The Post-Communist Diaspora Laws

Oxana Shevel

In the 1990s, a number of post-Communist states adopted diaspora laws that defined the target group ethno-culturally, thus seemingly confirming the continued relevance of Hans Kohn’s distinction between ethnic Eastern and civic Western nationalism. This article, however, posits that while Kohn’s dichotomy may be valid, its related implications are often not. The ethnic content of the diaspora laws, and the content of ethnic nationalism behind them, is much more nuanced, and not all ethnically tinted diaspora polices are discriminatory or otherwise contrary to international standards. Using the case of the 2001 Hungarian Status Law and the European organizations’ reaction to it, the first part of the article draws attention to the often neglected fact that international standards do not ban ethnically based policies altogether but allow for some distinctions in treatment based on ethno-cultural criteria. The second part of the article focuses on the case of Ukraine and further challenges the accuracy of the civic-ethnic dichotomy by showing how the politics of the Ukrainian diaspora law was driven not by a clash between civic and ethnic nationalism but by a more complex tension between different variants of ethnic nationalism, a neo-Soviet imperial vision, strategic bargaining, and changes in electoral fortunes for unrelated reasons. The Ukrainian case also shows how, in addition to international norm diffusion, another—and rather counterintuitive—path towards internationally compliant diaspora legislation may be the presence of substantial domestic divisions on the national issue, which forces the elites to compromise on a less ethnic law.

The Post-Communist Diaspora Laws East European Politics and Societies Volume 24 Number 1 Winter 2010 159-187 © 2010 SAGE Publications 10.1177/0888325409353182 http://eeps.sagepub.com hosted at http://online.sagepub.com Beyond the “Good Civic versus Bad Ethnic” Nationalism Dichotomy Oxana Shevel Tufts University, Medford, MA, USA In the 1990s, a number of post-Communist states adopted diaspora laws that defined the target group ethno-culturally, thus seemingly confirming the continued relevance of Hans Kohn’s distinction between ethnic Eastern and civic Western nationalism. This article, however, posits that while Kohn’s dichotomy may be valid, its related implications are often not. The ethnic content of the diaspora laws, and the content of ethnic nationalism behind them, is much more nuanced, and not all ethnically tinted diaspora polices are discriminatory or otherwise contrary to international standards. Using the case of the 2001 Hungarian Status Law and the European organizations’ reaction to it, the first part of the article draws attention to the often neglected fact that international standards do not ban ethnically based policies altogether but allow for some distinctions in treatment based on ethno-cultural criteria. The second part of the article focuses on the case of Ukraine and further challenges the accuracy of the civic-ethnic dichotomy by showing how the politics of the Ukrainian diaspora law was driven not by a clash between civic and ethnic nationalism but by a more complex tension between different variants of ethnic nationalism, a neo-Soviet imperial vision, strategic bargaining, and changes in electoral fortunes for unrelated reasons. The Ukrainian case also shows how, in addition to international norm diffusion, another—and rather counterintuitive—path towards internationally compliant diaspora legislation may be the presence of substantial domestic divisions on the national issue, which forces the elites to compromise on a less ethnic law. Keywords: diaspora, nationalism, Ukraine, Hungary, minorities 1. Introduction The 2001 report by the European Commission for Democracy through Law of the Council of Europe (Venice Commission), “Report on the Preferential Treatment of National Minorities by Their Kin-State,” identified a growing trend towards the Author’s Note: The author would like to thank Laura Adams, Jessica Allina-Pisano, Henry Hale, Dmitry Gorenburg, and anonymous reviewer for useful comments on earlier drafts. 159 Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 160 East European Politics and Societies adoption of diaspora laws in post-Communist region.1 This trend started in the middle of the 1990s,2 when Slovenia led the way by adopting the parliamentary resolution “On the Slovenian Minorities in Neighboring Countries and the Duties of the Slovenian State in This Respect” in June 1996. In February 1997, Slovakia adopted a law on “expatriate Slovaks.”3 Romania followed suit by adopting a similar law in July 1998, followed by Russia in March 1999, Bulgaria in April 2000, Hungary in June 2001, and Ukraine in March 2004.4 A defining feature of diaspora legislation in the post-Communist states is that they all define the target group in ethno-cultural terms. The Slovenian resolution talks about “autochthonous Slovene minorities” in neighboring countries and their belonging to “a common Slovene cultural area.”5 The 1997 Slovak Act on Expatriate Slovaks rules that to be recognized as an expatriate Slovak one has to have “Slovak nationality or ethnic origin and Slovak cultural and language awareness.”6 The Bulgarian law defines a foreign Bulgarian as someone who has “at least one ancestor of Bulgarian origin” and who has “a Bulgarian national consciousness.”7 The Romanian law refers to “Romanian communities all over the world,” and although it is the only law that does not establish explicitly ethno-cultural criteria for who is to be considered Romanian, it states that budgetary resources for supporting Romanian communities are mainly to be used for education in Romanian cultural and artistic activities.8 The Russian law “On Compatriots” defines compatriots as “those who were born in the same state, who live there or used to live there, and who share a common language, religion, culture, traditions and customs, as well as their direct descendents.”9 The Ukrainian law defines foreign Ukrainians as those who do not have Ukrainian citizenship and who “have either Ukrainian ethnic origin or who originates from Ukraine.”10 Russian and Ukrainian laws thus also use territory as an eligibility criterion: Russian law specifically names tsarist Russia, the USSR, and the Russian Federation as states from which compatriots originate; while Ukrainian law refers to the territory of Ukraine. However, both laws define diasporas not exclusively by territory but also ethnoculturally, since they explicitly use ethnicity (in the case of Ukraine) and language and culture (in the case of Russia) as eligibility criteria. The ethno-cultural nature of the post-Communist diaspora laws seems to confirm the continued relevance of Hans Kohn’s distinction between “civic” Western and “ethnic” Eastern nationalism11 and has led commentators to conclude that “one may clearly observe the institutionalization of ethnocultural nation in CEE [Central and Eastern Europe] in the late 1990s.”12 This study, however, posits that a closer look at the content of the diaspora laws, the politics surrounding their adoption, and the international community’s reaction to the laws reveals that while East European nationalism may indeed be more ethnic, it is not necessarily threatening or discriminatory, as Kohn’s framework implies. The ethnic Eastern/civic Western nationalism dichotomy comes with a tendency to see Western nationalism as good—associated with tolerance, liberalism, and the overcoming of ethnic divisions—and Eastern nationalism as bad—more bellicose, Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 161 xenophobic, and authoritarian. Scholars of nationalism disagree about the analytical utility of Kohn-inspired ethnic/civic framework and its implications. Some reject it because of the normative biases inherent in it13 and/or because of its questionable empirical validity: pure civic nationalism “has yet to appear in any country of the world,”14 today’s Western nation-states have not always been “civic,”15 and there is strong support for civic nationalism and national identity in purportedly ethnic Eastern Europe.16 Others, however, maintain that since few typologies neatly match with realities, the civic/ethnic nationalism typology remains valuable as a “way to measure the national identity choices, and their consequences, in real cases.”17 This article engages with the civic/ethnic nationalism dichotomy, and the associated scholarly debate, by unpacking both the ethnic content of the diaspora laws and the content of ethnic nationalism that presumably leads to the adoption of such laws. It also argues that the content of ethnic post-Communist diaspora laws is much more nuanced than the civic/ethnic nationalism dichotomy posits. One of the critiques of the civic/ethnic nationalism dichotomy contends that too much is collapsed into an ethnic category, obscuring the fact that not all ethnically tinted policies are equally problematic or discriminatory.18 Following this line of inquiry, the first part of the article focuses on the international responses to the 2001 Hungarian Status Law (which was the most controversial of all diaspora laws and thus attracted the most international attention), with the goal of identifying the specific elements of these ethnic laws that the European bodies did and did not find objectionable. The analysis draws attention to the often-neglected fact that international standards do not ban ethnically based policies altogether but allow for some distinctions in treatment based on ethno-cultural criteria. The first part of this article discusses what ethnically tinted policies are and are not contrary to international legal standards. Given that international law and institutions