Whose Rights, Whose Return? The Boundary Problem and Unequal Restoration of Citizenship in the Post- Yugoslav Space

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The paper argues that the right to return should be upheld as one of the political principles for mitigation of the boundary problem in post-conflict societies. Restoration of citizenship pursued through justified politics of return contributes to
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  This article was downloaded by: [University of Brighton]On: 09 January 2015, At: 07:35Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Click for updates Ethnopolitics: Formerly Global Reviewof Ethnopolitics Publication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/reno20 Whose Rights, Whose Return? TheBoundary Problem and UnequalRestoration of Citizenship in the Post-Yugoslav Space Biljana Đ or đ evi ć aa  University of Belgrade, SerbiaPublished online: 08 Jan 2015. To cite this article:  Biljana Đ or đ evi ć  (2015) Whose Rights, Whose Return? The Boundary Problemand Unequal Restoration of Citizenship in the Post-Yugoslav Space, Ethnopolitics: Formerly GlobalReview of Ethnopolitics, 14:2, 121-139, DOI: 10.1080/17449057.2014.991150 To link to this article: http://dx.doi.org/10.1080/17449057.2014.991150 PLEASE SCROLL DOWN FOR ARTICLETaylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis,our agents, and our licensors make no representations or warranties whatsoever as tothe accuracy, completeness, or suitability for any purpose of the Content. Any opinionsand views expressed in this publication are the opinions and views of the authors,and are not the views of or endorsed by Taylor & Francis. The accuracy of the Contentshould not be relied upon and should be independently verified with primary sourcesof information. Taylor and Francis shall not be liable for any losses, actions, claims,proceedings, demands, costs, expenses, damages, and other liabilities whatsoever orhowsoever caused arising directly or indirectly in connection with, in relation to or arisingout of the use of the Content.This article may be used for research, teaching, and private study purposes. Anysubstantial or systematic reproduction, redistribution, reselling, loan, sub-licensing,systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &   Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions    D  o  w  n   l  o  a   d  e   d   b  y   [   U  n   i  v  e  r  s   i   t  y  o   f   B  r   i  g   h   t  o  n   ]  a   t   0   7  :   3   5   0   9   J  a  n  u  a  r  y   2   0   1   5  Whose Rights, Whose Return?The Boundary Problem and UnequalRestoration of Citizenship in thePost-Yugoslav Space BILJANA ÐORÐEVIC´ University of Belgrade, Serbia A BSTRACT  The paper argues that the right to return should be upheld as one of the politicalprinciples for mitigation of the boundary problem in post-conflict societies. Restoration of citizenship pursued through justified politics of return contributes to democratic reconstitution of post-conflict societies. In post-Yugoslav space, however, the politics of return of refugees,internally displaced persons, diaspora and deportspora can be charged with promoting someforms of citizenship inequality, preferring some citizens over others and impeding or effectivelyblocking the return of those who are not desirable. Introduction In democratic theory, there has been a recent revival of interest in the so-called boundaryproblem: how to legitimately delimit the political community relevant for democracy (seeCheneval, 2011; Miller, 2009; Whelan, 1983). Boundary-drawing, separation of one people from another, was the result of historical contingencies with borders beingentrenched, moralized and guaranteed by international law. Nonetheless, challengesarising from globalization, secession and immigration have again stressed the controver-sial nature and practical relevance of the boundary problem often addressed in the litera-ture as a philosophical problem only.In this paper, I argue that the right to return should be understood as one of the politicalprinciples for mitigation of the boundary problem which is of special importance for post-conflict polities such as those in post-Yugoslav space. Understood strictly procedurally asa decision method, democracy cannot successfully solve the boundary problem. But in itssubstantive form as a political regime of which political equality is a constitutive element,the boundary problem can be democratically mitigated by making citizenship more inclus-ive. Therefore, without taking into account the politics of return as a politics of restoration Ethnopolitics , 2015Vol. 14, No. 2, 121–139, http://dx.doi.org/10.1080/17449057.2014.991150 Correspondence Address : Biljana Ðor d evic´, Faculty of Political Sciences, University of Belgrade, Jove Ilic´a 165,Belgrade, Serbia. Email: biljana.djordjevic@fpn.bg.ac.rs # 2015 The Editor of Ethnopolitics    D  o  w  n   l  o  a   d  e   d   b  y   [   U  n   i  v  e  r  s   i   t  y  o   f   B  r   i  g   h   t  o  n   ]  a   t   0   7  :   3   5   0   9   J  a  n  u  a  r  y   2   0   1   5  of citizenship, scholars fail to evaluate citizenship regimes appropriately, but also citizen-ship regimes fail to satisfy democratic legitimacy criteria.I begin my discussion by elaborating specificities of the boundary problem in post-con-flict societies. Then, I continue by providing an interpretation of the right to return andpolitics of return that mirrors social and political effectiveness of the right to return.Then, I spell out why I use the citizenship constellations approach to explain and evaluatethe creation of conditions for return by the main players involved in the politics of return.Three different politics of return in the post-Yugoslav region are presented in the follow-ing sections and their purpose is to illustrate how outcomes of different politics of returnwithin citizenship constellations often produce inequalities and unevenness of citizenship.In conclusion, and building on the empirical case of the post-Yugoslav region, I restate thenormative relevance of speaking about return in terms of citizenship and democracy. The Boundary Problem in Post-conflict Societies The boundary problem is the problem of   demos , a problem of legitimacy of the people whoare usually themselves taken as a source of legitimacy of