Department of Law Spring Term 2015
Master’s Thesis in International Law 30 ECTS
Statelessness and Nationality
The Case of Non-Citizens in Latvia
Author: Maria Hellborg Supervisor: Professor Inger Österdahl
Summary
Following its restoration as an independent state in the 1990s, the new Republic of Latvia inherited a significant population of former citizens of the Soviet Union who resided legally in the country, but were not given Latvian citizenship. The situation of these "non-citizens" of Latvia remains an unresolved issue, which has bearing on international law by its close connection to the concepts of nationality and statelessness. The issue also holds importance because of its implications for Latvia as a country, and for its consequences in relation to regional stability. From a perspective of contemporary international law this thesis will examine whether the non-citizens of Latvia are to be considered as constituting stateless individuals. The thesis will also address the question of whether the Latvian non-citizens are, through their legal status, limited in their access to human rights. Finally the thesis will discuss how the issue of non- citizens affects regional stability through the Latvia-Russia relationship.
List of Abbreviations
1954 Convention The 1954 Convention Relating to the Status of Stateless Persons 1961 Convention The 1961 Convention on the Reduction of Statelessness 1930 Hague Convention The Convention on Certain Questions relating to the Conflict of Nationality Laws Art. Article CBSS The Council of the Baltic Sea CERD The Committee on the Elimination of All Forms of Racial Discrimination CIS Commonwealth of Sovereign States CoE Council of Europe CRC Convention on the Rights of the Child ECN 1997 European Convention on Nationality ECHR European Convention on Human Rights ECtHR European Court of Human Rights EU European Union EU-MIDIS European Union Minorities and Discrimination Survey ICCPR 1966 International Covenant on Civil and Political Rights ICERD 1965 International Convention on the Elimination of All Forms of Racial Discrimination ICJ International Court of Justice ICJ Statute Statute of the International Court of Justice ILC International Law Commission KGB Komitet Gosudarstvennoy Bezopasnosti LTR Long Term Resident NATO North Atlantic Treaty Organisation NCC Non-Citizens Congress NGO Non-Governmental Organisation OSCE Organisation of Security and Co-operation in Europe PCIJ Permanent Court of International Justice TCN Third Country National TFEU The Treaty on the Functioning of the European Union UN United Nations UNHCR United Nations High Commissioner for Refugees UDHR 1948 Universal Declaration of Human Rights USSR Union of Soviet Socialist Republics
Table of Contents
1. Introduction 2 1.1. Background 2 1.2. Purpose and Research Questions 2 1.3. Method and Material 3 1.4. Disposition 3 1.5. Delimitation 4
2. Historical Context 5 2.1. Independent Latvia 5 2.2. Restoration of citizenship 6
3. Statelessness in International Law 7 3.1. 1954 Convention Relating to the Status of Stateless Persons 8 3.1.1. De jure statelessness 10 3.1.2. Concept of Nationality 11 3.2. 1961 Convention on the Reduction of Statelessness 12 3.3. The Connection Between International and National Legislation 14
4. International Human Right Treatises Concerning the Protection of Stateless Persons 15 4.1. International Human Rights Treatises 15 4.2. International Principles in Relation to Statelessness 17 4.3. The Connection Between Citizenship and Human Rights 21
5. Regional Protection in Europe 23 5.1. European Convention on Nationality 24 5.2. Case Law of the European Court of Human Rights 25 5.3. EU Citizenship and Third Country Nationals 26 5.4. Changes in Latvian policy due to EU accession 29
6. The Case of Latvia 29 6.1. The Concept of Non-Citizens – Stateless or Not? 29 6.2. Access to Naturalisation 34 6.3. The Naturalisation Process 37 6.4. Stateless, Non-citizens or de facto citizens? 40 6.5. Non-citizens and Human Rights 43
7. Russian criticism and interference 47
8. Conclusions 51
9. References 54
1 1. Introduction
1.1. Background
During the Soviet occupation of Latvia between 1940 and 1991, hundred of thousands Soviet citizens moved to Latvia in connection with the russification policy carried out by the Soviet leadership. After the collapse of the Soviet Union in 1991, Latvia once again became an independent state. The Latvian state restored the citizenship laws of the inter-war independent republic of Latvia, leaving almost 750,000 USSR settlers without a citizenship. However, the Latvian state did not recognise the USSR settlers as stateless. Instead Latvia argued that these people belonged to a new category, namely non-citizens. The non-citizens have an opportunity to be naturalised and thereby become Latvian citizens, but in spite of this this option the group of non-citizens still constitute almost 280,000 individuals and non-citizens make up about 13 per cent of the entire Latvian population.1
According to Art. 1 of the 1954 Convention Relating to the Status of Stateless Persons (1954 Convention), a stateless person is a person who is not considered as a national by any State under the operation of its law. Despite this, the Latvian state does not recognise the Latvian non-citizens as stateless. Some international bodies have accepted this notion, but there are also those who take the contrary view. The question whether non-citizens should be considered stateless or not is therefore disputed.
1.2. Purpose and Research Questions
The situation of Latvia’s non-citizens is still an unresolved issue emanating from the disbandment of the Soviet Union. The question is not only of importance on an individual level but also for the Latvian state, since the issue has consequences for the Latvian-Russian relations and thereby also for the regional stability. The purpose of this thesis is to assess whether the non-citizens of Latvia should be considered as stateless in the view of contemporary international law, and whether the status as non-citizens is
1 Office of Citizenship and Migration Affairs, Republic of Latvia, Iedzīvotāju skaits pašvaldībās sadalījumā pēc valstiskās piederības , (Population in municipalities distributed by nationality), 01.07.2014.
2 limiting their access to human rights (assessed from both an international and regional perspective). Furthermore, I will also examine how the issue of non-citizens affects Russia-Latvian relations and regional stability. In summary, this thesis sets out to answer the following questions:
− Are the Latvian non-citizens stateless according to international law? − Does the lack of citizenship adversely affect the human rights of non-citizens in Latvia? − Does the continued existence of non-citizens in Latvia have consequences for regional stability?
1.3. Method and Material
Throughout this thesis, the legal dogmatic method will be used. I will assess the current situation with the help of relevant conventions. As a supplement to these sources I will use literature and case law, both international and national. There are some sources in Latvian and Russian languages, but English sources have been used to the extent it was possible.
1.4. Disposition
The thesis is divided in to four main parts. First, the thesis will shortly describe the history of citizenship in Latvia in order to provide the reader with an understanding of the context surrounding the issues. Second, I will investigate the concept of statelessness and nationality within the framework of international law, and discuss the international and regional human rights regimes that are currently in force and extend protection to stateless individuals. The third part will discuss more specifically the Latvian situation, where I will go through the concept of non-citizens as it is applied in Latvia. In connection to this, I will also assess the importance of a nationality, and whether the non-citizens of Latvia need a nationality in order to enjoy their human rights and the protection of the state. In the fourth and last part I will briefly discuss the influence of Russia on Latvian domestic policies and examine whether this, in connection to the issue of the non-citizens, might constitute a threat to regional stability.