view certain policies that treat ethnic groups differently as acceptable and others as not, how do international norms and pressures affect domestic politics of diaspora policy making? The Hungarian case, as the first part of the article will show, illustrates the power of international pressure, since Hungary ultimately revised its law to address objections raised by the Venice Commission. The second part of the article focuses on the case of Ukraine, the latest postCommunist state to adopt a diaspora law. The Ukrainian case offers rich material for examining both the domestic politics of nation-building—given that the law was highly contested, failing to clear even the first reading in the parliament multiple times before being finally adopted—and the impact of international actors and normative diffusion—given that the Ukrainian law was adopted after the Venice Commission issues its report on the Hungarian law. Indeed, close analysis of the politics of the Ukrainian diaspora law case yields several important lessons. First, it shows how domestic conflict over the Ukrainian diaspora law was more complex than a clash of ethnic and civic nation-building projects. The “ethnic” side was internally diverse, and its alternative was not a civic nation-building project but a neo-Soviet imperial Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 162 East European Politics and Societies vision. The second lesson to be drawn from the Ukrainian case is that internationally compliant domestic legislation may arise out of divisive politics of national identity rather than out of international pressures or normative diffusion. Although Ukraine ended up modifying the same provisions in its law that the Council of Europe found objectionable in the Hungarian case, these changes were driven solely by domestic dynamics, as the article will demonstrate. Finally, the Ukrainian case also shows how domestic developments unrelated to ethnicity can dramatically impact state ethnic policies: the electoral weakening of the left in Ukraine was the main factor that enabled the passage of the law in 2004, illustrating how ethnic politics can change for exogenous reasons. 2. Post-Communist Diaspora Laws Meet International Standards Diaspora laws by their very nature have the potential to come in conflict with the international norms in at least two ways. First, diaspora laws challenge the principle of state sovereignty by regulating the status of individuals and groups who reside on the territory of other states and who are neither citizens nor residents of the legislating state. For their attempt to regulate the status of communities outside the borders of the legislating state, diaspora laws—in particular the 2001 Hungarian law that legally recognized a Hungarian nation that extended into neighboring states and granted substantial benefits and subsidies to some 3 million ethnic Hungarians living in Croatia, Romania, Serbia, Slovakia, and Ukraine19—have alternately been called a return to the medieval pre-Westphalian world of overlapping authority and multiple loyalties,20 a creation of “transsovereign nations,”21 and a creation of “fuzzy citizenship.”22 Second, diaspora laws can clash with international legal norms that prohibit ethnic discrimination. A number of international legal instruments to which most postCommunist states are party prohibit ethnic and racial discrimination.23 Diaspora laws that define the target group in ethno-cultural terms grant those who are subject to the laws rights and benefits not granted to foreigners of other ethnicities. This seemingly goes against the nondiscrimination principle enshrined in these international instruments. Both of these implications—sovereignty and nondiscrimination—were at the forefront of the international debate about the 2001 Hungarian Status Law. The outcome of this debate, however, revealed that diaspora laws do not necessarily violate the principle of state sovereignty and that under the international law not all ethnically differentiated policies are discriminatory. Diaspora Laws versus the Principle of State Sovereignty With regards to state sovereignty, the international law contains both the principle of the inviolability of territorial sovereignty and that of a people’s and a nation’s right Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 163 to self-determination, and scholars stress that “the contradictory application of these two principles has not yet been unambiguously clarified under international law.”24 The legal opinion of the Venice Commission on the Hungarian Status Law stated that “a mere fact” that a piece of legislation addresses “foreign citizens does not . . . constitute an infringement of the principle of territorial sovereignty,” and that only an exercise of state power on the territory of the other state without that state’s consent violates the principle of sovereignty.25 The opinions of the European Commission, of the Council of Europe’s Parliamentary Assembly, and of the Venice Commission detail specific elements of the diaspora laws that can be considered as violating state sovereignty. The first such element is the language of national unity. Both the European Commission and the Council of Europe objected to the law’s reference, in the preamble and elsewhere, to the “Hungarian nation as a whole.” The EU Commission reasoned that this language “could be understood in such a way that Hungary is striving for establishing special political links, an aim which conflicts with the sovereignty and jurisdiction of the neighboring states. Therefore, such terms should be replaced by more culturally oriented ones.”26 The Council of Europe’s parliamentary resolution similarly noted that “there is a feeling that in these neighboring countries the definition of the concept of ‘nation’ in the preamble of the law could under certain circumstances be interpreted—through this interpretation is not correct—as non-acceptance of the state borders which divide the members of the ‘nation.’”27 Three other elements in the Hungarian Status Law that the Venice Commission found objectionable, on the grounds that they violated state sovereignty, were the provision of benefits under the law on the territory of a foreign state without explicit consent of the state in question, the power the law granted to Hungarian organizations in foreign states, and, most surprisingly, reliance on self-identification as the criteria for granting status under the law. The first reservation was the most straightforward. The Venice Commission argued that “a State can legitimately issue laws or regulations concerning foreign citizens without seeking the prior consent of the relevant State of citizenship, as long as the effects of these laws or regulations are to take place within its borders only.”28 “If the law specifically aims at deploying is effects on foreign citizens in a foreign country,” the Venice Commission continued, “it is not conceivable . . . that the homeState of the individuals concerned should not have a word to say on these matters.” Thus, not diaspora laws as such, but only provisions of these laws that allocated benefits to status holders in their home state (rather than in the legislating state), would infringe on the principle of state sovereignty if the home state did not explicitly consent to these provisions. The Venice Commission’s reservations about the role of diaspora organizations was more nuanced. The 2001 Hungarian law ruled that an official “Certificate of Hungarian Nationality” was to be issued to applicants who were in a possession of a recommendation of “an organization representing the Hungarian national community Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 164 East European Politics and Societies in the neighboring country concerned” (Article 20). The Venice Commission objected to this practice, arguing that it amounts to one state exercising its power on the territory of another state without that state’s consent, since the legislating state grants “administrative, quasi-official functions to non-governmental associations registered in another country [which] constitutes an indirect form of state power: as such, it is not permissible unless specifically allowed.”29 At the same time, the commission did not argue that all and every role of diaspora associations in the statusdetermination process was inadmissible. In the opinion of the commission, it was acceptable for diaspora organizations to “provide information on precise, legally determined facts, in the absence of other supporting documents or materials if they are only entrusted with giving a non-binding informal recommendation for the consular authorities of the kin-State.”30 Finally, the Venice Commission’s reservations about reliance on the selfidentification of applicants as a criterion for granting status seems rather puzzling, as self-identification is arguably a more democratic way of determining group membership than ascriptive characteristics. The diaspora laws that, instead of relying on self-identification, spell out specific objective requirements include some combination of the following factors in their definitions: language, culture, identity, origin, religion, and participation in the social life of a given community.31 The Hungarian law places emphasis on language and membership in a diaspora organization: proficiency in the Hungarian language, registration by one’s state of residence or church in the state of residence, or membership in a Hungarian organization are requirements for foreign Hungarian status.32 The Russian law lists language, religion, cultural heritage, tradition, and customs among the criteria but neither emphasizes any particular one of these nor specifies ways to document that one fulfills these criteria.33 The Bulgarian law emphasizes