European and North American governments have filled thick law books with answers to these kinds of questions. But in Israel they’ve been left open, with thousands of people’s fates dependent on the discretion of the Ministry of Interior and its Population Administration. Hundreds of thousands of migrant workers came to Israel during the 1990s, many replacing Palestinian workers shut out by “closure” of the occupied territories. Tens of thousands of migrants have been left in limbo.
In May, Israel’s new Minister of Interior Ophir Pines-Paz formed a commission of legal scholars to propose comprehensive legislation. Media reports indicate that members of the Israeli cabinet want to strictly limit non-Jews’ ability to obtain any status in Israel, even if they are a close relative of an Israeli citizen.
The commission has only recently begun its work. Most of the information about its work has come through speculation in the media. If Israel’s government falls apart and goes to new elections, the whole project may be suspended or could lose its political foundation.
Like so many things in Israel, it began with fears that Jews would lose their demographic dominance in Israel. But the scope and direction of the commission’s mandate are unique. All of Israel’s immigration-related laws are reportedly on the table, including possibly tightening the Law of Return to make it harder for non-Jews with Jewish grandparents to immigrate. And at least some politicians want Israel to model its immigration laws on strict European models.
Israeli politicians often talk about the self-declared Jewish State as something unique, with the Law of Return among its defining features. Israel defies international law on the Palestinian right of return, and its Law of Return is openly discriminatory against non-Jews. It is therefore not at all routine for Israeli Ministers to look at western Europe for models of immigration policy. But the fact that Israeli leaders can realistically consider international models shows a great deal about the global state of immigrant rights today.
Immigration is the last vestige of racism in international law. At least in principle, governments - Israel included - have agreed to ban racial and ethnic discrimination in “political, economic, social, cultural or any other field of public life.”(1) But when states wrote the International Convention on the Elimination of All Forms of Racial Discrimination they left one form of discrimination intact:
Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.(2)
This allows leading western democracies to give preferences to certain nationalities and ethnicities when it comes to citizenship that would be abhorrent in nearly any other field. It also provides Israel legal cover for its Law of Return.
Of course, Israel’s willingness to look at international law is inconsistent at best. While international law allows general discrimination in immigration, states are prohibited from singling out specific nationalities for exclusion. Yet Israel has done exactly that, renewing its temporary legislation to Palestinians from the occupied territories. The UN Committee on the Elimination of Racial Discrimination has twice called for the exclusion to be revoked.(3)
Israel’s pro-Jewish immigration law is among the most extreme discriminatory immigration laws, and stands out for its tie to religion. But it is not completely unique. Several other countries have immigration laws that make it easier for people of certain national or ethnic backgrounds to obtain citizenship. Denmark’s Nationality Act favors people from Finland, Iceland, Norway or Sweden. Greece allows any “ethnic Greek” to apply for naturalization.
In 1984, the Inter-American Court of Human Rights ruled that Costa Rica could legally favor “nationals of other Central American countries, Spaniards and Ibero-Americans” in its nationality laws.(4) The Inter-American Court tried to explain immigration discrimination by arguing that close “historical, cultural and spiritual bonds” will ease assimilation and preserve traditional values that a state “has the right and duty to preserve.”
Hence, in immigration, discrimination remains generally legal, an area of law that seem more rooted in the 19th Century than in the post-World War II human rights era. One has to question how committed governments really are to equality if they insist on retaining the right to discriminate on the essential question of citizenship. Most western immigration laws discriminate against people from Asia, Africa and Latin America, and favor Europeans and North Americans. It should be very disturbing that mainly white northerners have a generally easier time moving around the world than southerners who are mainly people of color.
These moral doubts have particular weight in the case of Israel. Israel has made discriminatory immigration central to its national identity in a way that other countries have not. In the words of the Israeli Ministry of Immigrant Absorption’s website: “The Zionist enterprise of aliyah and absorption, has been, and remains, the human basis for the establishment and flourishing of the State of Israel. ”Palestiniancitizensof Israel have long questioned how they can be equal in a state that openly prefers Jews above all others.
As a legal matter, the Law of Return for Jews and the right of return for Palestinians have little to do with each other. The Law of Return is about immigration for people who had no previous association with Israel. But Palestinians are not seeking to immigrate; they are asking to return home. The same convention that lets states discriminate in immigration forbids any bias about “the right to return to one’s country.”
But Israel’s denial of Palestinian return still poses the greatest moral challenge to its pro-Jewish immigration policy. Costa Rica’s favoritism toward “Ibero-Americans” and Greece’s open door toward “ethnic Greeks” do not have such direct connections to ethnic cleansing. Israel is not merely asserting a historical or spiritual connection with Jews; it is simultaneously refusing to acknowledge the historical, cultural and spiritual bonds between Palestinians and their homes in Safad, Majdal, Jaffa, and hundreds of other villages and cities.
Israel’s government intends its immigration reform effort to maintain Jewish dominance, not to make the country more open. Beyond closing doors to foreigners, the resulting policies could have a sharp edge for Israeli citizens, many of whom might be prevented from living in their own country with their partners, spouses and children.
The Interior Ministry’s expert commission has yet to make any concrete proposals, but its mere existence has already sparked debates within the Israeli government, academia and human rights movement.
If Israeli immigration reform gathers momentum, there will be two main things to watch. First, how much hardship is the Israeli government willing to impose even on its own people to prevent the slightest drop in the Jewish demographic advantage? Second, to what degree will Israel be able to use international law and western European examples to legitimize harsh and discriminatory laws?
Michael Kagan is an American lawyer. He teaches in the Tel Aviv University Refugee Rights Clinic, and is also a consultant on refugee law issues in the Middle East.
(1) International Convention on the Elimination of All Forms of Racial Discrimination article I.
(3) Committee on the Elimination of Racial Discrimination, CERD/C/65/Dec.2. (20 August 2004).
(4) Advisory Opinion on the Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica (OC-4/84), paras. 57, 60.