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

Published on May 30, 2019        Author: 
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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 Statesso 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.

Read the rest of this entry…

Filed under: Human Rights
 

Passportisation: Risks for international law and stability – Part II

Published on May 10, 2019        Author: 
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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. Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights
 
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Passportisation: Risks for international law and stability – Part I

Published on May 9, 2019        Author: 
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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.  Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights
 
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Brexit Means Brexit: Does It so When It Comes to EU Citizenship?

Published on March 15, 2019        Author: 
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Following a dramatic referendum, the United Kingdom triggered Art. 50 of the TEU in March 2017 officially commencing its withdrawal from the EU. At first glance, one of the many consequences of the move is the loss of EU citizenship for all British citizens as they will no longer be ‘holding the nationality of a Member State’ (TFEU, Art. 20(1)). This means losing all the perks that go with an EU passport, among them the freedom of movement, residence, and employment across the Union (id., Art. 20(2)).

A broader question of fairness and justice arises when ca. sixteen million people who have not voted in favour of leaving the bloc and have not committed any fraud or deceit are going to be stripped of their EU citizenship, and all of the privileges associated therewith. Not surprisingly, there have been some speculations on whether (and how) EU citizenship can be preserved by the Brits.

EU Citizenship

In its contemporary form, EU citizenship was established by the TEU back in 1992 providing that an EU citizen is ‘[e]very national of a Member State’ (Art. 9). The drafters of the Treaties could easily avoid using the term ‘citizenship’ and simply assign all the rights to nationals of the Member States but did not do that (William Thomas Worster, Brexit and the International Law Prohibitions on the Loss of EU Citizenship 15 International Organizations Law Review 341, 348 (2018)). However, the true roots of EU citizenship can be found in the Treaty of Paris signed in 1951. The Treaty virtually denounced any restrictions in the employment of professionals ‘in the coal and steel industries’ (Art. 69). Read the rest of this entry…

 

Shamima Begum may be a Bangladeshi Citizen After All

Published on March 14, 2019        Author: 
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In 2015, Ms Shamima Begum, then a 15-year-old British citizen living in London, travelled to Syria to join the so-called Islamic State. Her fate was unknown until recently when Ms Begum was discovered in a refugee camp in Syria. On 19 February 2019, the British Home Office in a letter delivered to Ms Begum’s family, revoked her British citizenship. Now, the 19-year-old wishes to return to the United Kingdom (UK). The aim of this piece is to examine whether Ms Begum is a Bangladeshi citizen as has been claimed by the Home Office, and subsequently contradicted by the Government of Bangladesh.

Article 8(1) of the 1954 Convention relating to the Status of Stateless Persons, to which the UK is a State-party (but not Bangladesh), directs a State, in this case the  UK, to not render a person stateless by depriving him or her of their nationality.

In the UK, Section 40(2) of the British Nationality Act, 1981 states that a person may be deprived of his or her citizenship if such ‘deprivation is conducive to the public good’. Furthermore, Section 40(4) of the same Act mandates that an order to deprive a person of his or her citizenship must not make that person stateless. Section 40(4) is basically the domestic reproduction of Article 8(1) of the 1954 Convention. Hence, the Home Office is authorised by law to revoke the citizenship of an individual provided it does not render that individual stateless. Read the rest of this entry…

Filed under: EJIL Analysis, Syria