religion rather than language as a criterion of Bulgarian origin, stating that Bulgarian origin can be verified by the documents issued by the Bulgarian Orthodox Church.34 To receive an Expatriate Slovak card, one needs to have “Slovak nationality or Slovak ethnic origin” and demonstrate “Slovak cultural and language awareness.”35 Under the 1997 law, Slovak nationality or ethnic origin was to be proven by documents confirming one’s birth, baptism, nationality, or permanent residence in the interwar Czechoslovak Republic, Czechoslovak Socialist Republic, or Czech-Slovak Federal Republic.36 Given this list of possible proofs, origin was apparently understood as either ethnic or territorial. The 2005 Slovak law made the definition more ethnic. Slovak expatriate status is now contingent on having “Slovak national awareness” and a “direct ancestor of Slovak ethnic origin.”37 Slovak ethnic origin is now proven by an “official document” that “contains a record of ethnic origin pursuant to the law of the state whose authority issued the certificate”;38 while “Slovak national awareness” is proven by “active demonstration of being part of the Slovak nation and recognition of values representing the Slovak language, Slovak cultural heritage and traditions,”39 which in turn is to be evidenced by the results of the applicant’s activity confirming his or her Slovak national awareness, Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 165 a written testimony of a compatriots’ organization, or, if there is no such organization, a written testimony of at least two Slovaks in the applicant’s home country.40 The Ukrainian law explicitly defines the term “origin” to mean either family origin from the territory of Ukraine (irrespective of ethnic origin) or Ukrainian ethnic origin defined as “one’s or one’s ancestors’ belonging to the Ukrainian nation (natsii) and one’s recognition of Ukraine as one’s ethnic fatherland (bat’kivshchyna svoho etnichnoho pohodzhennia).”41 An implementing instruction to the Foreign Ukrainians law specifies that ethnic Ukrainian origin can be proven either by documents such as the “birth certificate or other birth records of the person or his/her relatives” or, in the absence of documents, by written certification of at least three Ukrainian citizens or foreign Ukrainians testifying to the person’s ethnic origin. A supporting recommendation of a foreign Ukrainian organization of which the person/applicant is a member can also be submitted with the application.42 Reliance on self-identification is an alternative pathway to eligibility under the diaspora laws. Instead of spelling out specific requirements, some states make one’s recognition as a member of the diaspora contingent on self-identification of the applicant. The Russian law goes perhaps the furthest in this direction. It does not specify how the fact of one’s partaking in the “common language, religion, cultural heritage, traditions, and customs” is to be demonstrated or indeed what language, religion, or customs is considered “common.” The law also states that being a compatriot is a “matter of free personal choice” (Article 3), and Russian authorities have argued that the basis for compatriot status is “spiritual self-identification.”43 The 2001 Hungarian Status Law also relied on self-identification as an eligibility criterion, stating that the law applied “to persons declaring themselves to be of Hungarian nationality” (Article 1). Self-identification may seem a very democratic and nondiscriminatory way of determining national belonging, but the Venice Commission nonetheless recommended against self-identification as the main eligibility criterion for formal status, in favor of a set of objective markers for status determination. The commission reasoned that making self-identification the main basis for status allocation might give the determining state organs “discretionary power that . . . would risk becoming arbitrary.” The commission ruled that “it is preferable (even if it is not required by the international law) that the relevant legislation set out the exact criteria that must be employed in the assessment of national background. . . . In other words, the personal choice of the individual is a necessary but not a sufficient one for entitlement to specific privileged.”44 Diaspora Laws versus the Principle of Nondiscrimination In addition to challenging state sovereignty, diaspora laws can also clash with the international norms against ethnic discrimination. Diaspora laws that define the target group in ethno-cultural terms grant privileges on ethnic basis, while numerous Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 166 East European Politics and Societies international and European agreements explicitly prohibit discrimination on the basis of ethnic origin. However, the international law makes an important distinction (often overlooked by nonjurists) between preferential treatment and discrimination and prohibits preferential treatment based on ethnicity only if such a distinction in treatment amounts to discrimination. Thus, as the UN Human Rights Committee commented on the principles of discrimination set out in the 1966 International Covenant on Civil and Political Rights, “not every difference of treatment will constitute discrimination if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.”45 Likewise, the Council of Europe Framework Convention for the Protection of National Minorities, while prohibiting “any discrimination based on belonging to a national minority,” in the same article establishes that “adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to a majority . . . shall not be considered to be an act of discrimination.”46 The international human rights case law likewise establishes that differences in treatment “can be objectively and reasonably justified,” but that the “existence of a justification must be accessed in relation to the aim pursued (which much be legitimate) and the effect that the measure in question causes . . . (there must be a reasonable relation of proportionality between the legitimate aim pursued and the means employed to obtain it).”47 Under the international law, therefore, certain differences in treatment are allowed, particularly those that seek to combat disadvantages arising from being in a minority position. The key issue then becomes what policies targeting coethnics abroad can be considered as pursuing a “legitimate aim” and being “proportional” in their means relative to the aim pursued. In its opinion on the 2001 Hungarian Status Law, the Venice Commission tried to answer this very question. The commission concluded that benefits related to the support of minority education and culture are permissible, since they follow “the legitimate aim of fostering the cultural links of the targeted population with the population of the kin State.” The commission at the same time argued that “in order to be acceptable, the preferences accorded must be genuinely linked with the culture of the state, and proportionate . . . for instance, the justification of a grant of educational benefits on the basis of purely ethnic criteria, independent of the nature of studies pursued by the individual in question, would not be straightforward.”48 When Hungary amended its Status Law in 2003, it revised provisions on educational benefits in line with the Venice Commission’s recommendation. The amended law qualified all students and teachers in Hungarian-language schools, irrespective of their ethnicity, for grants established by the law. In light of the Venice Commission’s ruling that “in fields other than education and culture . . . preferential treatment might be granted only in exceptional cases,” the revised Hungarian law eliminated noncultural benefits such as access to employment, health insurance, and Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 167 welfare.49 With these international standards on acceptable and unacceptable ethnically based policies established, it is fitting to turn to the Ukrainian law and the domestic and international politics behind its adoption. 3. The Law on the Status of Foreign Ukrainians “Status” versus “Benefits” Diaspora Laws and the Puzzle of Contestation in Ukraine When examining and comparing the politics of diaspora laws, the distinction between “benefits” and “status” diaspora laws proposed by Halász becomes important.50 Halász classified diaspora laws into benefits laws (such as Bulgarian, Romanian, Slovenian, and Hungarian laws), which grant a substantial number of tangible benefits to status holders (most commonly in the areas of education, cultural development, and travel to the homeland state, and at times also in the areas of employment, health case, welfare, and citizenship acquisition), and status laws, which mainly regulate the legal status of those who are to be subject to the law (such as Slovak, Ukrainian, and Russian laws).51 It might be more accurate to characterize all diaspora laws as status laws, since they all define who is subject to the laws, while characterizing those laws that additionally grant substantial rights to the target group as benefits laws. Either way, the distinction between status and benefits diaspora laws is important since the politics of the issue is likely to be different depending on whether diaspora legislation has political and/or socioeconomic consequences in addition to symbolic and ideational ones. In Hungary, for example, the 2001 law was not only about the symbolic value of the ethnic kin issue created by the trauma of Trianon, which left millions of ethnic Hungarians on the other side of the Hungarian border, but also about party building and electoral strategy. The issue of ethnic kin was championed by FIDESZ party, which utilized the diaspora issue to gain popular support and