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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
 

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
 

The Kerch Strait Incident: Law of the Sea or Law of Naval Warfare?

Published on December 3, 2018        Author: 
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On Sunday 25 November 2018 Russian coast guard patrol boats, including the Don and the 630-ton Izumrud, first intercepted and later fired on three Ukrainian naval ships near the entrance to the Kerch Strait. Two Ukrainian sailors were injured, the Ukrainian ships seized and the crews arrested. The attack has been roundly condemned in the United States and around the world.

The Russian ships intercepted two Ukrainian Gyurza-M-class artillery boats, Berdyansk and Nikopol and a tugboat, Yany Kapu, as they sailed toward the Ukrainian port of Mariupol. Russian forces seized the vessels and arrested 24 crew members. The Don twice rammed the tugboat and the Russian vessels opened fire on the two smaller Ukrainian warships. The incident occurred in the territorial sea along the approaches to the Kerch Strait, which is bordered in the east by Russia and in the west by Russian-occupied Ukrainian Crimea. The Russian government stated that its forces fired only after the Ukrainian ships violated articles 19 and 21 of the United Nations Convention on the Law of the Sea (UNCLOS) concerning innocent passage in the territorial sea.

Exploring the legal circumstances of the incident requires selection between peacetime rules of the law of the sea and the law of naval warfare, which applies to international armed conflicts. This post concludes that the actual incident on the water is part of a continuing aggression by Russia against Ukraine, in violation of the UN Charter. While unlawful as a matter of the jus ad bellum, the incident would be a lawful in bello use of force by Russia in accordance with the law of naval warfare, notwithstanding Russia’s unlawful invasion of Crimea in 2014 or subsequent unlawful treatment of the Ukrainian sailors as common criminals rather than prisoners of war. In this case the law of naval warfare is lex specialis and supplants mutatis mutandis the peacetime rules of the international law of the sea for Russia and the Ukraine.

Read the rest of this entry…

 

Un-caging the Bear? A Case Study in Cyber Opinio Juris and Unintended Consequences

Published on October 24, 2018        Author:  and
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On October 4, the United Kingdom’s National Cyber Security Centre (NCSC), a division of the GCHQ, issued a news release attributing multiple cyber campaigns to Russia’s military intelligence service, the GRU. They were, according to the NCSC, designed to ‘undermine [the] international sporting institution WADA [World Anti-Doping Agency], disrupt transport systems in Ukraine, destabilise democracies and target businesses’.

The release was notable in two regards. As the campaigns were conducted by the GRU, an organ of the Russian government, Russia is legally responsible under the law of State responsibility for any violations of international law that may have occurred. Second, the release stated that the operations were ‘conducted in flagrant violation of international law’. Indeed, Foreign Secretary Jeremy Hunt, whom the release quoted, observed, ‘[t]his pattern of behaviour demonstrates their desire to operate without regard to international law or established norms and to do so with a feeling of impunity and without consequences’. 

Unfortunately, neither the NCSC nor the Foreign Secretary delineated those rules of international law that Russia allegedly violated or otherwise undermined. In this post, we attempt to tease loose the legal significance of the operations by measuring them against the recently enunciated UK positions on international law in the cyber context. Attorney General Jeremy Wright set forth these positions in a 23 May Chatham House speech. We first highlight the UK approach to the key international law prohibitions that are relevant vis-à-vis the Russian operations. Second, we assess the operations themselves against the UK position on these legal rules. Finally, we conclude by making the point that legal policy decisions with respect to cyberspace may prove a double-edged sword. Compelling reasons may exist for adopting particular positions regarding international law norms in cyberspace, but seldom are those positions cost-free. In particular, we suggest that the United Kingdom’s rejection of a rule requiring respect for the sovereignty of other States eliminates its most defensible basis for arguing that the Russian cyber campaigns undermined international law. Other States should bear this in mind before following suit.

