Passportisation: Risks for international law and stability – Part II

Editor note: This is Part II of a two-part post. See Part I here.

Part One of the blogpost examined the recent Russian decrees on a fast track procedure for conferring Russian nationality on inhabitants of Eastern Ukraine and explained international legal principles which govern such extraterritorial naturalisations. 

III. Striking the Balance: International Legal Limits on Passportisation

The conflicting individual and governmental interests and the overarching global value of a stable repartition of jurisdictions are reconciled by posing specific legal limits on the power of a state to naturalise citizens of another state.

The Prohibition of an Arbitrary Refusal to Release One’s Nationals

The prohibition of arbitrary decisions concerning nationality issues has emerged as a standard of reference in the international law of nationality. The Report of the UN Secretary General, Human Rights and Arbitrary Deprivation of Nationality, 14 December 2009 (A/HRC/13/34), stated that “[T]he notion of arbitrariness could be interpreted to include not only acts that are against the law but, more broadly, elements of inappropriateness, injustice and lack of predictability also” (para. 25).

A state may not categorically and without any legitimate reason (i.e. arbitrarily) prevent its citizens from acquiring a different citizenship. Inversely, a state may validly oppose the naturalisation of its citizens if its governmental interests outweigh both the interests of the concerned natural persons and the interests of the naturalising state. In that case, the refusal to release its national would not be arbitrary. A state’s refusal to release a national who continues to reside within its own territory is presumptively not arbitrary.

The Requirement of a Factual Connection

International law has traditionally required that there be a factual relationship between the person to be naturalised and the naturalising state. It has never allowed a state to confer its nationality by naturalisation upon persons possessing the nationality of another state and to whom the conferring state has no factual relation at all.

The requirement of a factual connection has to do with the fact that naturalisations occur within the mentioned triangle of actors, each with its own interests. The condition that there must be a certain factual connection between the naturalising state and the applicant for naturalisation is one way to strike a fair balance here.

Second, the existence of a factual connection between the applicant for naturalisation and the naturalising state is a material factor to determine arbitrariness in this triangular relationship. Where a factual connection to the naturalising state is missing, the “loosing” state’s refusal to release its citizens is not arbitrary.

Third, seen through the lenses of human rights law, the requirement of a factual connection between the applying person and the naturalising state seems a proportionate restriction of individual liberty in the public interest of the former state of nationality. Such a requirement does not unduly curtail the possible human right to change one’s nationality.

Fourth, a traditional justification for the requirement of a factual connection between a state and its nationals has been the idea that the legal bond of nationality should have “as its basis a social fact of attachment”, as the Nottebohm judgment put it.

A final explanation of the requirement of a factual relation is the international legal principle of effectiveness. The requirement of at least some factual connection between the conferring state and the applicant is a manifestation and consequence of this principle. The idea is here that nationality, conceived of as a legal and political relationship between a state and a person, must not be merely virtual, but must be effective. The gist of the idea of effectiveness is that law should faithfully translate social reality. This insight also plays for nationality. A state possessing nationals more or less only “on paper” would not be operational, and would therefore be only a virtual international legal subject.

The question remains how intense the factual relationship or connection between the state and the applicant for naturalisation must be. The stricter view is that of a “genuine connection” in the sense of the International Court’s Nottebohm judgement of 1955. I submit that the strict requirement of a genuine link for all cases of naturalisation would unduly limit and curtail the conferring state’s sovereign right to bestow its nationality upon persons according to its domestic rules. It would also create an element of uncertainty. If courts had to investigate the “genuineness” of every case of naturalisation, the effect would be to erode further the clarity of the rules of international law. The better view is therefore that the genuine link requirement applies − if at all − only to the question of diplomatic protection (and possibly for resolving questions of dual nationality). For all other purposes, the factual relationship need not be very tight. It must, however, be in conformity with the international rules on the exercise of jurisdiction, because the conferral of nationality itself is both a specific type of exercising jurisdiction and at the same time the basis for a state’s subsequent exercise of personal jurisdiction. For exercising jurisdiction, either a personal or territorial link must exist between the person and the state. How “genuine” this link must be is only a secondary consideration and depends on the concrete situation.

No per se Illegality of Individual Extraterritorial Naturalisations

A core question of passportisation is whether the conferral of a new nationality on persons living outside the naturalising state, and without having any other connection to that state, is per se illegal because of the lack of an appropriate factual connection and resulting arbitrariness.

In state practice, habitual residence in the territory is clearly the usual and most important criterion in the context of attributing nationality. However, today, habitual residence does not seem to be a necessary criterion for individual (as opposed to collective) naturalisations. Habitual residence may be supplanted by other types of factual connections. This means that the naturalisation (or the conferral of a special status short of nationality) of persons residing abroad is not per se illegal under international law. Put differently, the necessary factual connection to the naturalising state may lie in factors other than residence. State practice on naturalisations of non-residents must be measured against this yardstick.