increase its electoral fortunes, as well as to gain influence and resources in and through diaspora organizations.52 The Hungarian law also granted substantial benefits and subsidies to some 3 million people, adding socioeconomic dimension to the electoral and foreign policy considerations affecting the politics of the law. Finally, the law also impinged on the politics of Hungary’s EU accession process given the critical assessment of the original law by the European bodies. The Ukrainian law was different because it was only a status law that had few, if any, practical consequences either domestically or internationally. Unlike the Hungarian law, the Ukrainian law did not disproportionately affect neighboring states. The Ukrainian law was not specifically aimed at coethnics in the neighboring countries like Hungary’s law but, like most other diaspora laws, applied to “foreign Ukrainians” all over the world. Unlike in Hungary, in Ukraine the issue of foreign Ukrainians also did not become an electoral issue. Ukrainian political parties have Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 168 East European Politics and Societies Table 1 Rights of Foreign Ukrainians under Successive Drafts of the Law “On the Status of Foreign Ukrainians” Draft Law no. 2214 (rejected by Rada on 7 December 2000, 11 January 2001, and 22 March 2001) Draft Law no. 7254 (rejected by Rada on 20 September 2001) Draft Law no. 1306 (approved by Rada in second Draft Law no. and final reading 1306 (approved by on 20 November Rada during first 2003, vetoed by reading on 6 president on 13 February 2003) December 2003) Law no. 1582-IV (final text approved by Rada on 4 March 2004) Visa-free travel to Ukraine for up to 90 days No invitation 3-year visa Visa-free travel to Ukraine for up to 120 days Same Same Omitted Omitted Same Same No invitation student visa Same Same Immigration to Ukraine outside immigration quotas Right to refugee status Same Same No fee and no invitation 5-year visa Free higher education under special quotas Same Same Same Omitted Omitted Omitted Same Author’s analysis of successive drafts of the law, obtained at http://www.rada.gov.ua. frequently utilized “national” issues such as language and, to a lesser degree, citizenship during election campaigns, but the issue of foreign Ukrainians never became a campaign issue. Finally, unlike the Hungarian law, the Ukrainian law provided very few practical benefits to those who were subject to the law and thus did not have the potential to affect the economic interest of either the host states or Ukraine.53 The only meaningful privileges the law “On the Status of Foreign Ukrainians” gave to foreign Ukrainians were visa-free travel to Ukraine and the right to immigration to Ukraine outside immigration quotas (Table 1). After the law came into force, its practical impact was also minimal, as very few people took advantage of it. Even though Ukrainian diaspora abroad numbers many millions—10.2 million according to the Ukrainian government,54 or as many as 20 million by some estimates55—as of January 2007, just 1,315 people received foreign Ukrainian certificates.56 By comparison, by mid-2003 the Hungarian law resulted in the issuance of some 700,000 Hungarian certificates in Romania alone.57 All of this may explain why, unlike the Hungarian law, the Ukrainian law attracted little attention from neighboring states and European organizations, but it makes Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 169 Table 2 Vote for the Draft Law “On the Status of Foreign Ukrainians” (Percentage in Favor) 7 December 2000 11 January 2001 22 March 2001 22 March 2001 5 April 2001 20 September 2001 3 February 2003 20 November 2003 4 March 2004 Left (%) Right (%) Center (%) Unaffiliated (%) Total votes in favor 7 5 6 8 5 7 3 3 24 96 82 89 89 85 94 79 98 95 71 61 72 77 72 70 75 86 88 7 9 16 11 11 23 48 52 50 209 177 210 222 202 210 279 327 344 Calculated from the roll-call voting results available at the Ukrainian Parliament’s Web site at http://www. rada.gov.ua/plenar.htm. Percentage refers to percentage of total fraction members voting in favor (not percentage of those present during the vote voting in favor) because, under the Ukrainian Parliament’s rules of procedure, a legislative proposal has to get 226 votes, i.e., more than 50 percent of the total composition of the parliament (which is 450 MPs), regardless of how many MPs are present during the vote. intense domestic contestation over the law all the more puzzling. The Law on the Legal Status of Foreign Ukrainians was adopted in 2004 after multiple failed attempts in previous years. It took over two years from the time the draft was submitted to the Rada in 1998 for it merely to be included in the agenda and reach the floor.58 Between December 2000 and September 2001, the draft was rejected six times in the first reading, including after it was designated priority legislation by the president before the September 2001 vote (Table 2). Domestic controversy was not over economic costs of the law’s implementation, even though the left that opposed the law most vociferously occasionally used the economic argument: namely, that financing the law would take limited budget funds away from the needs of “pensioners, veterans, and invalids.”59 That economic costs were not the main controversy is evident, for example, from the fact that in November 20003 the Rada approved the draft that allowed the government to set quotas for free education of foreign Ukrainians in Ukraine (Article 4)—a provision that had economic consequences—while previously rejecting versions of the draft that did not have this clause (Table 1).60 The Ukrainian diaspora law was largely symbolic, and records of the law’s debates show that the symbolism of the law was precisely the bone of contention. The single most controversial issue was the definition of the target group of the law. Diaspora laws, even if they are only status and not benefits laws, must define the “kin” of the nation, and as such they go directly to the heart of nation-building: defining of the nation that gives legitimacy to the state. In Ukraine, competing political forces embraced different “images” of the nation, which resonated with different Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 170 East European Politics and Societies segments of the population and regions of the country. Since before independence, the two main political groups contesting the national question in Ukraine on ideological grounds have been the right (nationalists and national-democrats) and the left (Communists and their allies). They were also the two main camps that clashed over the diaspora law: the right championed the idea of a diaspora law and authored drafts that defined the target group ethnically and linguistically, while the left opposed the very idea of the law. The voting record in Table 2 shows that the strongest support for the law came from the right; that the ideologically amorphous center also supported the law, although not as strongly; and that the left overwhelmingly opposed the law. The left not only voted against the law each time it was put to the vote, but also tried to “disappear” the draft all together. In November 2000, Communist MP Valerii Pustovoitov tabled draft resolution “on unacceptability” (pro nepryiniatnist) of the draft law. The resolution failed to pass on 7 December 2000, gathering just 124 votes, well short of the 226 needed, but it evidenced the Communist opposition to the law as such. The position of the right and the left on the diaspora law stemmed from their position on the larger issue of Ukrainian nation- and state-building. The Ukrainian right imagined Ukraine as a multiethnic state, but one in which the Ukrainian ethnos was “the core” of the Ukrainian political nation.61 The right also saw Ukrainian state independence as a paramount value and was fearful of any policy measures or statesponsored discourses that served to blur the boundary between Ukrainian and Russian nations and Ukraine and Russia as states. The Ukrainian left, by contrast, embraced the Soviet-era myth of the common origin and continuity of fate of the three East Slavic people (Russians, Ukrainians, Belorussians) and imagined the Ukrainian nation as constituent members of the “Slavic-Orthodox civilization” and/ or a component of the single “Soviet people.”62 The law on foreign Ukrainians had direct implications for nation-building projects favored by the right and the left. Explicit acknowledgment in a law that ethnic Ukrainians outside Ukraine are of special concern to the Ukrainian sate served to strengthen the nation-building agenda of the right, since it affirmed the right’s “image” of the nation as having an ethnic Ukrainian “core.” By contrast, failure of the law all together served the interests of the Communists: if who is Ukrainian diaspora was not explicitly defined in the law, the ambiguity kept the border between Ukrainian and Russian nations blurred, which in turn facilitated both the argument that they constitute one nation and the prospect of a possible future political unification of the two states—something the left, in particular the Communist Party, openly advocated.63 The question of whether the diaspora law as such was legitimate could not be conclusively resolved by judicial means. The ambiguity of the international law as to whether preferential treatment on the basis of ethnicity constitutes discrimination or whether it is permissible under certain conditions was mirrored by the Ukrainian Constitution. The opponents of the law argued that the law on foreign Ukrainians was Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 171 contrary to Article 24 of the Ukrainian Constitution, which prohibits privileges and restrictions based on ethnicity, and Article 