Passportisation: Risks for International Law and Stability – Response to Anne Peters

Introduction

Anne Peters’ EJIL Talk! blog post Passportization: Risks for International Law and Stability regarding actions of the Russian Federation as regards applications for Russian nationality for persons living in certain parts of Ukraine (see here and here) raises important and interesting questions. With respect I believe that (i) the post overstates the assistance available from the international law concerned directly with nationality, (ii) evaluating the extent of that law is a worthwhile endeavour, and (iii) something like Prof Dr Peters’ final conclusion may be ultimately reached by a different route, by reference not to the particular principles related to nationality in international law but to the actions of the Russian Federation taken in their overall factual context.

International law re nationality: background

Nationality is closely linked to sovereignty, and nationality issues may well become a source of conflict between or amongst States. Since the Advisory Opinion of the Permanent Court of International Justice in Nationality Decrees Issued in Tunis and Morocco on 8 November 1921, Advisory Opinion, 1923, PCIJ (ser B) No 4 (7 February 1923) questions regarding nationality are no longer considered, as was often the case earlier, to lie exclusively within the ambit of each State. The 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws records respectively at article 1 that:

‘It is for each State to determine under its own law who are its nationals’ and that nationality ‘shall be recognised by other States… so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.’

By article 2:

‘Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.’

It is useful to distinguish two aspects of the law affecting nationality, and their different degrees of development over the past century. First, in general international law there has been, in relative terms, surprisingly little development since the 1930 Convention, although more concrete steps have been taken as regards persons without national protection through well-founded fear of persecution (refugees) and for the reduction of statelessness. In the field of nationality there have certainly been areas in which progressive change has come about- reduced gender disparity and the reduction of statelessness, for example- but none of these seem directly relevant in the present context. Secondly, since WW2 there has been a dramatic development of IHRL provisions intruding upon state exclusivity in the realm of nationality, starting with article 15 UDHR and including article 24(3) ICCPR and many other provisions in other international and regional instruments. Collectively these have had most profound effect as regards deprivation of nationality, so that in recent years arbitrary deprivation of nationality has been described as prohibited (UNHRC, Report of the Secretary-General, Human Rights and Arbitrary Deprivation of Nationality, 14 December 2009, A/HRC/13/34). Although some provisions- for instance non-discrimination standards- may bear upon naturalisation- see for instance the IACHR Advisory Opinion on Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica (Advisory Opinion OC-4/84, January 19, 1984, IACHR (Ser. A) No. 4 (1984), [38]) – in general IHRL has far less impact in this area.

The Actions of the Russian Federation

The measures in question facilitate the acquisition of Russian citizenship through a ‘fast-track procedure’ for naturalisation available to persons residing in parts of Ukraine affected by conflict with separatist forces supported by the Russian Federation. They do not purport to impose Russian nationality upon any person without consent (although as Peters notes, the issue of consent becomes much less straightforward in the context of armed conflict). Nor do they purport to have any effect upon Ukrainian nationality (which remains the exclusive preserve of Ukraine). Of course as a matter of general principle either state might provide for its own nationality standing good only if held exclusively nationality: the Russian Federation might make naturalisation conditional upon renunciation of any other nationality, whilst Ukraine might provide (subject to avoiding arbitrariness) for its nationality to fall away from persons taking another nationality.

Reflections

Although I ultimately agree with Peters that non-recognition may be appropriate, it seems to me that a number of arguments made in the earlier paper will not, in the current state of the law, bear significant weight. I address these in turn below.

The argument from IHRL – Given the characteristics of the measures in question, and particularly that they provide a route of application for naturalisation rather than purporting to impose nationality automatically, it is difficult to see a viable argument from the particular IHRL standards focussed upon nationality. There is no discernible human right not to be offered the prospect of voluntary naturalisation. In a broader context- for instance if there is coercion- there might be scope to argue for breach of IHRL taking all relevant together rather than the nationality measures in isolation.

The argument from the interests of Ukraine – A State possesses no right per se to prevent a foreign State from affording voluntary naturalisation to one or more of the second State’s citizens, simply on the basis that that is against the first State’s perceived interests. The suggestion (Peters, sections III-IV) that:

‘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 [so] the refusal to release its national would not be arbitrary’

implies the existence of a State right to refuse ‘release’ to one of its nationals wishing to naturalise in a second State. No such right exists in international law. To assume the contrary would be to ignore both the general autonomy of States in the field of nationality (and certainly in the particular area of naturalisation) and the rights given to individuals by IHRL: article 15(2) UDHR prohibits both arbitrary deprivation of nationality and ‘[denial of] the right to change his nationality.’ That right is not limited, I would suggest, by an exclusive ‘dual rationale of the right to change one’s nationality, which is to avoid statelessness and to alleviate the plight of migrants.’ Overall I respectfully suggest that no general right is possessed by any State to prevent its national naturalising in a second country.

Abuse of rights – The argument based on abuse of rights relies upon:

‘large scale naturalisation policies’ as ‘apt to constitute an abuse of rights’ and ‘wide and liberal naturalisation… cited as a typical example for an abuse of the states’ recognised right to bestow their nationality upon individuals’.

