06 Oct The Russian Citizenship Law in Ukraine and International Law
[Patricio Barbirotto is a research fellow and adjunct professor of International Law at Ca’ Foscari University of Venice, Italy.]
On 11 July 2022, the President of the Russian Federation V. V. Putin signed the Presidential Executive Order n. 440 “on Amending the Executive Order of the President of the Russian Federation No. 183 of April 24, 2019, ‘On the Definition of Categories of Persons Entitled to Apply for Citizenship of the Russian Federation under a Simplified Procedure for Humanitarian Purposes’ and the Executive Order of the President of the Russian Federation No. 187 of April 29, 2019, ‘On Certain Categories of Foreign Citizens and Stateless Persons who Have the Right to Apply for Citizenship of the Russian Federation under a Simplified Procedure’”. By doing so the Russian Federation extended the simplified procedure to obtain the Russian citizenship to all the citizens of Ukraine (and the stateless persons legally resident in Ukraine). The simplified procedure to obtain the Russian citizenship provides that applicants follow a fast-track scheme, which only requires to fill in the application at the local office of the Ministry of Internal Affairs. No requirement such as the 5-year period of permanent residence in Russia nor the evidence of sufficient funds to live in the country is envisaged. This post argues that this act amounts to a violation of international law, in particular to an interference in Ukrainian domestic affairs and a threat to Ukrainian sovereignty.
Ukrainian officials, in particular the Ministry of Foreign Affairs Mr Dmytro Kuleba, declared that this act is a violation of Ukraine’s sovereignty and an interference in the State’s own domestic affairs. The Ukrainian authorities clarified that all the passports issued in Ukraine under the provisions will be considered null and void and therefore they will have no legal value in the country, thus not producing legal effects. Such a behaviour would be perfectly legal under international law, in particular for what concerns those Ukrainian citizens living in the non-occupied territories of Ukraine, and it appears consistent with the prohibition of arbitrary decisions in preventing owns citizens to acquire a second nationality. The Ukrainian vice-PM Ms Iryna Vereščuk went beyond Mr Kuleba’s stance and hinted that a bill to make the application to the Russian citizenship under the fast-track procedure a criminal offence under the Ukrainian criminal code.
On the other hand, passports issued under the fast-track procedure will be perfectly valid according to the law of the Russian Federation and will grant the holders the same rights granted to the citizens of the Russian Federation.
Citizenship and Passport Practice in Post-Soviet Disputed Areas
Granting Russian citizenship and passports (as well as passports of the other involved States) to people from unrecognised, self-proclaimed independent post-Soviet entities is a common practice, and represents the easiest way for Transnistrian, Abkhazian, South-Ossetian and Nagorno-Karabakhian citizens to travel and work abroad. In said cases, although controversial and possibly illegal under international law (as part of a wider interference activity), citizenship is granted exclusively to those who reside in the disputed areas and might therefore be de facto deprived of any recognised citizenship. What is different this time is that Russian citizenship will be granted to all the applicants who are citizens of a sovereign State, regardless of the fact they reside in the areas under Russian military occupation. This marks a huge difference with the previous examples given the escalation of the war in Ukraine, as explained below. Russian citizenship has been granted to the residents of the self-proclaimed Doneck People’s Republic (DNR) and Luhansk People’s Republic (LNR) since 2019 (in Russian here and here). Said provisions have been extended on 4 May 2022 to the residents of the newly occupied parts of the DNR and LNR. A further extension happened on 25 May 2022 when the residents of the seized areas of Zaporizhizhia and Kherson (not claimed either by the DNR or the LNR) were included among the beneficiaries of the fast-track citizenship procedure. It remains unclear how Ukrainian citizens living outside the occupied areas will be able to apply, since the application is to be filled at the local office of the Russian Ministry of Internal Affairs. According to a statement issued by the Russian Ministry of Internal Affairs, said offices are increasing in number and are established in the areas under military occupation.