26, which grants all foreigners legally in Ukraine equal rights. Supporters of the diaspora law also evoked constitutional arguments, noting that Article 12 of the Ukrainian constitution specifically requires the Ukrainian state to provide for the satisfaction of the national, cultural, and linguistic needs of Ukrainians residing beyond the borders of the state, while Article 26, which prohibits privileges and restrictions based on ethnicity, allows for exemptions “established by the Constitution, laws or international treaties of Ukraine.” The diaspora law, its supporters argued, was going to specify precisely such exemptions.64 Without an unambiguous judicial solution, the fate of the law rested in the realm of politics. Parliamentary debates over the diaspora law show that the conflict over the law was more complex than a clash between civic and ethnic nation-building projects because no side in the controversy started from a position that can be characterized as representing a civic nation-building agenda. Some scholars of Ukraine have argued that all mainstream political forces in Ukraine are civic nationalists because they prioritize sovereignty while respecting minority rights and support an inclusive citizenship and voting rights.65 By defining civic nationalism in terms of support for inclusive citizenship and voting rights, these scholars reserve the ethnic nationalism label for the Ukrainian extreme right and Russian and Soviet extreme left, but others have argued that this conceptualization misclassifies variants of ethnic nationalism as civic.66 Because the theoretical border between ethnic and civic nationalism is not precise, the question of what exact policies fall in the ethnic and civic camps is indeed debatable. The Ukrainian diaspora law as eventually adopted combines both ethnic and civic elements, since it explicitly defines foreign Ukrainians either by ethnic or by territorial origin (Table 3). However, the original position of either the right, who championed the law, or the left, who opposed it, cannot be characterized as civic by any standard. As Table 3 shows, the three initial drafts, all tabled by the MPs from the right and center-right, defined foreign Ukrainians squarely ethnically and linguistically rather than civically. Draft law “On the Status of Foreign Ukrainians,” which was first discussed on the floor of the Ukrainian parliament in November 2000, was submitted by Ihor Ostash and Hennadii Udovenko, MPs from the rightist “Reforms and Order” and Rukh parties. Article 1 of the draft defined a “foreign Ukrainian” as someone who is not a citizen of Ukraine, resides outside Ukraine, has Ukrainian ethnic origin (ukrain’s, ke etnichne pohodzhennia), and preserves Ukrainian “cultural-linguistic self-identification” (kul’turno-movne samousvidomlennia). Ukrainian ethnic origin was further defined as the Ukrainian ethnicity (natsional’nist) of the person, or his or her direct ancestors, and the person’s recognition of Ukraine as his or her ethnic fatherland (bat’kivshchyna svoho etnichnoho pokhodzhennia). Ukrainian “linguistic-cultural self-identification” was defined as one’s knowledge about historical and contemporary attainments (nadbannia) of Ukraine and knowledge of Ukrainian language in the extent sufficient for communication.67 Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 172 East European Politics and Societies Table 3 Defining “Foreign Ukrainians” Draft Law no. 2214 (rejected by Rada on 7 December 2000, 11 January 2001, and 22 March 2001) Draft Law no. 7254 (rejected by Rada on 20 September 2001) Ukrainians who reside Same abroad constitute an inseparable part of Ukrainian ethnos. Foreign Ukrainian is a person who resides outside Ukraine, has Ukrainian ethnic origin (ukrains’ke etnichne pohodzhennia), preserves Ukrainian cultural-linguistic self-identification (kul, turno-movne samousvidomlennia), and is not a citizen of Ukraine Ukrainian ethnic origin Same is belonging of a person or his or her direct ancestors to the Ukrainian ethnicity (natsional’nist) and the person’s recognition of Ukraine as the fatherland of his or her ethnic origin (bat’kivshchyna svoho etnichnoho pohodzhennia) Draft Law no. 1306 (approved by Rada in first reading on 6 February 2003) Draft Law no. 1306 (approved by Rada in Law no. 1582-IV second and final reading (final text on 20 November 2003, approved by vetoed by president on Rada on 4 March 13 December 2003) 2004) Same Ukrainians who reside abroad constitute an inseparable part of Ukrainian people (narod). Foreign Ukrainian is a person who self-identifies as a Ukrainian, is a foreign citizen or stateless person, and who also has either Ukrainian ethnic origin or who originates from Ukraine Foreign Ukrainian is a foreign citizen or stateless person who has either Ukrainian ethnic origin or who originates from Ukraine Same Ukrainian ethnic origin Same is belonging of person or his or her direct ancestors to the Ukrainian nation (natsii) and the person’s recognition of Ukraine as the fatherland of his or her ethnic origin The Ukrainian left that opposed the law also did not represent a civic nationbuilding alternative. Some scholars of Ukraine see the Ukrainian left as promoting a nation-building agenda that is closer to the civic model than the one promoted by Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 173 Figure 1 Left factions’ vote on the draft law “On the Status of Foreign Ukrainians” (percentage in favor) 100 Socialists 90 80 70 60 50 Solidarity 40 30 20 10 Communists 0 00 7 1 1 n Ja 1- 1 -0 -0 c- e -D ar M 2- 2 1 -0 ar 2 M 2- 1 -0 pr A 5- 01 20 3 -0 p- e -S 6 eb -F 3 20 4 -0 -0 eb -F ar M 4- the Ukrainian right. While the right is ethnocentric, seeing the Ukrainian state and nation as having an ethnic Ukrainian “core,” the left is relatively more civic, since it sees the nation and the state as “fundamentally bi-ethnic, bi-lingual, and bi-cultural.”68 Others however contend that the left’s project is ultimately state-destroying rather than state-building: since the left’s image of Ukraine as part of a larger pan-Russian nation rejects the very idea of Ukrainians’ and Ukraine’s right to an independent existence from Russia, the left’s agenda is not an alternative state-building agenda for Ukraine’s continued existence as an independent state.69 The left’s position on the diaspora law offers support to the latter interpretation rather than to the former, at least with regard to the position of the Communist Party. Neither the Communists nor the Socialists proposed either an alternative law or amendments to the existing drafts that would define foreign Ukrainians more civically or at least biculturally. The difference between the Communists and the Socialists was that, while Communists opposed the law to the end, the Socialist Party eventually switched and voted in support of the final law that combined territorial and ethnic definition of the Ukrainian diaspora (Figure 1). Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 174 East European Politics and Societies Thus, it was not a clash between civic and ethnic nation-building projects that defined the politics of the Ukrainian diaspora law. Instead, three separate but related factors drove the politics of the law and eventually enabled its passage by a constitutional majority. The first factor was the ambiguity in the position of the Ukrainian right, which, although favoring a purely ethnic definition of the diaspora, was also open to a more civic one. The second was the electoral decline of the left, which, while independent from the diaspora law politics, dramatically changed the composition of the Rada after 2002 and enabled the passage of the law by constitutional majority. Finally, the right’s inching towards a more civic law, coupled with the left’s decline, moved the opportunistic center to support a less ethnic law and resulted in a constitutional majority backing for the law. The split within the left and the Socialists’ subsequent decision to support the final version of the law were an important development in the politics of nation-building in Ukraine, although this change in the Socialist position was not critical for the passage of the law, given the small size of the Socialist caucus. Ideology, Strategic Maneuvering, and Electoral Fortunes Records of the parliamentary debates over the law show how the right exhibited a range of views. While favoring an ethno-linguistic definition of diaspora as its first preference, many MPs—including an author of the law, Ihor Ostash—were open to a more civic definition, while those furthest to the right were less so. For example, after the provision requiring knowledge of Ukrainian language was dropped from the draft, MP Pavlo Movchan, head of the “Prosvita” Ukrainian language society, complained during the 18 September 2001 debate that the law “has been so emptied of its original meaning (yholoshchenyi) that all that is left is the title.”70 Similar sentiment was expressed by MP Andrii Shkil of the ultranationalist UNA party, who, while urging colleagues to vote for the law on 20 November 2003, at the same time stated that the draft could have been “better,” “stricter,” and “more high quality.” At the same time, the mainstream right was open to defining the Ukrainian diaspora politically (i.e., territorially) and not just ethnically. Ostash has argued repeatedly that that term “Ukrainian nation” in the law is used in the meaning of Ukrainian political nation. Already during the first reading of the law on 28 November 2000 Ostash argued as follows: “I fully agree with the thesis that those Ukrainians who left Ukraine but who are Greeks, Tatars, Germans, Jews, or Russians also should have the right to get foreign Ukrainian status. . . . We will stand for the formula that Ukrainian of Ukrainian descent