. When the time range is broaden to the post-1945 period, it is clear that the historical trend of liberalization has come to an end in Europe and this is in spite of Europe’s dire need of immigrants and the great desire of non-Europeans to immigrate to Europe. Europe is particularly fearful of Moslems, Arab Moslems, and Black Africans. The comparison between Israel and the EU countries can put the discussion on Europe in perspective. Israel can be representative of non-European countries that claim to be Western or European countries that are latecomers to the West. When these countries are compared to the 15 EU countries, as described and analyzed by Joppke, it is evident that the EU core is liberal and Israel and non-core European countries are not liberal in their laws and practices. EU laws on immigration and naturalization are motivated only partially by ethnicity while those of other countries are more shaped by ethnic considerations and those of

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Germany (§ 130 (3) of the Penal Code). Supra note 9.

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Israel are mainly determined by ethnicity and ethnicity-based fear.25 The EU might move in Israel’s highly restrictive direction when it feels that its Western civilization, national cultures, and internal security are more significantly and increasingly threatened by nonEuropean immigrants and their descendants. Joppke is, however, right in observing that the EU’s liberal tradition and legal framework are a shield against imposing sweeping restrictions on non-European immigrants and their descendants even if these countries and their majority populations will experience a clear increase in threat level. The EU is a post-national framework that infuses peaceful atmosphere, instills trust, enhances integration, and promotes inclusiveness between and within state members. These assets are bulwarks and reinforcers of liberal values and liberalization. Israel’s second-rate democracy, location in a strife-ridden region, and possession of a large, dissident, and enemy-affiliated minority do not have these built-in liberal immunizations and facilitators.26

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Israel is, however, more multicultural in practice than most EU countries because it specifically recognizes the Arabs as a religious, linguistic, and cultural (but not national) minority and provides them with a separate, state-financed, compulsory educational system in Arabic. 26 Sammy Smooha, The Model of Ethnic Democracy: Israel as a Jewish and Democratic State, 8 NATIONS & NATIONALISM 475 (2002). http://www.bepress.com/lehr/vol2/iss1/art7

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