Read the rest of this entry…

 
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Ukrainian Eurobonds and Russia’s Compliance with International Law: Matters Suitable for Summary Judgment in the English Courts?

Published on October 9, 2018        Author: 
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In mid-September the Court of Appeal of England and Wales handed down its judgment in Ukraine v The Law Debenture Trust Corporation P.L.C. (‘Ukraine v Law Debenture’), in which it decided Ukraine’s appeal against an order for summary judgment for the payment by Ukraine of just over USD 3 billion. The application for summary judgment followed Ukraine’s decision to stop making payments under notes it issued in 2013, which are held exclusively by Russia. Law Debenture Trust Corporation plc (‘Law Debenture’), a trustee acting at the direction of Russia, made the application on the basis of the trust deed by which the notes were constituted, which is governed by English law and which empowers the Russian Ministry of Finance to direct Law Debenture to take enforcement proceedings against Ukraine. The domestic nature of the claim notwithstanding, Ukraine argued, inter alia, that Russia violated international law and that this provided grounds to refuse payment under the notes. It is on the Court of Appeal’s approach to these arguments that this post focuses.

Ukraine’s arguments and international law

It is in relation to two of Ukraine’s arguments – a defence of duress; and entitlement to refuse payment on the basis that it was taking a countermeasure against Russia – that Russia’s compliance with international law was called into question. The significance of Russia’s compliance with international law to the latter argument is clear. The relevance of international law to the former argument resulted from Ukraine’s claim that the issuance of notes ‘was procured by unlawful and illegitimate threats made, and pressure exerted, by Russia, such as to vitiate the consent of Ukraine…’ (Ukraine v Law Debenture para 17). More specifically, Ukraine alleged that Russia made threats which violated, inter alia, the prohibition on the threat of force and relied also on the imposition of and threat of allegedly unlawful restrictive trade measures as further evidence of duress (ibid para 166).

According to Blair J, neither the defence of duress nor the countermeasure-based argument could be considered on their merits, since the foreign act of state doctrine renders them both non-justiciable. ‘Ukraine’s case to the contrary has no real prospect of success’ (see here, paras 295, 308 and 365). While the Court of Appeal also dismissed Ukraine’s countermeasure-based argument, it did so for a different reason: the absence of a domestic legal basis which permits or requires an English court to ‘examin[e] it or pronounc[e] upon [its] merits’ (ibid para 189). In relation to the defence of duress, however, which has a domestic legal basis and to which, in the court’s view, Russia’s compliance with international law is relevant, the court held Ukraine to have ‘a good arguable case’ that the foreign act of state doctrine is inapplicable (Ukraine v Law Debenture, para 181). Read the rest of this entry…

 
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Can Intergovernmental Commerce in Human Organs be Legal?

Published on August 23, 2018        Author:  and
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States prefer when their national legislations conform with international law. However, assessing conformity can sometimes be complicated. One may think of a situation where national legislation mandates doing something the state has internationally undertaken not to do, and concluding treaties to serve as the international legal basis for doing so. Should such legislation be regarded as compliant with international law? Can such treaties really remove the prohibition? Such a situation is here exemplified by Ukraine’s new act on organ transplantation (available only in Ukrainian). Although not yet applicable, the act poses a number of difficult questions in relation to both substance and theory.

As to the substance, trafficking in human organs, as well as any other form of human body, commodification is universally condemned on ethical grounds, and prohibited under international law. Where such acts are committed by individuals or entities, the law is relatively clear on responsibility. This clarity dissipates once the possibility of intergovernmental procurement is considered. Hence, as to the theory, a question arises as to whether a state violates international law where it permits the purchase and sale of human organs through its authorised agents in accordance with treaties concluded to that effect. To answer this question, this post will highlight the relevant provisions of Ukraine’s recent legislation, which seem to contravene international standards, and analyse the normative nature of these standards.