will get legal status, that is to say, in the understanding of a unified (iedyna) political nation, irrespective of ethnic origin.”71 It was also Ostash who between the first and second readings of the law in 2003 proposed an amendment that changed the definition of foreign Ukrainian from “Ukrainian ethnic origin and Ukrainian cultural-linguistic self-understanding” to “Ukrainian ethnic origin or origin from Ukraine”—the definition that combined ethnic and civic elements and that Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 175 Table 4 Requirements for Foreign Ukrainian Status Draft Law no. 2214 (rejected by parliament on 7 December 2000, 11 January 2001, and 22 March 2001) Draft Law no. 7254 (rejected by parliament on 20 September 2001) Draft Law no. 1306 (approved by parliament during first reading on 6 February 2003) Draft Law no. 1306 (approved by parliament in second and final reading on 20 November 2003, vetoed by president on 13 December 2003) Law no. 1582-IV (final text approved by parliament on 4 March 2004) Ukrainian ethnicity (natsional’nist) or Ukrainian ethnic origin (etnichne pohodzhenna) and cultural-linguistic self-identification (kul’turno-movne samousvidomlennia) Knowledge of Ukrainian in the extent sufficient for communication Desire to have foreign Ukrainian status Same Same Ukrainian selfidentification and Ukrainian ethnic origin or origin from Ukraine Ukrainian ethnic origin or origin from Ukraine Omitted Omitted Omitted Omitted Same Same Same Being eighteen years old Being sixteen years old Same Same Written application expressing desire to have foreign Ukrainian status Same Same Same Same Lack of Ukrainian citizenship Same eventually became the law.72 Ostash also proposed an amendment removing “linguistic-cultural self-understanding” from the list of requirements for status, which was also accepted.73 Table 4 shows how requirements for the foreign Ukrainian status evolved across successive drafts. Though willing to incorporate a territorial definition of diaspora into the law, the right was nonetheless not willing to define the diaspora only territorially, and the combined ethnic and territorial definition in the final law was a compromise for the right. This is evident from the fact that, despite verbal assurances, the right did not make the written draft more explicitly territorial until 2003. In the face of unwavering opposition from the left, the right needed more votes from the ideologically amorphous centrist parties for the law. The centrist parties were not opposed to the diaspora law on ideological grounds, like the left, but nor were they ideologically Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 176 East European Politics and Societies Figure 2 Center factions’ vote on the draft law “On the Status of Foreign Ukrainians (percentage in favor) Labor Ukraine 100 90 NDP 80 Regions 70 60 SDPU(o) 50 40 30 0 7- 1 11 an -J 1 -0 -0 -0 c De ar -M 22 1 -0 ar -M 22 1 -0 5- r Ap 1 -0 20 - p Se 3 6 3 eb -F 20 4 -0 -0 -0 eb -F ar M 4- Note: NDP = National Democratic Party; SDPU(o) = Social-Democratic Party of Ukraine (united) committed to the law, like the right. Voting pattern of the centrist fractions depicted in Figure 2 shows that the center was true to its reputation of being ideologically amorphous and opportunistic.74 The center’s support for the law was highly inconsistent, ranging from less than 40 percent to 100 percent among different fractions and fluctuating, often dramatically, within each faction. Being composed of pro-presidential “parties of power,” the center’s support for the law was also affected by President Kuchma’s position. This likely explains why the center delivered its highest “yes” vote during the 22 March 2001 vote (on which day, incidentally, the draft came closest to being passed—just four votes short). The vote took place shortly before the Third World Congress of Ukrainians planned for August 2001 and, in the Rada, centrist MPs from the pro-presidential camp appealed to their colleagues to vote for the draft in view of the forthcoming congress.75 President Kuchma designated the law on foreign Ukrainians as priority legislation, possibly in the hope that the adoption of the law might improve his image among the Ukrainian diaspora in the west, tainted as it was by the “tapegate” scandal implicating him in the murder of opposition journalist Heorhii Gongadze. Electorally, however, supporting a diaspora law that benefited only ethnic Ukrainian was a risky Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 177 Table 5 Ukrainian Parliament Composition since 1990 (in percentages) Left Right Center Unaffiliated Total 1990 1994 1998 2002 53 27 6 14 100 43 16 34 7 100 39 11 42 8 100 19 32 46 3 100 Source for 1990-1998, Andrew Wilson, The Ukrainians. Unexpected Nation (New Haven, CT: Yale University Press, 2000 205; for 2002, data on composition of fractions as of 15 May 2002, calculated from the Ukrainian Parliament Web site, http://www.rada.gov.ua. Composition after initial fraction formation following each parliamentary election. strategy for the parties of power. These parties had traditionally competed with the left for the electorate in the south and east of Ukraine, where little could be gained and much lost if one’s opponents could credibly present one as “nationalist.” The gradual evolution of the right towards making the diaspora law less ethnic can thus be attributed to both the range of views within the right and its openness to a territorial and not exclusively ethnic definition of the diaspora, as well as to strategic rationalization. After the law failed to clear the first reading six times—even after some of the ethnic provisions, most notably language requirement, were relaxed—the need to make it still less ethnic, to attract enough of the centrist votes, was becoming apparent. The 17 January 2003 debate shows that the right also realized that it was in fact possible to simultaneously maintain the focus of the law on ethnic Ukrainians while making the definition of the diaspora more civic and increasing thereby support for the law. As MP Volodymyr Iavorivsky candidly stated during the debate, “If we expand the law to include, say, Russians who at some point left Ukraine, Jews, and so forth . . . then this law won’t meet any resistance. In any case the main ones will be Ukrainians—it is understandable, we are doing it for them—but if we increase the ethnic spectrum, I am sure this law will pass painlessly in the first and in the second readings.”76 The law was de-ethnicized most significantly by Ostash’s amendments submitted after the law finally passed in the first reading on 6 February 2003. At this point, the right may have compromised more than it had to. Draft no. 1306 comfortably passed in the first reading on 6 February 2003 with 279 votes, and it was identical to the one that was rejected earlier: linguistic-cultural self-identification was still a prerequisite for status, and foreign Ukrainians were defined ethnically and linguistically. The puzzle of the Rada’s approval of virtually the same draft it rejected six times in the past can be attributed to the changed composition of the Rada following the March 2002 parliamentary elections. As Table 5 illustrates, these elections produced Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 178 East European Politics and Societies a dramatic decline of the left. The left, which had controlled at least 40 percent of seats in the Rada in the preceding decade, got less than 20 percent of the parliamentary seats after the 2002 vote. Analysis of the reasons for this decline of the left is outside the scope of this article; either way, they had nothing to do with the diaspora law. The law was an issue debated solely at the elite level, and one that never achieved public resonance or became an issue in the electoral campaign. Nevertheless, the decline of the left had direct consequences for the fortune of the foreign Ukrainians law. Most obviously, the decline of the left reduced the numeric opposition to the law in the Rada by shrinking the side of the Communist faction. The decline of the left also allowed the centrist factions to support the law more forcefully than they were willing to do up until then. As Table 2 shows, during the 6 February 2003 vote, the center produced the second highest vote in favor among the seven rounds of voting on the law that had taken place by then. The reduced parliamentary presence of the left may have translated into a stronger “yes” vote by the center because centrist parties, which traditionally competed with the left for the electorate in the south and east of the country, could now vote with the right on the national issues without fear of losing votes to the leftist parties. Given that after the 2002 elections the “ethnic” law finally passed the first reading with a comfortable majority, the right may have compromised too much between the first and the second readings of the law in 2003. Be that as it may, the de-ethnicized diaspora law acquired a constitutional majority behind it when, on 20 November 2003, the Rada passed it in the second and final reading with 327 votes in favor. The law approved on 20 November 2003 differed substantially from the draft that was passed in the first reading in February 2003, as Tables 3 and 4 show. It no longer defined foreign Ukrainians linguistically, as cultural-linguistic self-identification and knowledge of Ukrainian language requirements were dropped from the text. Furthermore, in a profound departure from the earlier drafts, Draft no. 1306 added self-identification and territorial origin to the list of criteria for defining a foreign Ukrainian. A foreign Ukrainian was now to be defined as a foreign citizen or stateless person who self-identifies as Ukrainian and who also has either