3 Due to the complexity of these issues, the last part will be restricted specifically to questions that are related to the issue of Latvian non-citizens.
1.5. Delimitation
This paper will investigate the question of non-citizens in Latvia from a perspective of statelessness and human rights, as it relates to international law. Therefore it will not explicitly deal with matters specifically concerning minority protection and minority rights, although these issues are related. While the consequences of the issue of non- citizens for Russian-Latvian relations and regional stability will be discussed, the potential EU-Russian dimension of this issue will not be addressed. Finally, there are several human rights treatises that deal with the issues of nationality and statelessness, but only those who has relevance to Latvia will be examined in the part concerning human rights and nationally.
4 2. Historical Context
2.1. Independent Latvia
Latvia has a long tradition of being a multi-ethnic society, and until the turn of the 20th century Latvia had never been an independent country. It had, for example, been a part of both the Swedish and the Russian Empires. In 1918, Following the Russian (Bolshevik) revolution in 1917, Latvia became an independent state for the first time. The newly formed Latvian republic rapidly developed into a modern western country, becoming a parliamentary democracy and establishing foreign trade relations with its western neighbours. It also became a full member of the League of Nations.2
The period of independence, however, turned out to be short lived. In June 1940 Soviet troops invaded Latvia, following the Molotov-Ribbentrop-pact between the Soviet Union and Nazi Germany, and the country became a member of the Soviet Union. Latvia remained under soviet control, except for a brief occupation by Nazi Germany between 1941 and 1944, until the country once again regained its independence in 1991. The Soviet occupation, as well as the previous occupation by the Russian Empire, led to a russification of Latvian society. The policies of russification penetrated many aspects of society and culture; the Russian language became the first language in all official matters, including the education system and Latvian literature and culture were banned. During the period of Soviet rule, thousands of ethnic Russian, Ukrainian and Belarusian settlers were moved to Latvia at the same time as large numbers of Latvians were deported to work in Soviet labour camps. This was a deliberate strategy by the Soviet leadership intended to change, and in some cases weaken, the ethnic composition of the country since Slavs were considered to be more political reliable than Balts.3 After the independence, the increased number of different ethnic minorities, primarily ethnic Russians and Russian-speakers, became an issue for Latvia. Due to the russification process, the ethnic Latvians had been reduced from around 75 per cent in the inter-war period, to only 52 per cent in 1991. The fear of losing their national identity and language, and concerns about becoming a minority in their own land, lead to an increase
2 Kalvaitis, R, ”Citizenship and national identity in the Baltic States”, Boston University International Law Journal, 1998, p. 233f. 3 A.a., p. 234-236.
5 in nationalistic sentiments in Latvia. This led to growing tensions between ethnic Latvians and the Russian-speaking minorities, who were often viewed as alien colonists and occupants associated with the former Soviet Union. The situation became more complicated due to the fact that few Russian-speakers knew how to speak or write the Latvian language, and many were not accustomed to the Latvian culture.4
2.2. Restoration of citizenship
At the establishment of the Soviet Union (in Latvia’s case in 1940), every individual who resided on Soviet territory became a Soviet citizen. This meant that after the unions collapse, all former Soviet subjects held a citizenship to a non-existing state. After independence Latvia started to re-enact their state, including the country’s citizenship laws from the inter-war period, and each individual residing on Latvian territory had three options; accept Russian citizenship, become a citizen of Latvia (which for many Soviet settlers required strict language and residency requirements), or become stateless.5
In international law, there is a distinction between states that are a legal continuation of a former state, and those who are the successor of a state. A successor state is required to take on new rights and obligations, since when a succession occurs one international personality takes the place of another.6 As a consequence, new legislation would need to be created, which would give a significant role to international human rights law. A state that is a legal continuation of a pre-existing state, however, carries all the rights and obligations of the previous state. After independence, Latvia chose the latter option; they considered themselves to be a continuation of the inter-war Latvian republic and not a new state. This view was also held by many western countries which, throughout the Soviet period, kept their de jure recognition of the independent Latvian state. The choice of legal continuity, rather than state succession, had implications for Latvias legislative system, including its citizenship laws. In contrast to a newly formed state, which has a tabula rasa concerning laws and policies, a legal continuation of a pre-
4 A.a., p. 237f. 5 A.a., p. 239-241. 6 Gelazis, N.M., “The European Union and the Stateless Problem in the Baltic States”, European Journal of Migration and Law, 2004, p. 228, Kalvaitis, R, ”Citizenship and national identity in the Baltic States”, p. 241-243, Kruma, K, “Country report: Latvia”, EUDO Citizenship Observatory, 2013, p. 2-4, 10, 13, Shaw, M.N., International Law, Sixth Edition, 2008, p. 959-961.
6 existing state already has a body of citizens, as well as legislation concerning citizenship.7
Latvia invoked a principle of ex iniuria ius non oritur, i.e. that illegal actions cannot create legal situations, with regard to the Soviet occupation which Latvia viewed as illegal. Under this view, Latvia re-established the inter-war republic and claimed that all events that occurred during the Soviet occupation were illegal. As a consequence, the Latvian law on citizenship from 1919 was re-installed. Citizenship was automatically awarded only to those who were citizens before 1940 and their descendants, according to the principle of ius sanguinis.8 It was also given to persons born and residing in Latvia whose parents were unknown, to non-Latvians who had graduated from Latvian language secondary schools, and to individuals married to Latvian citizens for at least 10 years. Latvia also made special provisions to those Latvians who had emigrated, both by force and by choice, during the Soviet period. The 1940 Soviet legislation on citizenship was declared null and void, and the settlers who moved to Latvia during the Soviet period had to go trough a naturalisation process in order to become Latvian citizens. Consequently, a new category of people was introduced in Latvia to describe the people who became subjects of the new Latvian state but did not receive Latvian citizenship. The category of people belonging to this particular legal status is referred to as the Latvian non-citizens.9
3. Statelessness in International Law
Statelessness can occur for various reasons. One of the most common is when states are built to achieve ethnic homogeneity, which often occurs when a state is dissolved and the newly formed state tries to create a national identity to oppose the former. The denial of citizenship can be used as a form of retaliation or in an attempt to alleviate future threats to the nation. As in the case of Latvia, many perceive non-citizens as
7 Gelazis, N.M., “The European Union and the Stateless Problem in the Baltic States”, p. 228, Kalvaitis, R.M., ”Citizenship and national identity in the Baltic States”, p. 241-243, Kruma, K, “Country report: Latvia”, p. 2-4, 10, 13, Shaw, M.N., International Law, p. 959-961. 8 Gelazis, N.M., “The European Union and the Stateless Problem in the Baltic States”, p. 228, Kalvaitis, R.M., ”Citizenship and national identity in the Baltic States”, p. 241-243, Kruma, K, “Country report: Latvia”, p. 2-4, 10, 13, Shaw, M.N., International Law, p. 661. 9 Gelazis, N.M., “The European Union and the Stateless Problem in the Baltic States”, p. 228, Kalvaitis, R.M., ”Citizenship and national identity in the Baltic States” p. 241-243, “Kruma, K, Country report: Latvia”, p. 2-4, 10, 13.
