Passportisation: Risks for international law and stability – Part I

I. Fast track to Russian nationality

On 24 April 2019, the Russian President issued an Executive Order identifying groups of persons entitled to a “fast-track procedure” when applying for Russian citizenship otherwise regulated by the Russian Law on Citizenship (Federal Law No. 62-FZ of 31 May 2002). The decree facilitates the acquisition of Russian nationality by residents from various districts of Ukraine’s Donetsk and Lugansk regions, notably without taking residency in Russia. The regions border Russia and are struck by a military conflict between the central government and separatist forces under heavy involvement of Russia. On 1st May 2019, the President issued a second “Executive Order on Certain Categories of Foreign Citizens and Stateless Persons Entitled to a Fast-Track Procedure when Applying for Russian Citizenship”. The new fast track procedure is potentially open to around 4 million people living in the conflict area of Eastern Ukraine.

In the Security Council of 25 April 2019, the representative of the Russian Federation explained “that there is a high demand for Russian citizenship among people from south-eastern Ukraine whose living conditions Kyiv has made intolerable. In other words, Russia’s legislative initiative is a response to the aspirations of many thousands of people. It is not we who are forcing them to become Russian citizens but rather they themselves who desire it. We are simply providing them with an opportunity and significantly simplifying the process. (…) Why was it done? The conflict in Donbas has been going on for five years. For five years, the inhabitants of Donbas have been deprived of the ability to exercise their human rights and freedoms in Ukraine. They were denied the right to vote in the recent presidential elections.” “[T]he residents of Donetsk and Luhansk (…) have been deprived of income sources, pensions and benefits that other Ukrainian citizens are entitled to. They would not have survived without Russia (…). The people of Donetsk and Luhansk deserve to have reliable State care and social protection once again. (…) They are getting none of that from the Ukrainian Government, and we therefore felt compelled to offer them assistance.” (Vassily A. Nebenzia, Security Council 8516th meeting, Verbatim Record, UN Doc S/PV.8516, p. 15-16). The decrees might also respond to the Ukrainian draft language law which establishes Ukrainian as the language of the state and relegates Russian to a regional language (Bill №5670-d, reading in Parliament on 25 April 2019, not yet in force ).

The recently elected President of Ukraine spoke of “another unprecedented interference of the Russian Federation in the internal affairs of an independent state, a brutal violation of sovereignty, territorial integrity and independence of Ukraine and a complete trampling upon its obligations in the framework of the Minsk agreements. In addition, the Kremlin therefore deliberately and cynically violates international humanitarian law, which prohibits the occupation authorities from changing the citizenship of the inhabitants of the occupied territories.” (24 April 2019).

In the UN Security Council Meeting of 25 April 2019, numerous delegates criticised the Russian measures. The Slovak OSCE Chairmanship expressed “deep concern”.

The recent decrees inscribe themselves in an overall Russian policy of generously conferring its nationality on residents of those states which emerged from the break-up of the Soviet Union. In Crimea, an active Russian “passportisation” policy had allegedly been pursued since 1991, until the peninsula was annexed by Russia in 2014. In two breakaway territories of Georgia, Abkhazia and South Ossetia, passportisation was rampant especially around 2002 (see the analysis in: Independent International Fact-Finding Mission on the Conflict in Georgia, Report (“Tagliavini Report”), vol. II, Chapter 3). Russia also offers easy Russian nationality to inhabitants of Transnistria (in Moldowa).

This two part-blogpost shows that the Russian “passportisation” policy (i.e. the policy of conferring Russian nationality en masse to persons residing outside Russia) is in many respects exorbitant and risks to violate various principles of international law. Part One examines the governing principles, Part Two balances these principles, applies them to the current case, and examines the legal consequences of  exorbitant naturalisations. 

II. Principles Governing “Passportisation”

With its passportisation policy, Russia offers a so-called “derivative” (as opposed to “original” acquisition of Russian nationality) through a state act called naturalisation, more specifically through individual as opposed to collective naturalisation.

Legally speaking, the issuing of a passport and the conferral of nationality are two distinct legal acts. The possession of a passport does not convey or prove nationality. It is, however, a powerful symbol for nationality, and the term “passportisation” evokes exactly this.

The concept of nationality denotes the legal and political relationship between a state and a person (ICJ, Nottebohm Case (second phase) (Liechtenstein v. Guatemala), ICJ Reports 1955, 4 at 23). The Inter-American Court of Human Rights explained: “The importance of nationality is that, as the political and legal bond that connects a person to a specific State, it allows the individual to acquire and exercise rights and obligations inherent in membership in a political community.”(IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic (2005), para. 137).

