Diasporas–groups who maintain ties to a homeland while living abroad–present a challenge to standard paradigms of international law. The dominant statist model of international law, which limits the reach of a state’s laws to its own geographic boundaries, allows no legal connection between a diaspora and its homeland. The cosmopolitan model of international law, which minimizes the importance of nationality, also discourages such legal ties. Professor Anupam Chander proposes a third paradigm–the diasporan model–which accommodates the dual loyalties and interests of people living in diasporas by allowing them to be governed by the laws of both their homelands and their adopted countries. As an example of host the diasporan model might settle concrete legal problems, Chander discusses Resurgent India Bonds, a mechanism that the Indian government uses to raise capital from the Indian diaspora. He suggests a diasporan solution to the choice-of-law question raised by foreign-issued securities: enforcing forum-selection clauses which keep private litigants out of U.S. courts, while allowing regulators to enforce U.S. law against foreign issuers. This hybrid solution, Chander argues, makes a diasporan compromise: It respects the sovereignty of the adopted country over matters of public concern while allowing the diaspora to choose the law of its homeland to resolve private disputes.
In Home and Away: The Construction of Citizenship in an Emigration Context, Kim Barry argues that more attention must be paid to the emigrant and to the policies of emigration states. Taking up her suggestion, this Article closely describes the array of devices that emigration states have used to nurture bonds with their expatriates. The taxonomy offered here subdivides these bonding mechanisms into political, economic, and cultural devices. Governments seeking to cement political ties have offered dual citizenship, voting from abroad, direct representation of expatriates, special visas for the diaspora, and government-issued diaspora membership documents. States have sought to capitalize on the economic strength of their overseas members by soliciting their support for sovereign “diaspora bonds,” development programs, and direct investment. They have also sought to attract returnees, who will often bring with them significant financial and human capital, and to ease return by negotiating for returnees’ pensions to be transferred to them from the nation in which they worked. Finally, nations have sought to reshape their own collective image to include the diaspora, achieving this through explicit state recognition of the diaspora, establishment of agencies to serve the diaspora, legal protections for their overseas citizens, and special outreach to youth and retirees living abroad. The second half of the Article turns to the question of whether there are any instances when host states’ laws would prevent emigration states from pursuing these sorts of bonding mechanisms with their overseas citizens. Working with U.S. law as a test case, it appears that constitutional safeguards for civil liberties limit the U.S. government’s ability to regulate emigration states’ efforts to maintain ties with their diaspora members residing in the United States. However, these limits are relaxed when U.S. foreign policy concerns, particularly ones relating to national security, are at stake. Further, U.S. laws of general applicability,such as securities laws, and U.S. courts’ unwillingness to enforce foreign revenue laws may make it more difficult for emigration states to pursue certain bonding mechanisms. Despite these limits, though, the domestic laws of immigration states like the United States should provide sufficient space for emigration states to bond with their diasporas. The Article concludes with a tribute to Kim Barry and the power of her voice.