7 former oppressors and a potential threat to the nation. This approach can, however, create unrest within the state since the denial of citizenship can become a cause for conflict. The conflict may be violent or latent, internal or international, but denial of citizenship can be linked to various degrees of conflicts. This is why the denial of citizenship is not just a matter for one state but for the international community as a whole.10
There are two main treaties addressing the issue of statelessness; the 1954 Convention Relating to the Status of Stateless Persons (1954 Convention) and the 1961 Convention on the Reduction of Statelessness (1961 Convention). These treaties are designed to address the issue and specific problems of statelessness on a global scale. Currently, the 1954 Convention has 80 state parties globally and the 1961 Convention has 55. One regional convention is complementary to the two global conventions, namely 1997 European Convention on Nationality (ECN), which have 20 state parties. Latvia is a member of both the global and regional conventions. However, according to the United Nations High Commissioner for Refugees (UNHCR) the main treaties are not sufficient to prevent and reduce statelessness if applied in isolation. Instead they need to be applied in consistency with other treaties concerning statelessness, especially human rights treaties.11
3.1. 1954 Convention Relating to the Status of Stateless Persons
The 1954 Convention was created to broaden the definition of statelessness by offering protection to a greater number of persons, since at that time only refugees were considered stateless (under the Refugee Convention).12 The 1954 Convention states in Article 1(1) that a person shall be considered stateless if that person “is not considered as a national by any State under the operation of its law” and it is applicable to all non- refugee de jure stateless persons. The main issue under Article 1(1) is whether a person
10 Collins, C, Weissbrodt, D, “The Human Rights of Stateless Persons”, Human Rights Quarterly, 2006, p. 261-262, Sokoloff, C, “Denial of Citizenship: A Challenge to Human Security”, The Advisory Board on Human Security, 2005, p. 25-26. 11 Manly, M, “UNHCR’s Mandate and Activities to Address Statelessness in Europe”, European Journal of Migration and Law, 2012, p. 264, United Nations, “State Parties to the 1954 Convention Relating to the Status of Stateless Persons”, Treaty Series, 2014, p. 117, United Nations, “State Parties to the 1961 Convention on the Reduction of Statelessness”, Treaty Series, 2014, p. 175, Council of Europe Treaty Office, “European Convention on Nationality”, 2014. 12 Kalvaitis, R.M., “Citizenship and National Identity in the Baltics”, p. 252-253.
8 has a nationality, not if the nationality is effective or not and the article is applicable to all stateless persons regardless where the person is currently residing. The treaty’s main object and purpose is to secure the widest possible enjoyment of every stateless persons human rights and according to the International Law Commission (ILC) the definition of Art. 1(1) is part of international customary law.13 The 1954 Convention can be considered a lex specialis in comparison to general international human rights law due to the fact that the 1954 Convention not only establishes an autonomous legal status for all stateless persons globally, but also grants the stateless civil, political, economic, cultural and social rights by setting out some 30 provisions for the minimum treatment of stateless persons. However, State Parties are free to extend the protection and rights for stateless persons residing on its territory.
The protection can be dived into three different levels. The first one gives rights and treatment at least as favourable as to other aliens (such as the right to acquire movable and immovable property (Art. 13), right of association (Art. 15), right to wage-earning employment (Art. 17 (1)), right to self-employment (Art. 18), right to housing (Art. 21) and the right to choose the place of residence and to move freely within the country (Article 26)). The second level is supposed to grant the stateless with the same rights as the citizens (this level concerns freedom of religion (Art. 4), access to courts and legal assistance (Art. 16), elementary education (Art. 22 (1)), social and employment security (Art. 24 (1)), not impose charges or taxes higher than the citizens (Art. 29 (1)). The third level is not in par with any other group but should be granted directly, and relates to the stateless special needs (issuance of identity paper and travel documents (Art. 27- 28) and the state should also facilitate a possibility to naturalisation (Art. 32)). Further, the 1954 Convention also states in Art. 31 that the State Parties shall not expel a stateless person (who is residing there lawfully), except in case due to a process in a court of law.14 Even though the 1954 Convention is rather extensive in granting stateless persons with basic rights, the Convention has some weaknesses. For instance, there is no supervisory body set up in the Convention which has within its jurisdiction
13 UNHCR, “Expert meeting The Concept of Stateless Persons under International Law Summary Conclusions”, 2010, p. 2, Molnár, T, “Remembering the Forgotten: International Legal Regime Protecting the Stateless Persons – Stocktaking and New Tendencies”, US-China Law Review, 2014, p. 831. 14 Molnár, T, “Remembering the Forgotten: International Legal Regime Protecting the Stateless Persons – Stocktaking and New Tendencies”, p. 832.
9 to monitor the situation concerning statelessness. Furthermore, the Convention is not self-executing since Art. 33 explicitly states that it is each contracting states responsibility to adopt domestic legislation in order to fulfil their international commitments. Finally, the Convention does not contain provisions on the statelessness determination process, which is also the responsibility of each State Party.15 According to Kalvaitis, the principles of the 1954 Convention can be seen as having become customary law.16
3.1.1. De jure statelessness
As mentioned above, the 1954 Convention only applies to those persons who are considered to be de jure stateless. A person is considered to be de jure stateless if that person is not recognised as a national of any state. The two most basic principles behind a majority of citizenship laws are the principles of jus soli and jus sanguinis. Jus soli means the law of the land and refers to citizenship that is granted to those who are born on the territory of a state. Jus sanguinis on the other hand means that citizenship is based upon heritage or descent. Most countries do not administer only one of the principles, but rather employs a mixture of them both. For example, the U.S. recognises both persons born on their territory (regardless of the parents nationality) and persons born to American parents elsewhere as American citizens. If the principle of jus sanguinis is upheld strictly it can become problematic when a child is born to stateless parents since that child also will become stateless, and the status consequently would become inherited and the number of stateless persons not reduced.17 Statelessness is not a desirable status because stateless persons encounters difficulties due to the lack of a state’s protection and a large group of stateless persons in a region can cause regional instability due to uncertainty and ethnic tensions.18 This is also why Art. 5 of the Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and Art. 7 of the Convention on the Rights of the Child (CRC) precludes national laws which are only based upon the principle of jus sanguinis. Since the CRC is almost universally ratified the place of birth, rather than of descent, has become the international norm for
15 A.a., p. 834. 16 Kalvaitis, R.M., “Citizenship and National Identity in the Baltics”, p. 252-253. 17 Kalvaitis, R.M., “Citizenship and National Identity in the Baltics”, p. 248. 18 A.a., p. 251.