Ukrainian ethnic origin or who originates from Ukraine.77 Constitutional majority in support of the draft signified that the Ukrainian elite, in particular the right and the center, found a politically acceptable formula. Making either territorial origin or ethnic origin a prerequisite for foreign Ukrainian status allowed the nation to be simultaneously ethnically and civically defined. This still conformed to the image of the nation embraced by the Ukrainian right, whereby the Ukrainian political nation was envisaged with an ethnic Ukrainian “core,” as ethnic criteria were still present (albeit in a watered-down form). Making origin from the territory of Ukraine an alternative criterion for foreign Ukrainian status served the right’s interests too, as it affirmed and legitimized Ukraine’s territory and separate statehood—a great concern of the right. Territorial criteria also fostered identification Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 179 with the state on the part of national minorities, not least of politically important minorities such as Crimean Tatars, who have been politically loyal to Ukraine, but who would not have qualified for official status under the law if ethnicity alone were a criterion.78 What Role, if Any, for International Norms and Pressures? The legislative history of the Ukrainian diaspora law also allows for the evaluation of hypotheses about possible influence of international norms and/or pressures on the content of the law. As discussed above, among the provisions of the Hungarian Status Law that the Venice Commission found objectionable was the power the law gave to diaspora organizations when determining eligibility for foreign Hungarian status, and Hungary eventually dropped these provisions from its law. Ukrainian law underwent the same change. Under the original Draft no. 2214 (Article 4, part 2), one of the requirements for foreign Ukrainian status was the applicant’s work in a civic or religious organization of the Ukrainian diaspora, and a recommendation (dovidka-kharakterystyka) from the organization was to be submitted with the application for foreign Ukrainian status. The subsequent Draft no. 7254 no longer contained this clause. This identical change in Hungary and Ukraine happened for different reasons, however. If in Hungary it resulted from international pressures, in Ukraine it was a product of domestic politics. One reason why the change in Ukraine cannot be attributed to the diffusion of international norms was timing. The Venice Commission report on the Hungarian law was completed in October 2001, but the provision on a documented membership in a diaspora organization as a prerequisite for foreign Ukrainian status was withdrawn from the Ukrainian draft by September 2001, that is, before the Venice Commission report was issued.79 Furthermore, the authors of the draft stated already when presenting Draft no. 2241 for discussion in November 2000 that these provisions will be removed.80 The opponents of the diaspora law from the left forcefully objected to the provision on diaspora organization. Ukrainian diaspora organizations in the West have been traditionally anti-Soviet, and a number of Communist MPs spoke against giving influence to organizations that “financed the struggle with Soviet power on the territory of Ukraine.”81 The right readily conceded this provision, which reveals that supporters of the law did not perceive it as critical. Indeed, it did not impact the main purpose of the law—namely, to define the kin group of the Ukrainian state and the boundaries of the Ukrainian nation. Thus, while the removal of the provision on the diaspora organizations may have brought the Ukrainian law closer to the international standards as articulated by the Venice Commission, it resulted not from international norms diffusion but from domestic bargaining. The hypothesis about international norms diffusion can also be evaluated on the example of President Kuchma’s veto of the law. After the Rada passed the law in the second and final reading by constitutional majority on 20 November 2003, President Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 180 East European Politics and Societies Kuchma unexpectedly vetoed the law on 13 December 2003. The president objected in particular to the wording of the preamble that stated that Ukrainians abroad “constitute an inseparable part of the Ukrainian people (narod),” as well as to making self-identification as a Ukrainian a requirement for legal status.82 Kuchma argued that the preamble statement was contrary to the Ukrainian constitution, which defines Ukrainian people as citizens of Ukraine of all ethnicities. This objection was very similar to the objection of the Council of Europe to the preamble of the 2001 Hungarian law, which stated that “Hungarians living in neighboring countries form part of the Hungarian nation as a whole.”83 Without asking the lawyers who prepared the reasoning for the president’s veto it is impossible to say for certain whether Kuchma was aware of the Venice Commission opinion, but if he was, he did not try to use the authority of the Council of Europe to lend weight to his veto. Nowhere in Kuchma’s reasoning statement justifying his veto did he refer to the Venice Commission ruling on the Hungarian law. Kuchma’s other objections—to self-identification as a prerequisite for foreign Ukrainian status—was also similar to the Venice Commission’s recommendations to Hungary. However, here again domestic rather than international factors drove the change. The Venice Commission argued against making self-identification the main basis for status allocation because this could create arbitrariness by giving too much discretionary power to the state organs making formal status determination. Kuchma’s stated reason for removing the self-identification requirement from the foreign Ukrainian definition was very different. The president argued that, because the law did not specify whether the term “Ukrainian self-identification” was used “to denote ethnicity (natsional’nist) or the person’s belonging to the Ukrainian nation (natsia),” the self-identification requirement “may violate interests of such indigenous peoples of Ukraine as, for example, Crimean Tatars, who are not of Ukrainian ethnicity (natsional’nist) and who will not be able to obtain a foreign Ukrainian status if it is granted on ethnic (natsional’na) basis.”84 Kuchma’s argument in defense of Crimean Tatars is peculiar given that the Crimean Tatar representative in the Rada expressly supported the wording of the law that Kuchma vetoed. The president’s assertion that the law did not specify how it used the term “Ukrainian” can also be disputed—as it was by one of the law’s authors, Ihor Ostash, when the Rada discussed the president’s reservations to the diaspora law on 4 March 2004—since the law explicitly states that either territorial or ethnic origin can be grounds for granting foreign Ukrainian status. Regardless of Kuchma’s true motivations and possible misreading of the law, his objections brought the Ukrainian law closer to the standards for diaspora laws articulated by the Venice Commission,85 but again, the president’s motivations were rooted in domestic rather than international concerns. The Rada accepted the president’s recommendations and adopted the revised law on 4 March 2004 with 344 votes in favor. With the Socialist Party voting for the law this time, on the thirteenth year of independence Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 181 Ukraine ended up with a diaspora law supported by a broad constitutional majority of the political elite. 4. Conclusion Four conclusions with broader implication emerge from the analysis of the politics around diaspora laws in the post-Communist region in general and in Hungary and Ukraine in particular. First, the fact that post-Communist states—including those that otherwise pursue civic nation-building policies—rely on ethno-cultural criteria when it comes to defining their diasporas signifies that the nation is indeed often understood differently in the “old” and “new” Europe.86 Hans Kohn’s distinction between a political “Western” nationalism and an ethno-cultural “Eastern” nationalism is supported by the post-Communist states’ experiences with diaspora lawmaking. At the same time, the post-Communist states’ experience with diaspora lawmaking does not support the interpretation of ethnic Eastern nationalism as necessarily antidemocratic, aggressive, or discriminatory; nor are ethnically based diaspora laws necessarily contrary to contemporary international legal standards. Modern international law allows some room for preferential treatment based on ethnicity, and to be compliant with international standards, ethnically based diaspora (and other) laws need to be crafted in such a way that they do not infringe on specific principles, namely, the sovereignty of neighbors and the principle of nondiscrimination. To be nondiscriminatory, policies and laws that use ethnic criteria need to be “proportional” in their means: in the case of diaspora laws, this means limiting the scope of rights they are granting their coethnics to educational and cultural rights. In sum, ethnically based diaspora laws may be, but do not have to be, discriminatory. Alfred Stepan’s theoretical observation that policies that look like nation-state or nationalizing policies can be implemented softly, and facilitate the multiple and complimentary identities necessary for democracy and the respect of multiculturalism,87 finds its illustration in the example of Ukrainian diaspora law detailed in this article. An in-depth look at the other East Central European diaspora laws and policies may offer further illustrations. The importance of the international community in bringing ethnically