1. Introduction: The Decoupling of the Nation and State

An important critical discussion of the decoupling of the nation and state was held at the 2018 ALSA conference at Bond University in the Gold Coast, Australia in the session entitled “Constitutionalizing Transnational Nationhood, Cross-Border Connectivity and National Identity.”Footnote ³ This session was chaired by renowned constitutional law scholar David Law of Washington University, St. Louis, who also served as the discussant in the panel. The critical comments and suggestions provided by Professor Law on the papers accepted for the conference presentation were later incorporated into the final preparation of those papers selected for publication in this issue of the Asian Journal of Law and Society.

The first article, “Nation v. State: Constitutionalizing Transnational Nationhood, Creating Ethnizens and Engaging with Kin-Foreigners in Europe and Asia,” by Yonsei University Professor Chulwoo Lee, examines the constitutional bases for, and regulations on, diaspora-engagement policies and kin-minority politics. Professor Lee provides a critical overview of the effects of state Constitutions and government policies related to engagement with non-citizens, or “nation people,” who are bound by strong psychological commonality and shared history in Asia, Eastern Europe, former Soviet republics, and other parts of the world. The article begins with a critical analysis of the “ethno-national kin” that re-emerged after the deconstruction of the Soviet Union in 1991 as well as the dissolution of former Yugoslavia in the 1990s and 2000s. Professor Lee then explores diverse modes of diasporic engagement policies by interrogating “ethnizenship,” the neologism referring to non-citizen, yet “ethnic-national,” groups. By employing this concept, Professor Lee provides a critical analysis of the decoupling of the state and nation by interrogating the political ramifications of varied forms of geo-politically manifested “borders” as well as the state’s “abilities” to draw the demarcation lines of sovereignty. His study further explores the dimension of co-ethnics, kin-minorities, and other “national” bondages by examining European and Asian histories of diasporic engagement laws and governance policies, thereby bringing together the critical literature on the historically entrenched notions of “nationalism” and national minorities of Europe, and the critical literature on the trans-border strategies of migrant-sending states for political and geo-strategic purposes and realities.

The second article, “The State Constitution v. the Nation Constitution: Original Nations’ ‘Sovereignty-Building’ Projects in Asia, North America and Beyond,” is by ALSA President and UC Santa Cruz Professor Hiroshi Fukurai. Instead of focusing on the emergence of constitutional provisions of the state and their impact on diasporic engagement for geo-political purposes of the state, this article explores constitutional activism by the nation, undertaken to assert political rights under both domestic and international law, and to attain independence and the right to self-determination apart from the state supervision. Specifically, the paper looks into the Nation of Lakota in North America, its constitutional amendment, and its efforts to secede from US jurisdiction and to declare the nation’s independence, thereby providing the important template for autonomous nations across the globe to attain their independence and right to self-determination. The article provides a critical investigation of an array of both domestic and international laws used by the Nation of Lakota in order to complete the withdrawal of its political ties and legal obligation from the US. Also explored is the ongoing constitutional activism of other nations in North America, Asia, and various regions of the world, in their efforts to attain sovereignty and independence within, and beyond, the respective state systems.

The third article, “Constitutionalizing Trans-Border Nationhood: From Latin American Perspectives,” is by Professor Hee-Moon Jo of Hankuk University of Foreign Studies in Korea. After reviewing the emergence of “ethnic-national” policies of Korea, as well as of European and Latin American states, Professor Jo critically interrogates the greater diasporic connections promoted by Constitutions and by diaspora-engaging policies of the state system related to the aggressive expansion of trans-border outreach to overseas “ethnic-nationals.” Professor Jo observes that Latin American states and other countries in the Western Hemisphere, including the US, were relatively weak on the policies of diasporic kin-nationalism, perhaps due to settler-state colonialism that relied on the genocide of indigenous nations and forced importation of Africans under the system of slavery. Professor Jo finds that, after the globalization of 1990, varied forms of diasporic engagement polices began to emerge among Latin American states, most prominently in Colombia, in which constitutional provisions and greater diasporic engagements became an effective means of indirectly increasing the state power by actively inducing the trans-state political and economic participation of domicile countries. Professor Jo notes that these strategies by Latin American states and some Asian countries have expanded the international influence of the mother country by sending out de facto “national” out-migrants to the targeted foreign state territories. His article also investigates other legal provisions of diasporic connections, and constitutional foundations supporting such policies, from a political perspective as well as a human rights perspective.