10 granting citizenship to children born to stateless persons.19 According to state practice in state succession, citizens or permanent residents becomes citizens of the newly formed state after the old state has dissolved.20 However, due to Latvias choice to state restoration instead of succession this is not applicable in the case of Latvia.
3.1.2. Concept of Nationality
In Art. 1(1) in 1954 Convention the term nationality is used. Blackman suggests that there have to be a distinction between nationality as a legal term, which describes the membership of a state, and nationality as ethnical term which includes a historical relationship to a specific ethnic, racial or linguistic group. This is particularly important in ethnic homogenous states, however it is important to separate them. The International Court of Justice (ICJ) gave a definition of nationality where it stated that “[N]ationality is 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”.21 It is also important to make a distinction between nationality under international law and nationality under national law. In domestic law the concept of nationality is a relationship that is created between an individual and the state that determines a persons individual rights. Therefore it has been said that nationality is nothing less than the right to have rights.22 The concept of nationality in international law is somewhat different since nationality determines to which state to allocate an individual, and also determines different rights and duties between states. In international law the term nationality is a mere categorization of individuals between states. Furthermore, the conception of nationality in international law is closely linked to state sovereignty, since a state has sovereignty over not only its territory but also its nationals or citizens. Therefore, if one state harms or in any other way threatens a citizen of another state, the state has the right of protection against the threatening state. This is the fundamental principal of diplomatic protection.23
19 Collins, C, Weissbrodt, D, “The Human Rights of Stateless Persons”, p. 254- 256. 20 Kalvaitis, R.M., “Citizenship and National Identity in the Baltics”, p. 248. 21 International Court of Justice, Nottebohm case, Second phase, April 1955, p. 23. 22 Batchelor, C.A., “Stateless Persons: Some Gaps in International Protection”, International Journal of Refugee Law, 1995, p. 234-235. 23 Blackman, J.L, “State Succession and Statelessness: The Emerging Right to an Effective Nationality Under International Law”, Michigan Journal of International Law, 1997-1998, p. 1146-1149.
11 Since nationality is an individuals primary link to a state, it is also the primary link to the system of international law. This is due to the fact that the legal system of international law is centred around the system of states. It is also the bond or link to a state that gives an individual her primary tool to exercise or benefit from different social and political rights awarded to an individual under international law, and to obtain diplomatic protection. Therefore the status of statelessness is a particularly grave situation, and an individual is in need of this link to be able to exercise her rights and benefits. It may also be important to be able to allocate and decide under which states jurisdiction an individual falls. Without the protection of one state, any state can seek to exercise jurisdiction over an individual.24 Batchelor suggests that being a national of a state also gives an individual the right to participate and fully enjoy one’s rights as a member, instead of just becoming a mere observant. It is also through this relationship that both states and members of states are granted with rights and duties. It is trough the state that an individual can become an identity under the law, both national and international.25
3.2. 1961 Convention on the Reduction of Statelessness
The other main convention concerning statelessness is the 1961 Convention. The 1961 Convention focuses on the reduction of statelessness, in contrast to the 1954 Convention which focuses on the protection of stateless persons. The convention focuses on decreasing statelessness, tough it contains rules concerning citizenship that every State Party to the 1961 Convention has to adopt. It sets out rules for states to avoid situations where persons might lose their citizenship, and stipulates that states must also provide an opportunity for persons born on their territory to obtain citizenship.26 The 1961 Convention is therefore not content with avoiding statelessness, but also aspires to actually prevent and reduce it. For example, Art. 1 and 4 states that a person should be granted citizenship of the state in which he was born if the individual otherwise would become stateless, and that the contracting parties cannot deprive a national of its citizenship if he not at the same time acquires a citizenship of another state. This can be done either by birth, operation by law, or under procedural condition.
24 A.a., p. 1150. 25 Batchelor, C.A., “Stateless Persons: Some Gaps in International Protection”, p. 234-235. 26 Collins, C, Weissbrodt, D, “The Human Rights of Stateless Persons”, p. 247-248.
12 According to Art. 9 an individual cannot be deprived of his nationality on the grounds of religion, race, ethnicity or political opinion. Furthermore, the 1961 Convention also obliges States to prevent statelessness in cases of territorial transfer. The 1961 Convention also prescribes circumstances where a state is not obliged to grant citizenship to an individual where it otherwise should be done, namely if an individual has conducted himself in a way which could seriously be harmful to the states vital interests.27 Even though the 1961 Convention was the first convention to prohibit State Parties from depriving individuals of their nationality if this could render statelessness, the Convention does also contain rather broad exemptions from this main rule. The Convention permits a state to subject a naturalized person to statelessness if that person has not resided on the territory for at least seven consecutive years, and if citizenship was acquired through fraud or misrepresentation. The convention also allows a state to subject a person to statelessness if that individual has failed in showing proper allegiance to the contracting state. An example of this is if the individual received payments from another state, conducted himself in manner which seriously damages the states vital interests, given allegiance to another state, or given evidence of repudiating his allegiance to the contracting state.28 Another failing of this Convention is that it does not grant citizenship retroactively to all stateless residing on the particular territory.29
Art. 11 of the Convention sets out a provision allowing for an international body to protect stateless persons. In 1975 when the Convention came into force, the UNHCR became appointed as that body since there is no specific body for protection of stateless persons. Since then the UNHCR has worked as a monitoring body and provided states with technical and advisory services on several areas, such as domestic legislation in order to prevent and reduce statelessness.30 UNHCR also has an extended mandate to assist states in drafting national laws. According to Sokoloff, it is important that UNHCR continues to be involved in matters of denationalization, since UNHCR, given its position, has the opportunity to create solutions to the root of displacement.31
27 Kalvaitis, R.M., “Citizenship and National Identity in the Baltics”, p. 253-254. 28 Blackman, J.L, “State Succession and Statelessness: The Emerging Right to an Effective Nationality Under International Law”, p. 1178-1179. 29 Blitz, B.K., “Statelessness, protection and equality”, Refugee Studies Centre, 2009, p. 6. 30 Blackman, J.L, “State Succession and Statelessness: The Emerging Right to an Effective Nationality Under International Law”, p. 1180-1181. 31 Sokoloff, C, “Denial of Citizenship: A Challenge to Human Security”, p. 34.