Ukraine’s New Transplantation Act Read the rest of this entry…

 
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The Netherlands and Australia Attribute the Downing of MH17 to Russia

Published on May 25, 2018        Author: 
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Yesterday the international Joint Investigating Team (JIT)  published its conclusion that the missile which destroyed the MH17 airliner over eastern Ukraine was fired by a Russian military unit, the 53rd Antiaircraft Missile Brigade. Here’s a summary of the evidence on which the conclusion was based:

Using satellite imagery and a photograph posted on social media, the JIT notes that Buk systems were located in a parking lot on the base of the 53rd brigade in Kursk. Using social-media videos, photographs published online, and geolocation techniques, the investigation concludes that six Buk systems were part of a larger military convoy that left the base on June 23, 2014.

Investigators then reconstructed the route, with the last available images of the convoy coming on June 25, 2014, about 25 kilometers from the Ukrainian border. The convoy includes a Buk missile launcher beginning with the number 3 — indicating it was from the 3rd battalion of the 53rd brigade. Bellingcat, using the same videos, previously assessed that the missile launcher in question was number 332. This is the system the JIT says was used to shoot down MH17.

The Buk launcher that shot down MH17 appeared in Ukraine in several photographs and videos on July 17 — the day of the tragedy — and the following day, according to investigators. Comparing images of that Buk system from the convoy originating from the Kursk base and those taken in Ukraine reveals seven “fingerprints” demonstrating that they show the same missile launcher, the JIT says. These identical “fingerprints” include a center-of-gravity marking, the same partially obscured number beginning with the numeral 3, and a wheel with no spokes in the same spot.

Today the Dutch and Australian governments formally attributed the missile strike to Russia, invoking its responsibility for an internationally wrongful act:

On the basis of the JIT’s conclusions, the Netherlands and Australia are now convinced that Russia is responsible for the deployment of the Buk installation that was used to down MH17. The government is now taking the next step by formally holding Russia accountable.’

State responsibility comes into play when states fail to uphold the provisions of international law. A state can then be held responsible for breaching one or more of those provisions. This is the legal avenue that the Netherlands and Australia have now chosen to pursue. Both countries hold Russia responsible for its part in the downing of flight MH17.

Holding a state responsible is a complex legal process, and there are several ways to do this. The Netherlands and Australia today asked Russia to enter into talks aimed at finding a solution that would do justice to the tremendous suffering and damage caused by the downing of MH17. A possible next step is to present the case to an international court or organisation for their judgment.

Obviously, regardless of the formal invocation of state responsibility, the Russian government is not going to suddenly change its story and admit that its armed forces shot down the MH17, whether acting ultra vires or not. When it comes to Russia’s domestic audience, the JIT’s findings will be easily discredited by the Kremlin’s propaganda machine – but we’ll see how they play out in any  international litigation.

 
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Crimea Investment Disputes: are jurisdictional hurdles being overcome too easily?

Published on May 9, 2018        Author: 
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In February-March 2014, Crimea experienced what is here neutrally referred to as a ‘change of effective sovereign’ (as conceded by Ukraine itself). Subsequent events have given rise to at least nine investment claims by Ukrainian nationals against Russia in connection with their investments in Crimea made prior to the ‘change of effective sovereign’. Substantively, all cases pivot on alleged violations of the expropriation and FET (fair & equitable treatment) clauses of the 1998 Russia-Ukraine BIT. Before getting there, however, a series of jurisdictional hurdles need to be overcome. Firstly, whether the scope of the BIT covers also de facto (as opposed to de jure) territory. Thus, whether under the BIT, Crimea may be understood as Russian territory. Secondly, the BIT’s temporal and personal ambit of application. That is to say, whether Ukrainian nationals and their businesses existing in Crimea prior to the ‘change of effective sovereign’ may qualify, respectively, as foreign Ukrainian investors and investments in Russia. It is doubtful that these questions which, are inevitably intertwined with the public international issue of the legality of the ‘change of sovereign’, can be satisfactorily answered through ‘effective interpretations’ and/or drawing analogies from human rights law. The scope and rationale of investment law differs from that of the latter; the promotion and protection of bilateral business is pursued for the benefit of economic growth, while the protection of fundamental rights and freedoms of persons is undertaken for the good of human kind.  In fact, it is reflected in the standard dispute settlement mechanism envisaged i.e. private ad hoc arbitration v standing international court.