IV. Application of the Principles to the “Passportisation” of the Inhabitants of Eastern Ukraine

The individuals residing in Eastern Ukraine applying for naturalisation might claim the right to change their nationality. However, the naturalisation by a state, Russia, in which they do not take residence seems to overstep the limits of that individual right. The change of nationality sought by non-residents of the naturalising state is not covered by the dual rationale of the right to change one’s nationality, which is to avoid statelessness and to alleviate the plight of migrants. Therefore a refusal by the original state of nationality to release its nationals if they continue to live within its territory is not arbitrary.

Next, international law requires the acceptance of the Russian nationality to be voluntary. It is possible that many residents of Eastern Ukraine are in a no-choice situation after the armed conflict. From a political point of view, the Russian “passportisation” policy is highly welcome to those political actors that wish to mark a distance to central Ukraine. Or, residents might have economic reasons to accept the offer of a Russian passport and real or assumed easier access to travel visa. Other motives for inhabitants for applying for Russian nationality are the desire to receive a Russian pension, advantages relating to medical care and education. Such economic, social, and political incentives do not contradict international law. Naturalisation induced by “soft power” must be deemed to generally occur on a voluntary basis, and in that respect conform to international law. The line between prohibited pressure and legitimate incitements for naturalisation is however difficult to draw.

Generally speaking, racial discrimination in the “passportisation” policy in breakaway territories would be illegal. The conferral of Russian passports specifically to residents of a certain ethnic descent would violate the international prohibition on discrimination in matters of nationality.

Besides voluntariness and non-discrimination, another condition for the international validity of individual naturalisations is a factual connection between the person granted the new nationality and the state conferring its nationality. The conferral of Russian nationality to persons living outside the territory of the Russian Federation only because they had been citizens of the Soviet Union, have acquired a temporary residence permit, or on the basis of “ethnicity”, does not fulfil the minimum requirement of a factual connection between the applicants and Russia. This does not rule out that the conferral of the Russian nationality on those residents of Eastern Ukraine who indeed have closer links to the Russian Federation (e.g. because of marriage or close family relations) is valid under international law and opposable to Ukraine. This would have to be shown in individual cases.

The Russian “passportisation” policy might be qualified as an abuse of rights in the sense defined above. This assessment seems warranted in the light of the specific characteristics of the Russian “passportisation” policy. First, it is performed on a massive scale and concerns people living in breakaway territories in a neighbouring state. The more persons are affected in number, the more plausible is the finding of an abuse of Russia’s right to naturalise persons. Second, the policy is implemented during an on-going secession conflict. Third, it has launched exactly in the fragile period when a new President needs to stabilise the new government. Fourth, the policy is being used as a lever to destabilise an already fragile country. Historical experience in Georgia shows that it may be employed as a rhetorical justification for the use of force. Under those very specific circumstances it can be argued that Russia is abusing its right of conferring Russian nationality on residents of Eastern Ukrainian territories in the “fast track” procedure. This is especially true as Russia’s role in the conflict between central Ukraine and the breakaway territory is shrouded by Russia itself.

V. Consequences of Passportisation under International Law

When the sovereign act of naturalisation oversteps the international legal limitations, the naturalisation (and the resulting nationality) is exorbitant. In theory, once it is acknowledged that international law has a role to play for the ascription of nationality by setting up limits, any disregard of these limits should render the act illegal. However, a central international authority to determine the international legality of a grant of nationality is lacking. All actors, notably the other states, have to assess the international legality and validity of a foreign act of conferring a nationality for themselves. All scrutinising actors will be guided by the rules of international law concerning the bestowment of nationality, but also by other concerns. There is no guarantee that they will evaluate each case identically and come to the same conclusion. In this regard, the recognition of nationality does not differ from the recognition of statehood. In result, it might be said that the idea of a possibly “objective” (in the sense of erga omnes) illegality of an exorbitant nationality is more or less fictitious, because in practice the effects deployed by a state’s conferment of nationality on the international plane entirely depend on its acceptance by other states and their tribunals, or by international bodies.

Therefore, the non-opposability is crucial. Non-opposability of an exorbitant nationality means that third states (including the former patron state) are not obliged to accept or recognise it. A core factor for the other states’ decision whether to recognise a purported nationality (or whether to qualify it as exorbitant and therefore as not recognisable) is the effective link.

The competence of domestic authorities to refuse recognition of an exorbitant nationality can also be justified from a choice of law perspective. National courts are competent to refuse to recognise a foreign naturalisation, operated by virtue of a foreign law, because they are generally competent to refuse the application of foreign law on the ground that it is contrary to their domestic ordre public.

But because the granting of nationality is a manifestation of the conferring state’s sovereignty, out of respect for that sovereignty, any conferment of nationality must be considered as prima facie in conformity with international law. Put differently, a state’s assertion that in accordance with its own law a person possesses its nationality creates a very strong presumption both that the individual indeed possesses that nationality and that it must be recognised or acknowledged for international purposes.