International Law and Third Parties’ Behaviour
In this regard, it is hard to predict how third States will deal with the matter. Under the concept of exorbitant citizenship, those citizenships granted beyond the limits posed by international law are to be considered non-opposable since the very act of granting the citizenship should be considered illegal. In this case, the exorbitant character of the citizenships granted under the fast-track procedure in Ukraine does not seem to stem per se from the choice of granting Russian citizenship to all the Ukrainian applicants. Arguably, even a genuine link could be assessed in many cases, at least for those who once held a Soviet passport. What makes said citizenships exorbitant is how the naturalisation policy is carried on, in a campaign that hints to a possible abuse of the Russian right to grant its citizenship to foreign nationals: on a large scale, on the whole territory of a State partially invaded by Russia, and used as a tool to influence and destabilise the public opinion of Ukraine; nevertheless, in practice, each State has eventually to assess the validity of said act autonomously and it is unlikely that all the States will agree with on a unified position. The European Union, immediately after the Russian authorities made known the new provisions, stated that it will not recognise the Russian passports issued under the provisions of the fast-track citizenship law. Since Russian citizens need to request a visa in order to travel to the EU, and the visa procedure allows for a deep check on the applicant identity, it will be arguably fairly easy to enforce the non-recognition of the newly issued passports. Those EU States that enforce a visa free policy for Russian citizens will be forced to implement measures, for instance in the form of a database, in order to distinct those Russian passports issued under the fast-track procedure from those Russian passports issued according to the generally accepted procedure. Nevertheless, it seems to be more complicated to imagine that States which hold a balanced position between Russia and Ukraine, not to mention those which are openly on the Russian side, to adopt a harsh non-recognition stance on the issue. It is interesting to remark that the acquisition of Russian citizenship, if recognised, opens to its holders all the opportunities related to the EAEU market, including that of working and making business in any of the EAEU member States.
An Interference in the Internal Affairs of Ukraine and a Threat to Ukraine’s Sovereignty?
Given the war context, such an act does not seem to merely qualify as an unfriendly act but rather an interference in the Ukrainian domestic affairs and a threat to the very sovereignty of Ukraine. In this regard, it’s important to take into account that one of the legal arguments presented by Russia to directly take action on Ukrainian territory was to “protect Russian citizens abroad” and the “Russian nationality” and the “Russian world” elements have been present in all the Russian military interventions in post-Soviet countries. The Russian leadership has been carrying on a rhetoric of denial of the existence of the Ukrainian nation, thus her right to fully exist as a State, completely autonomous from Russia. In this perspective, a large-scale naturalisation campaign addressed to all the Ukrainian citizens is functional to said idea and a large adhesion would be easily considered by the Russian leadership first as a legitimation of the current occupation of Ukrainian land and later as a reason to further extend the conflict, virtually to the whole Ukrainian territory. It cannot be ignored that the Russian Federation is in fact increasing her presence in the occupied areas of Ukraine and is preparing to escalate the war, potentially threatening the very existence of the Ukrainian State. In addition to this, a large-scale naturalisation campaign from the Russian side would deprive Ukraine of the jurisdiction over her own citizens. In fact, the main aim of the Russian decision to extend the fast-track procedure to all the Ukrainian citizens appears to the Ukrainian authorities’ eyes, as affirmed in this statement, as an attempt to turn to assimilate and Russify the Ukrainian population making those living in the occupied areas feeling “part” of the Russian Federation, a dynamic which would eventually result in weakening the Ukrainian resistance against the Russian invasion. Finally, an additional controversial point is that it seems likely that a large number of persons in the occupied territories will be indirectly forced to request Russian citizenship since it will arguably be necessary for everyday-life activities, especially following the referendums on the annexation of occupied territories to the Russian Federation (for instance see here and here, in Russian). In this light, the aforementioned suggestion of the Ukrainian vice-PM Ms Iryna Vereščuk to criminalise those Ukrainian citizens who will opt for the Russian citizenship poses some questions in terms of human rights protection, as the Russian citizenship may be an instrument to obtain access to basic fundamental services such as healthcare and education.