the government. As SofiaNasstrom writes,The contention is that first we have the people, and then we have legitimacy. Theformer is the basis of the latter. By shifting focus to the above framework of legiti-macy, however, the role of the people changes. The people is no longer the source,but the object, of legitimacy. We cannot first stipulate who the people are only thento go on doing democratic politics as usual. Rather, people-making is what legiti-macy is all about. It raises a continual quest for legitimacy. (Na¨sstro¨m, 2007, p. 643)This continual quest for legitimacy stems from the unsolvable boundary problem—whoshould decide what majority of which unit has the final say in deciding on secession? If the democratic legitimacy of   demos  stems from potential members of   demos  consentingto belong to  demos , whose consent has been asked? This is the most prominent versionof the boundary problem, but this paper will be dealing with another manifestation of the boundary problem that arises as another legitimacy gap between already the contest-able decision on  demos  (application of continuity model or new state model) and reality of expulsion and return for some but not others.Even though the post-Yugoslav republics could rely on pre-defined  demoi  of the repub-lics within Yugoslavia, they still had to face the boundary problem—who belongs to demos—  since the very decision to apply a so-called continuity model (Brubaker, 1992,pp. 278–279) is a decision on the boundaries which had to be made and could havebeen decided otherwise. Boundaries always include some while excluding others. Thereis a difference, however, whether boundaries drawn fail to include those who potentiallywill have had legitimate claims to membership (e.g. immigrants) or whether their drawingeffectively excludes those who were yesterday’s members (e.g. refugees). Boundarydrawing or people-making in the post-Yugoslav states did not take place only throughformal decisions on citizenship legislations but also via the enterprise of expelling onepopulation out of a territory and preventing prospects of its return. Citizenship regimes 1 (Shaw & Sˇtiks, 2012, p. 311) of these new states have not been moulded  ex nihilo ; further-more, they have been conceptualized as a result of internal dynamics and external122  B. Ðor  d  evic ´      D  o  w  n   l  o  a   d  e   d   b  y   [   U  n   i  v  e  r  s   i   t  y  o   f   B  r   i  g   h   t  o  n   ]  a   t   0   7  :   3   5   0   9   J  a  n  u  a  r  y   2   0   1   5  influences, but at a time with specific understanding of what counts as legitimate. Thedishonourable European history of expulsion of peoples and expropriation of their posses-sions, from Jews to Sudeten Germans, fortunately no longer represents contemporarynorms of democratic legitimacy. But rarely, if ever, has people-making been donewithout illegitimate expulsions and various kinds of exclusions. Ethnic cleansing is away of deciding who should belong (and who should not belong) to people. It is amethod of boundary drawing which is clearly immoral and illegitimate, and nothingcan make it legitimate. Therefore, delimitation of   demos  taking place as a result of theexpulsion of former citizens without the possibility for those who fled to restore their citi-zenship cannot be considered as a legitimate solution of the boundary problem today.Although the boundary problem indicates that there is no perfectly legitimate demos,that cannot be an argument against our attempts to criticize illegitimate measures of itsdefinition and hope for approximation of legitimacy as a normative ideal. The questionis what should be done afterwards—is there a justifiable way to reverse ethnic cleansingand remedy historical injustices Here is where the idea of return as a restoration of citizen-ship and an attempt at reversing of ethnic cleansing comes in (Long, 2011). Clearly, somewrongs cannot be remedied and ethnic cleansing can never be undone—the boundaryproblem of the post-conflict societies exceeds any proposed or wish-for solution. This isa tragic fact, but it is not an argument against making this world more just, and  demoi more legitimate. The Right to Return to One’s Own Country When One’s Own Country is a NewCountry The right to leave and return to one’s own country is one of the most basic human rights.Without going into a never-ending philosophical debate about the meaning and function of human rights, I will assume here that they represent an instrument for ensuring respect forthe dignity of human beings and the willingness of international community to imposeobligations on the governments violating human rights. Almost all the scholarshipdealing with the migration–citizenship nexus has concentrated on the right to leaveone’s own country (right to emigrate) and the paradoxical lack of an internationally recog-nized right to immigrate, and corresponding lack of duty of states to accept immigrants.This might wrongly imply that the right to return to one’s own country, as a codifiedright, is largely unproblematic in its conceptualization and implementation. Quite the con-trary, the codification of the right to return was more a postscript to the right to leave, per-ceived as a more important right in the context of the Cold War. It was not until 1999 thatthe UN Human Rights Committee in its General Comment No. 27 on freedom of move-ment identified who are the persons entitled to exercise this right by way of clarifying themeaning of the concept of ‘one’s own country’ with regard to article 12 of the 1966 UNInternational Covenant on Civil and Political Rights, which states that ‘No one shall bearbitrarily deprived of the right to enter his own country.’ Importantly, the elaborationof this right in the mentioned General Comment is the following:The scope of ‘his own country’ is broader than the concept ‘country of his nation-ality’. It is not limited to nationality in a formal sense, that is, nationality acquiredat birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims inrelation to a given country, cannot be considered Whose Rights, Whose Return?  123    D  o  w  n   l  o  a   d  e   d   b  y   [   U  n   i  v  e  r  s   i   t  y  o   f   B  r   i  g   h   t  o  n   ]  a   t   0   7  :   3   5   0   9   J  a  n  u  a  r  y   2   0   1   5
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