However, other states (and their courts) and international bodies are allowed to refuse the recognition of a foreign nationality on the ground of it being exorbitant (overstepping international legal limits) in exceptional cases (Italian-United States Conciliation Commission, Flegenheimer Claim, award of 20 September 1958, RIAA vol. XIV, pp. 327-390, paras 37-38). The presumption of the international lawfulness of a naturalisation, coupled with an exceptional competence of international and domestic bodies to scrutinise and deny the international legality of that act, strikes a balance between respect for the conferring state’s sovereignty on the one hand, and respect for a reasonable attribution of the various actors’ jurisdiction on the other hand, and is necessary to implement the international legal limits on naturalisations.

I submit that extraterritorial naturalisations based in “passportisation” constitute an exceptional case to which the presumption of valid nationality does not apply. The conferral of nationality to non-residents is apt to create serious doubts as to the international legality of such purported naturalisation. If a state or an international body reasonably concludes that an extraterritorial naturalisation is not in conformity with international law, no other state is obliged to acknowledge the new nationality of the persons thus “naturalised”. The nationality is then non-opposable to other actors.

Applied to our case, it can be said that the Russian nationality of persons residing in Eastern Ukraine, whose former Soviet nationality and/or a temporary resident permit in the Russian Federation constitute the only factual connection between them and Russia, is exorbitant. It need not be acknowledged by Ukrainian authorities, third states or international tribunals.

One step further, non-opposability might even mean that third states (all their agencies and courts) could be prohibited from recognising the exorbitant nationality. An expansive reading of the ICJ’s Wall opinion could found an obligation not to recognise illegal naturalisations (cf. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136, para. 159). Such a prohibition to recognise, the strongest conceivable form of non-opposability, would mean in practice that states must refuse to deliver a visa that is reserved for the conferring state’s nationals to its non-resident “nationals”. However, each state must apply the international legal principles to the facts by itself.

And what are the consequences of the passportisation for the Ukrainian nationality? International law generally leaves it to each state to decide freely which consequences it attaches in its internal law to the fact that a citizen acquires another nationality. However, full acknowledgment of the international policy and principle of combating statelessness requires endorsing a rule that purely virtual nationalities should be avoided. A person who possesses only a nationality which is not opposable to any other states and therefore does not offer effective protection to the concerned individual, is in reality a form of statelessness. This suggests that Ukraine’s discretion to denaturalise its citizens should not be allowed to function vis-à-vis exorbitant foreign nationalities. A person acquiring a new exorbitant nationality does not lose his or her former nationality for the purposes of international law, and Ukraine should be discouraged from treating such a person as an alien for purposes of its domestic law. Third states must continue to treat the affected persons as nationals of Ukraine, because otherwise the non-recognition of the exorbitant Russian nationality would leave them stateless. This seems to be the Ukrainian course. The Ukrainian Ministry of Foreign Affairs of Ukraine expressed “its resolute protest in relation to the decree of the president of the Russian Federation that allows for Russian illegal ‘passportization’ on the temporarily occupied territories of Donetsk and Luhansk oblasts of Ukraine. We consider this document to be legally null and void and it shall not alter the affiliation to Ukrainian citizenship of the residents of certain territories of Donbas, occupied by Russia.”

A different question is whether the naturalisation of non-residents can be effective within the territory of Ukraine in which the concerned individuals still reside. This would mean giving extraterritorial effect to Russian legislation and thus raises the problem of extraterritorial jurisdiction. All effects of the new Russian nationality of the residents, e.g. the right to receive Russian pensions, would have to be realised by Russian state authorities. However, the performance of Russian state functions going beyond the traditional consular functions would violate Ukraine’s territorial sovereignty. The payment of Russian pensions in the occupied territories seems to go beyond this limit. The breach of sovereignty could only be avoided or remedied by Ukraine’s consent to that performance (cf. Art 20 ILC Articles on state responsibility). It is immaterial that Ukrainian territorial sovereignty is dormant in regions under the control of Russian de facto authorities.

VI. Conclusions

Passportisation aims at the conferral of nationality on the citizens of another state without sufficient factual links, especially without a residence requirement, and on a large scale. This creates a tension in the triangle between the individual right to acquire a new nationality on one hand, the sovereign power to confer nationality, and interests of the former patron state on the other hand.

Passportisation policies are difficult to assess under international law, and indeed might to some extent be outside its purview. In all caution against overlegalisation, I submit that the application of legal principles seeking to strike a fair balance in the triangle of interests can foster stability and clarity that is beneficial for maintaining peaceful international relations. A international law-based analysis can help identifying exorbitant naturalisation policies which need not and – under an extended non-recognition obligation following the ICJ Wall opinion – arguably must not be recognised by other states (including the former patron state) and by other international legal subjects. (See for a detailed analysis Anne Peters, “Extraterritorial Naturalisations: Between the Human Right to Nationality, State Sovereignty and Fair Principles of Jurisdiction”, German Yearbook of International Law 53 (2010), 623-725). The “fast track” Russian nationality for the residents of Eastern Ukraine seems to fall in this category.