13 3.3. The Connection Between International and National Legislation
Under international law, questions concerning nationality and citizenship has for a long time been considered a domestic issue, and there is no such thing as an international nationality (although an individual can be a citizen of the European Union). Art. 1 in the Convention on Certain Questions relating to the Conflict of Nationality Laws (1930 Hague Convention) states that “It is for each state to determine under its own laws who are nationals (…) In so far as it is consistent with international conventions, international customs, and the principles of law generally recognised with regard to nationality” and Art. 2 stipulates that “any question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that state”. However, the Permanent Court of International Justice (PCIJ) said in the Tunis and Morocco Nationality Decrees case that a state’s discretion over nationality issues is subject to international limitations, and that these limitations evolve along with the development of international law.32 Later on, the Inter-American Court on Human Rights also stated that “despite the fact that it is traditionally accepted that the conferral and recognition of nationality are matters for each State to decide. Contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by the States in that area and that the manner in which States regulate matters bearing on nationality cannot today be deemed to be within their sole jurisdiction.”33 This attitude has later been conferred by the same court in the case of Dilcea Yean and Violeta Bosico v. Dominican Republic, where the court states that although states have discretion of their own territory they are still responsible for abiding international human rights standards.34
The Special Rapporteur for the ILC commented that States were no longer a private club which could selectively and exclusively choose who could become a member of that state and who could not.35 According Batchelor, due to recent developments in
32 Blackman, J.L, “State Succession and Statelessness: The Emerging Right to an Effective Nationality Under International Law”, p. 1152-1154. 33 Proposed Amendments to the Naturalization Provision of the Political Constitution of Costa Rica, Advisory Opinion OC-4/84 of 19 January 1984, Series A No. 4, para. 32. 34 Batchelor, C.A., ”Transforming International Legal Principles Into National Law: The Right to a Nationality and the Avoidance of Statelessness”, Refugee Survey Quarterly, 2006, p. 10 35 Cordóva, R, “Nationality, including Statelessness – Report on the Elimination or Reduction of Statelessness by Roberto Cordova, Special Rapporteur”, Extract from the Yearbook of the International Law Commission, 1953, p. 186.
14 international law, states have to take international law into consideration when drafting national legislation, or other states are not bound to recognise these laws. This includes contractual obligations, customary international legal norms, developments concerning human rights, and what impact a domestic law can have on the international community as a whole, and if national legislation is not in par with Art. 1 of the 1930 Hague Convention. Furthermore, Batchelor also suggest that the issue of statelessness is a concern for the entire international community. If one state fails to grant nationality to a group of people, this can become a problem for all states36 This leads to the conclusion that national laws on citizenship and nationality need to be in coherence with international law, especially concerning the various conventions concerning human rights.
4. International Human Right Treatises Concerning the Protection of Stateless Persons
4.1. International Human Rights Treatises
Citizenship can be translated into a membership of a state and it carries with it three basic rights; the right to reside permanently on a states territory including the right to return to it, the right to be protected by the state inside or outside of the states boarders and it also grants a set of rights which are intended to empower the individual, namely political, social and economic rights. Further, a citizenship does not only mean protection by the state, but also protection from the state, concerning the access to justice and courts.37 Nationality has been described as granting the right to have rights. However, Weissbrodt and Collins suggest that this is somewhat dated due to the fact that several international treaties and conventions grant every individual a set of right regardless whether they are nationals or not. They believe that the international principles of human rights would rather indicate that being human is the right to have
36 Batchelor, C.A., “Stateless Persons: Some Gaps in International Protection”, p. 236, Batchelor, C.A., “Transforming International Legal Principles Into National Law: The Right to a Nationality and the Avoidance of Statelessness”, p. 10, Kalvaitis, R.M., “Citizenship and National Identity in the Baltics”, p. 246. 37 Sokoloff, C, “Denial of Citizenship: A Challenge to Human Security”, p. 5.
15 human rights. Many human rights instruments, they argue, diminish the importance of citizenship.38
Art. 15 of the 1948 Universal Declaration of Human Rights (UDHR), which applies to all individuals, for the first time set out every individuals right to a nationality. The article states that everyone has the right to a nationality and no one shall be arbitrarily deprived of his nationality. According to Blackman, the article is somewhat ground- breaking, but it may lack in importance since the article is too vague to give it immediate force. This is due to the fact that it is not specific enough as to which nationality one has the right to, and under what circumstances.39
The 1966 International Covenant on Civil and Political Rights (ICCPR) was intended to provide a more specified definition of rights than the Universal Declaration. The term nationality is, however, just mentioned once in Art. 24 of ICCPR, where it states that every child shall be registered immediately at birth and has the right to obtain a nationality. Blackman suggests that this provision, again, is to vague, since it fails to give a specific definition of who is responsible to grant a nationality.40 On the other hand, the ICCPR does provide that it is the states that guarantee rights to all persons within their jurisdiction. The ICCPR does explicitly address the issue of nationality just once, but it also includes protection of arbitrary expulsion (Art. 13), provides equality before the law (Art. 26) and protection of minority rights by the prohibition of forced assimilation and denial of citizenship due to arbitrarily defined grounds, such as linguistic and cultural background (Art. 27).41 The ICCPR, however, does give a state the right to draw a distinction between citizens and non-citizens in the case of political rights. In Art. 25 the ICCPR sets out that every citizen shall have the right to participate in public affairs, such as the right to vote, hold office and have access to public service. Furthermore, other distinctions between citizens and non-citizens can be consistent with Art. 26 if they are based on a reasonable and justified decision.42
38 Collins, C, Weissbrodt, D, “The Human Rights of Stateless Persons”, p. 248-249. 39 Blackman, J.L, “State Succession and Statelessness: The Emerging Right to an Effective Nationality Under International Law”, p. 1172. 40 A.a., 1172. 41 Blitz, B.K., “Statelessness, protection and equality”, p. 17-18. 42 Weissbrodt, D, The Human Rights of Non-citizens, First Edition, 2008, p. 46-47.
16 The 1989 Convention on the Rights of the Child (CRC) relates to universal protection of the child, including its right to citizenship and related matters. The CRC is pre-emptive, just as 1961 Convention, since it sets out provisions to reduce and abolish statelessness. Art. 7 CRC stipulates and explicitly requests states to ensure that measures are taken in cases where a child otherwise would become stateless, and that every child has the right to a nationality. The CRC adds weight to children’s claims to citizenship through its almost global recognition.43 The convention has been ratified by 194 states.44
Art. 5 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) stipulates that every person has the right to a nationality and equality before the law, regardless of their race, colour or national or ethnic origin. However, the convention allows states to make exceptions from the main rule of non- discrimination, although it is rather narrow. It indicates that a state may make distinctions between citizens and non-citizens (Art. 1(2)), but at the same time requires the states to have equal treatment between different groups of non-citizens (Art. 1 (3)). The Committee on the Elimination of All Forms of Racial Discrimination (CERD) has also indicated that states may only make distinctions between citizens and non-citizens as long as the particular distinction does not have any negative inflictions on other rights enjoyed by non-citizens granted upon them through other international obligations or treaties. According to CERD, discriminatory treatment is forbidden if it is inconsistent with the objectives and purposes of the Convention or does not fall under its Art. 1 (4), which constitutes the Conventions special measures.45
4.2. International Principles in Relation to Statelessness
According to Art. 38 (1c) of the ICJ Statute, one source of international law in cases of dispute is the “general principles of law recognized by civilized nations“. These general principles, which can be found both in international conventions and case law in, can be relied upon in cases where authority cannot be readily found in other sources of international law. There are a few principles of international law that indirectly or directly relates to the issues of statelessness and nationality.