It is for the municipal law of each state to determine who and who not is to be considered its national under its own law. The conferral of nationality is in the domaine réservé whose scope is however contingent upon the existence of international rules. So the authority of a state to grant its nationality, seen from the outside as a unilateral act by the state, is limited by rules of international law (both treaty obligations undertaken and customary international law) (see Venice Commission, Declaration on the Consequences of State Succession for the Nationality of Natural Persons, of 13-14 September 1996, Art. I.2).

“Passportisation”, i.e. large-scale extraterritorial naturalisations affects the interests of a host of different actors: the conferring state (Russia), the individual applying for fast-track naturalisation, and it also concerns the former state of nationality of the person who acquires a new nationality (Ukraine). So there is a triangle of actors, each with own interests. Moreover, the general interest of the international community must be taken into account. The international legal rules on the acquisition of nationality through the naturalisation of persons possessing already a foreign nationality, seek to strike a fair balance between the interests in that triangle, and the global public interest.

Powers of the Naturalising State Russia

The bestowment of nationality upon an alien is an official act by the conferring state Russia and an emanation of its sovereignty. The naturalisation of a person who was previously a national of another state has internationally relevant legal effects. Through the enlargement of its nation, which is a constituent element of its statehood, a state in a way also enlarges itself. The international effects are even greater when persons residing abroad are involved, because nationality is a basis for the exercise of extraterritorial jurisdiction. The higher the number of a state’s nationals abroad, the more often that state will be under international law allowed to apply its laws outside its own territory (even if enforcement of those laws is not permitted). The extraterritorial conferrals of nationality thus extend Russia’s legal sphere of influence, and might in the extreme case amount to a kind of “personal” as opposed to territorial annexation. Such an extension may not happen limitless. International law establishes limits.

Rights of the Concerned Individuals

The traditional international law of nationality focused on the interests of the states, but in the contemporary era of human rights, a paradigm change has occurred. The perception is now that nationality is not only a manifestation of state sovereignty, but also a manifestation of human dignity. Hannah Arendt famously called the right to nationality the “right to have rights” (Hannah Arendt, The Origins of Totalitarianism (Harcourt, Brace and Company: New York 1951)).

A right to nationality is enshrined in Article 15 UDHR, and Article 20 of the American Convention on Human Rights of 1969 is an almost identical provision. While neither the ICCPR nor the ECHR lay down a right to nationality, numerous modern human rights treaties contain provisions on nationality.

Article 15 UDHR covers three distinct aspects: the right to acquire a nationality, to retain that nationality, and to change one’s nationality. “Passportisation” affects the right to change one’s nationality. Article 15(2) UDHR, and identical Article 20(3) ACHR, stipulates: “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” I submit that the prohibition of arbitrariness relates to both rights, the right to have and the right to change one’s nationality. The sentence should be understood as follows: “No one shall be arbitrarily … denied the right to change his nationality”. This literal reading means that the potential right to nationality does not imply an unrestricted free choice of nationality. There is no unlimited right of switching nationalities. The right to change one’s nationality means that a person has the right to obtain the nationality of another state if that state is willing to grant it, and that in this event, the former state (Ukraine) may not arbitrarily refuse to release that person from its nationality.

Any naturalisation in principle requires the consent of the affected person. In contemporary international law, the requirement of individual consent derives from human rights law. (In the pre-human rights perspective, individual consent was conceived as a mechanism to safeguard state interests, not individual liberty). Individualised naturalisations are illegal under international law if the affected persons’ consent is not free and therefore vitiated, i.e. legally non-existent. This is the case when pressure, threat, or force is applied to gain the individual’s consent to acquire the new citizenship.

A different situation is present when persons are lured into a new nationality by threat or by misrepresentations, or by promising advantages. In such a situation, it could be argued that the consent of the persons was “bought” and was not free. The “soft” means of imposing citizenship, the “selling of citizenship”, e.g. by granting of social security to persons abroad already do not vitiate the individual’s consent. A prohibition of even “soft” imposition of citizenship does not seem to be part of international law as is stands. Moreover, fairness does not seem to require such a rule. As long as the advantages promised have some reasonable connection with the usual privileges traditionally accorded to nationals by their state, nothing prohibits a state from making active publicity for its nationality. International law allows Russia to grant advantages to her nationals, such as social security or freedom of residence and movement. The promise of these advantages does not vitiate the consent of the applying persons.

Respect of the will of the individual concerned is a necessary, but not a sufficient condition for the international legality of a naturalisation. International law sets up additional limits, beyond the requirement of individual consent. The result is that even when an individual agrees to his or her naturalisation, the act might be barred from deploying legal effects on the international plane. As all human rights, the (possible) human right to nationality may be limited in order to protect legitimate governmental interests. Even assuming a human right to nationality does not prohibit setting up further conditions for the international legality and validity of naturalisations.