Jurisdictional decisions in five proceedings have recently been rendered. To date, none of these have been made public. Nevertheless, important passages of their reasoning have been uncovered by trusted sources. These allow for a preliminary review of the tribunals’ assessment of the key legal issues involved. Read the rest of this entry…

 

Gravity of the Past: Polish-Ukrainian Memory War and Freedom of Speech

Published on February 22, 2018        Author: 
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There is a power to the words ‘I remember’: the power of an event long past, exerting itself upon the present […] When the words begin a flow of warmth or love, it is a positive, binding power, but it is the most divisive and negative one possible when they lead on to events of death and destruction…

Ilana R. Bet-El

Collective memory matters politically: it provides a nation with an identity and common myth of origin, legitimizing power by creating a desired image of the past. This explains why states are preoccupied with memory, prescribing by law what has to be remembered and what must be forgotten. Revanchism, ethnic cleansing and war are all results of memory. The clash of historical narratives sponsored by states can destroy interstate relations. This happened in the case of Poland and Ukraine; these States were involved in memory war because of the attempts, from both sides, to instrumentilise history and use it for nationalist and populist goals.

These two countries were the ‘bloodlands’ during the Second World War. Yet, they have different memories of controversial events of the twentieth century. Describing the differing memories of the Polish-Ukrainian conflict Timothy Snyder writes:

[…] for patriotic Ukrainians the Organization of Ukrainian Nationalists created a moment of Ukrainian sovereign action by declaring a Ukrainian state under Nazi occupation in 1941 and a lasting memory of national heroism by their doomed struggle, for Poles its UPA [the Ukrainian Insurgent Army. – A.Ch.] was the organization which cleansed Poles from Western Ukraine in 1943 and 1944. Ukrainian patriots […] are unwilling to accept that the UPA did commit mass race murder in 1943-4. Poles […] are apt to believe that the anti-Ukrainian military operations of 1944-7 were a direct result (and a just one) of the UPA’s earlier ethnic cleansing. Both views are substantially incorrect. The UPA did indeed brutally murder […] Polish civilians in 1943-3. But in 1944-7 the Polish communist regime acted to ‘resolve the Ukrainian question in Poland’, not only to liquidate the UPA […]. [C]leansing actions (the word used at the time) […] was carried out in the name of the Ukrainian nation against Poles and in the name of the Polish nation against Ukrainians.

Read the rest of this entry…

 
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(Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine

Published on October 9, 2017        Author: 
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In an increasing number of cases, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has been dealing with the question of the application of the European Convention on Human Rights (‘ECHR’, ‘Convention’) on territories which are outside the control of the state to which they belong. Such lack of control is either because of the occupation by a foreign state or because of the control by a separatist movement, as a rule, established and/or existing with the aid of a foreign state. One of the issues that arises in this context is the (non-)recognition of the regime that exercises control over such territory (the de facto regime).

This blog post looks at the Court’s existing approaches to the (non-)recognition of de facto regimes. It then discusses the implication of this approach for cases involving Eastern Ukraine and Crimea that may come before the Court and require it to deal with the question of (non-)recognition.

Existing approaches

The issue of (non-)recognition becomes particularly relevant when the Court is called on to assess proceedings conducted by the courts of a de facto regime in the light of the Convention. The Court has dealt with the issue of (non-)recognition when deciding on the exhaustion of domestic remedies at the admissibility stage, and on claims relating to freedom from arbitrary detention and the right to a fair trial at the merits stage. Read the rest of this entry…