43 Blitz, B.K., “Statelessness, protection and equality”, p. 18-20. 44 UN Treaty Collection, “1989 Convention on the Rights of the Child”. 45 Weissbrodt, D, The Human Rights of Non-citizens, p. 48-49.
17
The prohibition of discrimination due to ethnicity, race, religion, language or political opinions constitutes a limitation to a state’s decision to grant citizenships. The principle of non-discrimination can be concluded from several articles in different human rights treaties. As mentioned above, Art. 1(3) in ICERD prohibits any state party to discriminate against a certain nationality while deciding if citizenship or naturalisation should be granted to that person. Art. 9 in the 1961 Convention states that citizenship can not be deprived due to a persons ethnicity, race, religion or political opinions.46 Further, Art. 2 in the UDHR provides that “everyone is entitled to all the rights and freedoms set fourth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The norm on non-discrimination can also be found in Art. 26 ICCPR where it states that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law”. According to Blackman, Art. 26 ICCPR is the most significant article concerning nationality, since the article applies autonomously to all acts of legislation taken by a state, including legislation concerning nationality, and not only to the other provisions set out by ICCPR. Also, the ILC has emphasised that the norm of non-discrimination in Art. 26 ICCPR is applicable to all states, by international law, and also applies to nationality matters.47 With this in mind, Gelazis suggests that the Latvian citizenship legislation is somewhat based on ethnicity, due to its stiff language tests and the regulation that former Soviet army personnel can not be granted citizenship. This is based on the entire group and not on individual level. This seems, according to Gelazis, to be an attempt from Latvias side to single out the ethnic Russian population as unsuitable to gain Latvian citizenship (especially since both Estonians and Lithuanians who resided on Latvian territory all got automatic citizenship after the fall of the Soviet Union). However, one counter argument is that Latvia simply are trying to “correct” 50 years of discrimination towards Latvians by Russia, and that all measures taken by the Latvian state while independent was intended to special protection as set out in Art. 26 of the ICCPR to re-establish equality between the different ethnic groups in Latvia. This
46 Gelazis, N.M., “The European Union and the Stateless Problem in the Baltic States”, p. 233-234. 47 Blackman, J.L, State Succession and Statelessness: The Emerging Right to an Effective Nationality Under International Law, p. 1183-1185, Mikulka, V, ”Third Report on Nationality in Relation to the Succession of States, International Law Commission, p. 91, art. 12(8).
18 argument is based upon the view that, before the independence, Latvians were the discriminated group.48
The principle of an effective link derives from the recognition that in order for an individual to request citizenship from a state, there has to be some kind of link between the state and the individual, such as birth or residency in the state in question.49 Latvia has argued that they did not permit automatic citizenship to all USSR settlers due to the fact that they had an effective link to other successor states of the Soviet Union, rather than to Latvia, which is why Latvia demanded a naturalisation process including knowledge of the Latvian language, the country’s history, constitution and anthem.50 Since the independence, Russia has stated a concern for the non-citizens (since they to a large extent consists of ethnic Russian and Russian speakers) in Latvia and they have committed to promote its interest in their “near abroad”.51 Given this, and the history of Russian aggression, Gelazis argues that Latvia may be justified in its demand that the USSR Settlers not only break the political ties to Russia, but also commit themselves to their adoptive country.52
In the Nottebohm case, the ICJ stated in its ruling that nationality is a legal bond that gives the holder certain social rights, not only political rights.53 The case concerned whether Lichtenstein could provide diplomatic protection for one of its nationals, Mr Nottebohm, in relation to Guatemala, when the latter country rather considered Nottebohm to be of German nationality. The court recognised the importance of social rights, and the relevance of a genuine bond or connection to the state, in cases of determining citizenship. This “effective link”, which can be manifested by birth, residence or descent, has come to manifest itself in the nationality laws of many countries, and has in this manner given non-citizens increased protection against the threat of removal from their long term place of residence. However, the ruling of the Nottebohm case has been criticised since the principle of an effective link also has given some states the opportunity not to view some individuals as nationals, due to the lacking of a social element which can constitute an effective link. Some scholars has
48 Gelazis, N.M., ”The European Union and the Stateless Problem in the Baltic States”, p. 233-234. 49 A.a., p. 234-235. 50 A.a., p. 234-235. 51 A.a., p. 234-235. 52 A.a., p. 234-235. 53 International Court of Justice, Nottebohm case, Second phase, April 1955, p. 23.
19 therefore suggested that the Nottebohm-case only should be used in the context of diplomatic protection.54
A principle that is closely related to the right to a nationality, even though it can be said to be a negative duty, is the principle of the duty to avoid statelessness. The loss of nationality, without acquire another instead, is not in compliance with the principle of reduction of statelessness. Making individuals stateless on discriminatory grounds, political grounds included, would not be acceptable. Furthermore, according to the ILC and Council of Europe (CoE), in cases of state succession it would not be acceptable to make nationals of the former state stateless since they are entitled to acquire at least one nationality of the predecessor states. Furthermore, all children should be granted with a nationality in compliance with the jus soli principle if they would otherwise become stateless.55
The principle of avoiding statelessness is codified in the 1961 Convention where Art. 8 stipulates that states can not deprive an individual of its citizenship if such deprivation would make that individual stateless. Considering that Latvia still has high number of stateless persons residing in its territory, Gelazis argues, the country has not fulfilled Art. 8 of the 1961 Convention. However, they have fulfilled Art. 24 in the CRC due to the fact that all children who are born on Latvian territory who’s parents are unknown become a Latvian citizen. The Latvian government has argued, in relation to this principle, that non-citizens residents could escape their status by gaining a Russian citizenship. According to the Russian Law on Federation Citizenship, Art. 13 (2), persons born on December 30 1922 or thereafter and who lost their citizenship of the former USSR should be granted Russian citizenship if they were born on the territory of the Russian Federation or if one of their parent were a citizen of the USSR and permanent resident of the territory of the Russian Federation at the time of the birth. The former citizens of the USSR therefore have the possibility to opt for a Russian citizenship instead of becoming stateless. Gelazis argues that since the non-citizens has
54 Blitz, B.K., “Statelessness, protection and equality”, p. 21. 55 Ziemele, I, State Continuity and Nationality: The Baltic States and Russia – Past, Present and Future as Defined by International Law, First Edition, 2005, p. 298.