based diaspora laws into compliance with international principles of sovereignty and nondiscrimination can be critical, as the Hungarian case showed. However—and this is the third lesson of this study—internationally compliant diaspora legislation can arise for domestic political reasons. The Ukrainian case clearly illustrates how this can be the case. Ukrainian lawmakers modified the same provisions that the Hungarian lawmakers did (taking issue, too, with the power of diaspora organizations in status determination procedure; with the use of self-identification as the Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 182 East European Politics and Societies basis for status, rather than objective requirements; and with wording that defined the diaspora as part of the nation), but they did so for domestic political reasons and not because of pressure from international actors or socialization into international norms. The Ukrainian case thus shows how, in addition to international norms diffusion, another—and rather counterintuitive—path towards internationally compliant diaspora legislation may be the presence of substantial domestic divisions on the national issue, which forces the elite to compromise on a more civic law. The forth and final lesson of this study is methodological. While not disagreeing with the arguments that ethnic/civic nationalism typology can be a valuable framework for categorizing ethnic politics and their causes and consequences, this study showed how unpacking the civic and ethnic labels and investigating the process by which a particular policy is adopted can offer more explanatory leverage than the typology itself. Such an unpacking in the case of Ukraine showed that none of the actors debating the diaspora law proceeded from a civic nationalism position, and that the content of the final law was not made more civic than the original draft because civic nation-building agenda won; instead, a combination of strategic compromises, electoral fortunes changed for unrelated reasons, and the presence of a range of views within the ethnic camp accounted for this evolution. The history of the Ukrainian diaspora law thus shows how the de-ethnicization of state policies can take place even when there are no civic nationalists advocating it, and a look beyond civic/ethnic dichotomy is needed to understand the process that enables such changes. Declaration of Conflicting Interest The author declared no conflicts of interest with respect to the authorship and/or publication of this article. Funding Research for this article was funded in part by the Davis Center for Russian and Eurasian Studies Post-Doctoral Fellowship. Notes 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 KinState” (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 Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 183 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. Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 184 East European Politics and Societies 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; Stephen Deets, “The Hungarian Status Law and the Specter of Neo-Medievalism in Europe,” Ethnopolitics 7, no. 2-3 (2008): 195–215. 21. Zsuzsa Csergõ and James Goldgeier, “Nationalist Strategies and European Integration,” Perspectives on Politics 2, no. 1 (2004): 21–37. 22. 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. 23. 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. 24. 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. 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). 25. The Venice Commission’s Report, section D i-a. 26. “Günter Verheugen’s Letter to Hungarian Prime Minister Péter Medgyessy (5 December 2002),” in The Hungarian Status Law, ed. Kántor et al., 585–86. 27. 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. 28. The Venice Commission’s report, section D a-i. 29. 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.” 30. Ibid., section Da-ii. In 2003 the revised Hungarian law removed the power of diaspora organizations in determining foreign Hungarian status. 31. Iván Halász, “Models of Kin Minority Protection in Central and Eastern Europe,” in Beyond Sovereignty, ed. Ieda and Majtényi, 269. 32. Articles 1 and 19 of the Hungarian Status Law as revised in 2003. 33. Article 1 of the 1999 Russian law “On Compatriots.” 34. 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. 35. Slovak Law no. 70/1997, Article 1, paragraph 2, part 2. 36. 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. Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 185 37. 2005 Slovak law, Article 1, section 2, paragraph 2. 38. 2005 Slovak law, Article 1, section 7, paragraph 3. 39. 2005 Slovak law, Article 1, section 2, paragraph 2. 40. 2005 Slovak law, Article 1, section7, paragraph 4. 41. 2004 Ukrainian law, “On Foreign Ukrainians,” Article 1. 42. 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. 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. 43. 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). 44. 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). 45. 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. 46. Article 4, paragraphs 2 and 3 of the Framework Convention. 47. 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. 48. Ibid., section D-d. 49. 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.” Halász et al., “A New Regime of Minority Protection,” 331. 50. Ibid., 335–37. 51. 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. 52. 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. 53. 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. 54. 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). 55. 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. 56. Information from the Ukrainian Foreign Ministry Web site, http://www.mfa.gov.ua (accessed 12 April 2007). 57. Zsuzsa Csergõ and James Goldgeier, “Virtual Nationalism in Comparative Context: How Unique Is the Hungarian Approach?” in Beyond Sovereignty, ed. Ieda and Majtényi, 291. Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 186 East European Politics and Societies 58. 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). 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). 59. For example, the statement by Communist MP Yurii Solomatin during 20 November 2003 Rada debate. 60. 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. 61. 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. 62. 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. 63. 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. 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), 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). 64. 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. 65. Taras Kuzio, “Nationalism in Ukraine: Towards a New Theoretical and Conceptual Framework,” Journal of Political Ideologies 7, no. 2 (2002): 133–61; and Taras Kuzio, “Kravchuk to the Orange Revolution: The Victory of Civic Nationalism in Post-Soviet Ukraine,” in After Independence, ed. Barrington, 187–224. 66. Ronald Grigor Suny, “Conclusion. Nationalism, Nation-Making, and the Post-Colonial States of Asia, Africa, and Eurasia,” in After Independence, ed. Barrington, 279–96. 67. 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). 68. Stephen Shulman, “The Contours of Civic and Ethnic National Identification in Ukraine,” Europe-Asia Studies 56, no. 1 (2004): 39; and Rawi Abdelal, “Memories of Nations and States: Institutional History and National Identity in Post-Soviet Eurasia,” Nationalities Papers 30, no. 3 (2002): 469. 69. Kuzio, “Nationalism in Ukraine,” 145; and Oxana Shevel, “Nationality in Ukraine: Some Rules of Engagement,” East European Politics and Societies 16, no. 2 (2002): 401. 70. 18 September 2001 Rada debate. 71. Ostash made a similar argument on 18 September 2001, 20 September 2001, and 17 January 2003. 72. Verkhovna Rada Ukrainy, “Porivnia’lna tablytsia do proektu zakonu Ukrainy ‘Pro pravovyi status zakordonnykh Ukraintsiv,’” (Document 1306), 12 December 2003, paragraph 7. 73. Ibid., paragraph 17. Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010 Shevel / The Post-Communist Diaspora Laws 187 74. On this point, see, for example, Wilson, The Ukrainians, 185. 75. Statement by MP Stepan Harvrysh during 22 March 2001 Rada debate. 76. 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. 77. Article 1, emphasis added. 78. 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. 79. Evident if one compares draft no. 2241 and no. 7254. The latter was discussed in the Rada on 20 September 2001. 80. MP Ihor Ostash, one of the authors of draft 2241, when presenting the draft for debate on 28 November 2000. 81. 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). 82. For a full list of Kuchma’s objections to the law, Prezydent Ukrainy, “Propozytsii do Zakonu Ukrainy ‘Pro pravovyi status zakordonnykh ukraintsiv.’” 83. Council of Europe Parliamentary Assembly, “Resolution 1335 (2003): Preferential Treatment of National Minorities by the Kin-State.” 84. Prezydent Ukrainy, “Propozytsii do Zakonu Ukrainy ‘Pro pravovyi status zakordonnykh ukraintsiv.’” 85. 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. 86. 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”). 87. Alfred Stepan, “Ukraine: Improbable Democratic ‘Nation-State’ but Possible Democratic ‘StateNation’?” Post-Soviet Affairs 21, no. 4 (2005): 296. Oxana Shevel is an assistant professor of political science at Tufts University. Her research focuses on comparative state- and nation-building; comparative democratization; the politics of citizenship, migration, and refugee policies in the post-Communist region; and international influences on domestic politics. Downloaded from http://eep.sagepub.com at Harvard Libraries on February 3, 2010

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