Interests of the Former Patron State Ukraine

The naturalisation of large numbers of a state’s nationals elsewhere deeply affects the former state of nationality because it directly involves that state’s legal status. The reason is that nationality is the personal element of statehood. A political territorial entity with a residential population in which none of the residents possesses that entity’s nationality would not be a state in a legal sense.

First, by the act of naturalisation, a state loosens (or even severs) the relationship between the individual and the state of its former nationality, and it thus deprives the other state of parts of one of its components, namely its people. Therefore, the interest of a neighbouring state affected by an extraterritorial naturalisation policy is ultimately an interest in preserving its very existence in law. The former state of nationality of a person thus has an interest in preventing its own nationals to acquire a foreign citizenship completely at will, especially without having any connection to that other state. That interest is not as such illegitimate because the state is constituted by its nationals and would cease to exist as a state if all its citizens were naturalised elsewhere.

This negative legal effect for the former patron state is not neutralised by the fact that that state might simply allow for dual nationality, thereby “keep” its nationals and thus preserve its own existence as a state in law. It remains the sovereign prerogative of states to determine in their internal law whether their nationals who acquire the nationality of another state retain their former nationality (Art. 15 of the 1997 European Nationality Convention, ETS 166). States remain free to denationalise those citizens, e.g. in order to prevent conflicts of loyalty, as long as this does not lead to statelessness. So Ukraine is not obliged to tolerate dual nationality by virtue of international law. In conclusion, the naturalisation of its citizens abroad does affect Ukraine’s identity as a state, even if Ukraine itself can contribute to retaining its nationals.

Second, large scale naturalisations undermine the personal jurisdiction of the state to which the affected persons belonged and to that extent affect its sovereignty. Along that vein, it has been argued that by conferring its nationality on the national of another state, a naturalising state purports to deprive the other state of its “right of protection”. A state’s right to protect its nationals has indeed been a traditional prerogative of sovereignty. Under the premise that states are no ends in themselves, the protection offered to the own nationals is rather a duty and not a right of the state. However, the option to grant protection to their nationals is still an important value for states. For example, in the Russian─Georgian conflict of 2008, Russia sought to justify its military activities in Georgia by relying on its right to protect Russian nationals. Against this background, the deprivation of the right to protection indeed constitutes an infringement of sovereignty.

To conclude, the conferral of a new nationality on a large scale deprives the former state of nationality of its jurisdiction over persons, forecloses diplomatic protection for those persons, and may become a pretext for military intervention. The higher the number of individuals removed from the nation, the more plausible is the qualification of these actions as an infringement of the affected state’s sovereignty, which encompasses jurisdiction over persons.

Principles Serving Global Public Interests

There is more at stake in extraterritorial naturalisation than just two competing sovereigns and individual rights. What is at least equally important is the international system of co-ordination. Several principles seek not only to protect the former state of nationality but, at least equally importantly, the functioning of the international system of states as such, and therefore a global interest.

First, mass naturalisations of persons living in neighbouring states risk violating the international legal principle of good neighbourly relations. (see the Preamble of the UN Charter; Article 74 UN Charter; the Friendly Relations Declaration of 1970).

Second, the well-functioning of peaceful international relations depends on stable, predictable, and fair repartitions of jurisdiction. Arguably, states should not be allowed to extend their jurisdiction over persons in an artificial manner via exorbitant naturalisations of persons residing in another state. The overarching objective is to maintain international co-existence, not state sovereignty as an end in itself.

Third, large scale naturalisation policies are apt to constitute an abuse of rights. Indeed, wide and liberal naturalisation is cited as a typical example for an abuse of the states’ recognised right to bestow their nationality upon individuals. The prohibition of the abuse of rights is known in many legal orders and is therefore in state practice accepted as a general principle of law, or as a part of international customary law. Various international treaties (e.g. Article 300 of the Convention on the Law of the Sea, Article 263 of the TFEU, Article 17 of the European Convention of Human Rights, or Article 3 of the Optional Protocol to the ICCPR) prohibit the abuse of rights.

Abuse of rights implies a distinction between the existence and the exercise of a right. An abuse of right is present when a state does not behave illegally as such, but exercises rights that are incumbent on it under international law in an arbitrary manner or in a way which impedes the enjoyment of other states of their own rights. Even if “passportisation policies” are not under all circumstances illegal, they may be abusive, depending on the circumstances. The prohibition of abuse may particularly play a role for the large scale naturalisation of stateless persons, which affects other states less intensely than the naturalisation of their nationals.