20 this opportunity, and also the opportunity to be naturalised, one might say that the non- citizens population chose to be stateless.56
4.3. The Connection Between Citizenship and Human Rights
The UDHR opens with “all humans are born free and equal in dignity and rights”. According to van Waas, this is an important proclamation since it constitutes the very foundation of the human rights regime which applies to all human beings, and not only to those who governments pledge to protect.57 However, this might not be enough since the enjoyment of one’s human rights is still dependent of belonging to a state. This is also a confirmation that a nationality is still important, hence the development of different human rights treatises.58 Van Waas therefore suggests that there is a parallel development in international law and even though human rights law has made some progress there is still some gaps in the protection, especially concerning the right to political participation. 59 Political rights, such as the right to vote or to political participation, are not included in the 1954 Convention. Van Waas suggests that the exclusion from the opportunity to participate politically, and thereby also be denied empowerment, can become a breeding ground for dissent among those who stand “outside” the political realm. So, even though the human rights regime has become strengthened by international law, non-nationals can not rely on internal law to grant them with political rights. This is also why the right to a nationality is central in order to enjoy all one’s rights.60
International human rights law creates a legal framework for the protection of stateless persons. However, in spite of the developments in international law, there still remains some gaps in the protection of stateless persons. This is primarily because the rights and principles found in the international treatises and conventions are not enforceable under international law, but remains the responsibility of the states. Because of this, the protection of non-citizens is still poorly ensured in practice. According to Sokoloff, this comes down to a few factors. First, many of the international human rights treatises
56 Gelazis, N.M., “The European Union and the Stateless Problem in the Baltic States”, p. 235-236. 57 Blitz, B.K., Lynch, M, Statelessness and Citizenship – A comparative Study on the Benefits of Nationality, First Edition, 2011, p. 24. 58 A.a., p. 28. 59 A.a, p. 31-32. 60 A.a., p. 32-33.
21 refers to “all persons” while national legislation refers only to citizens. Secondly, the provisions that are regulating the rights of stateless persons are divided among a number of different treatises. Thirdly, it is the states that have the prerogatives in signing, ratifying and make reservation to the treatises, and the international treatises are not directly enforceable upon states. This is why Weissbrodt, in his Final Report on the Rights of Non-citizens, suggests that it would be desirable for the treaty bodies to jointly prepare recommendations or comments concerning the area of international human rights for stateless persons.61 This would establish a consistent and structured approach towards the protection of the rights of non-nationals. Furthermore, the treaty bodies should also intensify their dialogues with the parties to the treatises concerning the rights of the non-citizens in their respective areas of interests.62
Massive statelessness can have implications in three different levels. Groenendijk describes them as follows; on the individual level, statelessness can imply an insecure position which has consequences for the enjoyment of their rights, and which could also become a barrier to future integration. On a national level, the country of residence where a large group of stateless persons are excluded from political and societal participation, can become a source of social and political instability. Thirdly, on an international level, the presence of a large number of stateless persons in Europe is not something that is desired since it could become a potential source of international conflict or unrest.63 Groenendijk claims that one of the most important actions a state can take towards its non-nationals is to grant them with a citizenship, and thereby also entitle them with a defined set of rights. As long as granting citizenship to non-nationals is not possible due to political reasons, the second best option is to reinforce the non- nationals legal status by giving them almost equal treatment as citizens in most areas of public life. This could involve limiting the cases of expulsion to exceptional cases, providing free access to housing, access to all jobs and social security, voting rights in local elections and access to work in governmental service.64 However, Batchelor raises the question that, if stateless persons obtain almost equal or equal rights and benefits as
61 Sokoloff, C, “Denial of Citizenship: A Challenge to Human Security”, p. 29-30, Weissbrodt, D, Final Report on the Rights of Non-citizens, para. 33. 62 Sokoloff, C, “Denial of Citizenship: A Challenge to Human Security”, p. 29-30. Weissbrodt, D, Final Report on the Rights of Non-citizens, para. 33. 63 Groenendijk, K, “Nationality, Minority and Statelessness – The Case of the Baltic States”, Helsinki Monitor, 1993, p. 19. 64 A.a., p. 15, 23.
22 of the states own nationals, why can not full citizenship also be granted the group of stateless? This group will probably not be satisfied with the situation, but seek full membership in another state or try to redress the situation in the country of residence. Furthermore, the lack of full access to social, economic, civil and political rights can lead to an instability which can become an international issue due to the risk of displacement or ethnic conflict.65
However, the ENACT report concludes that when granting substantive rights to non- nationals, they become less motivated to seek an actual citizenship. This is also enhanced by the developments in human rights regimes, since it provides non-nationals with almost all their basic human rights, except for voting. In the case of Latvia, even if there has been criticism of the status of non-citizens, a majority of non-citizens themselves consider it to be a fundamental status and are generally not interested in putting in the extra effort to become a full citizen. In Latvia, since the trust in public institutions are low, especially among non-citizens and their will to engage politically and vote are not high. The Europeanization process has also contributed to the de- motivation on non-citizens to apply for naturalisation, since EU has granted them with further rights. They also have the possibility to travel visa-free in both EU and Russia while, if they became citizens, they have to apply for visa every time they wish to travel to Russia. Since many of the non-citizens still have ties to Russia this becomes a less desirable alternative.66
5. Regional Protection in Europe
Due to the fall of the Soviet Union a new Europe emerged. Thousands of people lost their citizenships, making the need for new regional legislation clear. As a consequence, CoE adopted the ECN in 1997. The ECN commits State Parties to avoid statelessness, and was mainly based upon already accepted international general principles concerning the rule of law and human rights. However, according to Cahn, the significance of the convention has been somewhat dwarfed in the light of other developments within the regional European level. This includes the expansion of the EU and the development of
65 Batchelor, C.A., “Transforming International Legal Principles Into National Law: The Right to a Nationality and the Avoidance of Statelessness”, p. 10. 66 ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, Enacting European Citizenship, 2008, p. 39.
23 the European Court of Human Rights (ECtHR) case law, which are easing the gap between nationals and non-nationals. Furthermore, the European project has granted several rights to non-citizens which traditionally only has been reserved for citizens.67 The European Convention on Human Rights (ECHR) has also been of importance. It states that the rights stipulated in the Convention should be granted to all persons on the territory of the EU, and has in many cases been more important than similar guarantees found in other international conventions and treatises. As a result, the decoupling of rights only granted to citizens has been especially strong within the EU.68
5.1. European Convention on Nationality
The ECN is structured around a set of general principles that are summarised in chapter II of the convention. States are free to determine who are citizens through national legislation, however, this should be determined within the limits of international law. Furthermore, statelessness should be avoided and national legislation concerning nationality shall not be discriminatory. The ECN extends the commitments further than the 1961 Convention, and stipulates a wider set of commitments. This may be due to a natural development within the area, suggests van Waas, since almost 40 years passed (1961-1997) between the adoption of the two Conventions. The ECN only accepts one ground for an individual to lose one’s citizenship and thereby become stateless, namely if a person has been granted its nationality through fraudulent conduct, false information or concealment of a relevant fact. In all other cases the importance of avoiding statelessness outweigh all other arguments and interests that states might have to prevent a person from a nationality. This provision can also be found in the 1961 Convention, but the ECN is more restrictive. Furthermore, the ECN has some provisions that can not be found in any other convention. The ECN has a maximum waiting period after which a state must allow lawfully permanent residents to apply for naturalisation. As a result, stateless persons within Europe have an easier and swifter access to naturalisation and are more likely to be granted citizenship in comparison to stateless persons in other parts of the world. The ECN also sets out a detailed set of procedural standards that states must respect concerning decisions that are related to
67 Cahn, C, Minorities, “Citizenship and Statelessness in Europe”, European Journal of Migration and Law, 2012, p. 300-304. 68 A.a., p. 306.
