2011] AN INTERNATIONAL LAW OF CITIZENSHIP 727 presumptively invalid, absent particular evidence showing that they are both necessary and proportional.”216 Affinity-based naturalization preferences. Some states maintain preferential regimes for nationals of states of historical affinity and for those of particular religious or ethnic identities. This phenomenon is pronounced among Iberian states.217 Under Israel’s Law of Return, qualifying Jews are entitled to citizenship upon settlement in Israel; they are considered as “already belonging to the constitutive community,” whereas other immigrants must satisfy residency and other naturalization requirements.218 The Inter-American Court of Human Rights upheld an affinity preference under Costa Rican law.219 The official explanatory report to the European Convention on Nationality notes that “States Parties can give more favorable treatment to nationals of certain other States.��220 Their pedigree notwithstanding, naturalization preferences are coming under increased scrutiny. Leading scholars have characterized the preferences as “suspicious”221 and “worrisome,”222 especially when they appear to reflect bias against a group disadvantaged by the regime. In Spain, for example, the preference for nationals of Iberian countries, who are eligible for citizenship after only two years of residence, severely disadvantages large numbers of immigrants from Morocco, who face a ten-year requirement.223 Germany has largely abandoned, with a series of laws starting in 1999, its long-standing Ausslieder policy, under which ethnic Germans from central and eastern Europe were extended citizenship upon arrival despite temporally remote attachment to Germany; the “striking contrast” with the status of German-born Turks became “more and more difficult to justify, either morally or economically.”224 The Committee on Economic, Social and Cultural Rights has expressed concern about the Israeli Law of Return as a form of discrimination against 216 Goldston, supra note 119, at 334. The test would track the strict scrutiny applied to racial classifications under U.S. constitutional jurisprudence. 217 See, e.g., Ruth Rubio-Marı́n, Spain, in 2 ACQUISITION AND LOSS OF CITIZENSHIP, supra note 5, at 477. These preferences are undertaken on a bilateral basis, reducing the naturalization period for nationals of each state and recognizing dual nationality between the two. 218 Ayelet Shachar, Citizenship and Membership in the Israeli Polity, in FROM MIGRANTS TO CITIZENS, supra note 5, at 386, 390. 219 Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (Ser. A) No. 4 ( Jan. 19, 1984). 220 COUNCIL OF EUROPE, EXPLANATORY REPORT TO THE EUROPEAN CONVENTION ON NATIONALITY, ETS NO. 166, para. 41 (1997), at http://conventions.coe.int/Treaty/en/reports/html/166.htm. 221 Bauböck & Perchinig, supra note 180, at 459. 222 Rubio-Marı́n, supra note 217, at 510; see also Mariner, supra note 148, at 66 (noting “surprising latitude” that states enjoy with respect to such affinity regimes); Orentlicher, supra note 155, at 324 (questioning whether “democratic values might be offended by naturalization policies that favor particular ethnic groups”). Seyla Benhabib finds such policies acceptable “[a]s long as a state does not deny those of different ethnicity and religion equivalent rights to seek entry and admission to a country,” but finds them to violate human rights when they “are combined with the goals of preserving ethnic majorities and ethnic purity.” BENHABIB, supra note 7, at 138 n.2. On that basis, she finds Israeli citizenship practices to violate the human rights of Palestinian refugees. See id.; see also Goldston, supra note 119, at 335 (“there may well be strong justifications for these preferential policies, but their ultimate legitimacy depends on the specificities of time, place, and circumstance”; questioning Israeli regime on that basis). But cf. Schwelb, supra note 146, at 1009 (observing in 1966 that prohibition of affinity preferences in extension of nationality “can hardly have been intended” by the Racial Discrimination Convention). 223 Rubio-Marı́n, supra note 217, at 506. 224 HOWARD, supra note 5, at 123; see also Hailbronner, supra note 188, at 234 –36 (describing legislative implementation of restrictive policies regarding “repatriation” of ethnic Germans from central and eastern Europe). This content downloaded from 82.196.111.31 on Thu, 07 Oct 2021 15:20:30 UTC All use subject to https://about.jstor.org/terms