This is overly wide. Read literally it suggests that large scale naturalisation is per se abusive of relevant rights. Against that, no international standard limiting naturalisation exists. I note that the United States naturalised more than 7.4 million people in the decade up to the end of fiscal year 2016 (USCIS Naturalization Fact Sheet 19/5/2017), whilst in the United Kingdom the figure was over 123,000 in 2016, down from peaks exceeding 200,000 in 2009 and 2013 (Oxford University Migration Observatory, Naturalisation Concepts and Trends, 3/8/2018). To cite large scale naturalisation as abusive per se is plainly an over-inclusive claim. Further, abuse of rights at least suggests the need for an identification of limits to rights- and there is presently a marked absence of identified limits upon the rights of a State in relation to naturalisation. The abundant difficulties with this aspect of the argument bring to mind the difficulties which commentators in the interwar period faced, seeking to use abuse of rights in the content of mass denationalisation and exclusion by states- notwithstanding that this directly affected the territorial sovereignty of states left with denationalised persons unable to move on or return home (Weis, Nationality and Statelessness, 2^nd edn 1979, Brill, p123, refers to Liebholz (1929) and Lauterpacht (1933)).

Inherent limits upon freedom of States regarding nationality/ Nottebohm/ ’effectiveness’– In the Nottebohm case (Nottebohm case (Liechtenstein v. Guatemala) ICJ Reports (1955) 4), Liechtenstein sought to exercise diplomatic protection against Guatemala in relation to Mr Nottebohm, a German citizen long resident in Guatemala who had naturalised in Liechtenstein during a short visit in 1939. The Court’s judgment states (p20) that:

‘It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality… It is not necessary to determine whether international law imposes any limitations on its freedom of decision in this domain…’.

The Court observed (p23) that past practice and opinion identified nationality as:

‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties…’

but limited the case in which this could ground international protection:

‘Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.’

The decision of the Court is best understood as resting upon the conclusion that Mr Nottebohm’s nationality could not be relied upon as against Guatemala, with which Mr Nottebohm had had a very close connection. It does not appear to establish a positive line beyond which the attachment element of nationality is ‘ineffective’, not constituting nationality at all. As Amerasinghe observed (Diplomatic Protection, OUP, 2008, p93), after identifying descent, place of birth, and naturalisation as the connections most generally identified by international law as nationality relevant:

‘whether in the case of naturalisation there must be a genuine or effective link between State and individual is a more difficult question. If this were the case such a link would require adequate definition so as to be identifiable and not too limiting.’

Insofar as the requirement for such a link may be said to exist at all, that link may effectively be circular- ie the fact of undergoing voluntary naturalisation is virtually sufficient in itself to establish the relevant link with that State. On this I concur with Prof Dr Peters, who accepts (section IV) both that ‘the genuine link requirement applies – if at all – only to the question of diplomatic protection (and possibly for resolving questions of dual nationality)’ and that if a connection is required, ‘the necessary factual connection to the naturalising state may lie in factors other than residence.’ On this approach, naturalisation as a citizen of the Russian Federation might be justified through historical or cultural or linguistic kinship. But Peters’ post in considering the ‘Consequences of Passportisation under International Law’ (section V) seems to depart from the understanding of the law set out in the preceding section, so as to suggest that naturalisation by persons linked to the Russian Federation through:

‘residing in Eastern Ukraine, whose former Soviet nationality and/or a temporary residence permit in the Russian Federation constitute the only factual connection between them and Russia, is exorbitant’

and need not be recognised. With respect I disagree. Even if a minimum level of ‘effective link’ (beyond voluntary naturalisation) exists, and the specific elements of ‘factual connection’ identified by Peters could be said to be outside this, it seems unlikely that, overall, the potential for ‘effective’ naturalisation can be discounted on this score.

Conclusions

For the reasons given above, it seems to me that Peters cannot draw significant assistance from the international law directly focussed upon nationality. But, with that said, it seems to me that two observations might be made. First, the relatively limited international law constraints on States as regards nationality (including in particular naturalisation, for present purposes) result from the restricted development of the law over the past century. There has been no broad move to codification of the type experts in the early-mid 20^th c anticipated as a possibility in the future. This is particularly true of rules as between States, as opposed to individual or group rights under IHRL. There have been areas of development, but they do not include the circumstances in contemplation here. Secondly, the absence of restraints within the international law concerning nationality, narrowly defined, does not mean that there is overall an absence of international law standards potentially going to recognition of nationality resulting from the measures in question. It would be artificial to treat the measures separately from the whole situation of Ukraine and the Russian Federation, including the actual or potential responsibility of the latter for breaches of important norms of international law such as acts of aggression and breaches of obligations erga omnes deriving from the outlawing of acts of aggression (Barcelona Traction case: Belgium v Spain (Second Phase) (1970) ICJ Rep 3, [34]). As Brownlie stated, action of a State relating to nationality must be regarded as illegal if part and parcel of a breach of international duty (Brownlie, The Relations of Nationality in Public International Law, British Yearbook of International Law 39 (1963): pp284–364, p339- and Weis, ibid, concurring, p123).  Instances of non-recognition in the international community include, for example, the non-recognition of new nationalities resulting from the purported foundation, under sponsorship of the then Government of South Africa, of independent ‘homeland’ or ‘Bantustan’ entities, pursued in furtherance of apartheid. Non-recognition might ultimately be justified (or even required) by this route. So I may ultimately be close to Peters as to the possibility of non-recognition based on breach of recognised international norms – even if I differ as to the route between those and believe the nature of that difference should be identified.