24 nationality. This provision has been extended in comparison with the 1961 Convention. In contrast to the 1961 convention, the procedural standards need to be applied to any decision concerning nationality, not only in the context of loss of citizenship. According to van Waas, this gives the stateless persons in Europe a greater possibility to challenge discriminatory domestic legislation that has left them without a nationality. The ECN also gives an obligation for states to cooperate when dealing with all relevant problems in relation to statelessness, which includes information and consultations. This may in practice allow for a better implementation of the standards set out in the ECN. However, as van Waas underscores, the ECN, just like the 1961 Convention, lacks any enforcement mechanism and does not appoint the ECtHR to have a supervisory role. This is a deficiency in the Convention in terms of actual enforcement. In spite of this, there has been a development in recent case law of the ECtHR concerning the issue of nationality.69
5.2. Case Law of the European Court of Human Rights
Europe is, for the moment, the only region that that has adopted its own dedicated convention on nationality. It places limits on national legislation on nationality within the EU. According to van Waas, the ECN is the most significant instrument in international law of its kind. Even though neither the ECN nor the ECHR entails any provisions on the right to a nationality, the issue of access to a nationality has been the subject for numerous cases. This also indicates that, as described above, citizenship is no longer only a domestic matter.70 ECHR does not contain an article equivalent to article 15 in the Universal Declaration on Human Rights, which grants all individuals the right to a nationality. This has not, however, stopped complaints regarding matters of the right to a nationality to be brought in front of ECtHR.
Since the 1970s, several cases concerning matters of nationality have been placed in the framework of ECHR. In 1972, the Commission found in the case of X v. Austria that it was the prerogative of states to regulate matters related to nationality.71 Thirteen years later in the case K. and W. v. the Netherlands, the Commission reiterated its view and
69 Waas van, L, “Fighting Statelessness and Discriminatory Nationality Laws in Europe”, European Journal of Migration and Law, 2012, p. 245-249. 70 Waas van, L, “Fighting Statelessness and Discriminatory Nationality Laws in Europe”, p. 245. 71 European Commission on Human Rights, 5 October 1972, X. v. Austria, Application No. 5212/71.
25 stated that nationality was not a matter which fell into the scope of the ECHR.72 In spite of these early cases, the case law of the Court began to shift in the 1990s when the Commission in the Kafkasli v. Turkey case stated that complaints related to domestic regulations of nationality, or at least effects from such decisions, could fall within the scope of the ECHR.73 This view was later confirmed in the cases of Slepcik v. the Netherlands and the Czech Republic and Zeibek v. Greece.74 These cases showed that it may be possible to raise complaints concerning nationality under some of the provisions of the ECHR, especially the articles concerning private and family life (Art. 8), inhumane and degrading treatment (Art. 3) and non-discrimination (Art. 14). 75 However, it was not until the case of Genovese v. Malta that the Courts ruling became a true landmark for issues concerning nationality within Europe.76 In Genovese v. Malta, the applicant complained that the Maltese domestic legislation on nationality were discriminatory against the applicant due to the fact that he was born out of wedlock and thereby was not entitled to acquire citizenship by descent from his Maltese father. The Court argued that denial of citizenship might raise an issue under article 8, “because of its impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity”.77 The courts ruling in Genovese v. Malta may have far reaching consequences for future application of national laws that are discriminatory, and where principles to avoid statelessness are not implemented. Due to the ruling in this case, states within the jurisdiction of ECtHR can no longer escape examination by the Court.78
5.3. EU Citizenship and Third Country Nationals
Art. 20 of the Treaty on the Functioning of the European Union (TFEU) states that: “Citizenship of the Union is hereby established, Every person holding the nationality of
72 European Commission on Human Rights, 1 July 1985, Family K. and W. v. Netherlands, Application No. 11278/84, p. 220. 73 European Commission on Human Rights, 22 May 1995, Kafkasli c. la Turquie, Application No. 21106/92. 74 European Commission on Human Rights, 2 September 1996, Slepcik v. the Netherlands and the Czech Republic, Application No. 30913/96, European Commission on Human Rights, 21 May 1996, Zeibek v. Greece, Application No. 34372/97. 75 Waas van, L, “Fighting Statelessness and Discriminatory Nationality Laws in Europe”, p. 250-252. 76 European Court of Human Rights, 11 October 2011, Genovese v. Malta, Application No. 53124/09, para. 33. 77 European Court of Human Rights, 11 October 2011, Genovese v. Malta, Application No. 53124/09, para. 33, Waas van, L, “Fighting Statelessness and Discriminatory Nationality Laws in Europe”, p. 253. 78 Waas van, L, “Fighting Statelessness and Discriminatory Nationality Laws in Europe”, p. 254.
26 a Member State shall be a citizen of the Union. Citizenship to the Union shall be additional to and not replace national citizenship.” Thus, the possession of a EU Citizenship depends on the possession of a national citizenship, which means that the non-citizens of Latvia are not EU-citizens.
A EU citizen has the right to move and reside freely within the Member States (Art. 21), to vote and stand in local and European elections (Art. 22), receive consular protection of any Member State (Art. 23) and petition the European Parliament or Ombudsman and take part in citizens initiatives (Art. 24). Furthermore, the ECHR also entails several fundamental rights which all can be enjoyed by an EU citizen. The EU citizenship is somewhat unknown to the international community and it is closely linked to the national citizenship. The concept has therefore been criticised on the grounds that it might be perceived as a symbolic status without any real substance, and that the citizenship is simply a term that describes rights as set out in the Treaty. However, it has also been suggested that the EU Citizenship might strengthen democracy within the EU.79 Kruma suggest that the concept of EU citizen, although it has evolved from being declaratory, has become a fundamental concept. The concept is, however, not easily defined and is still under constant development. EU citizens have access to international judicial scrutiny of national laws, where there before did not exist any international redress. However, the EU has limited competence regarding accession and loss of national citizenship since there are no right to a nationality in EU treatises.80
Non-citizens are subject to EU immigration directives since they are not EU citizens. Of these directives, the most important is the Long Term Resident (LTR) Status Directive (2003/109/EC).81 Non-citizens are, in accordance with the Directive, considered to be Third Country Nationals (TCN), and are qualified to apply for the status of LTR. In order to obtain this status, non- citizens have to show that they have sufficient resources and health insurance. In the case of Latvia, and according to section 3 of the Latvian Law on Long Term Residents, a sufficient command of the Latvian language constitutes
79 Kruma, K, EU Citizenship, Nationality and Migrant Status – An Ongoing Challenge, First Edition, 2014, p.119-121. 80 A.a., p. 122-125. 81 A.a., p. 364-365.
27 an additional requirement.82 Thus, Latvia does not automatically grant the non-citizens with the status of LTR.
The Directive entails provisions for TCN:s, and consequently also for the non-citizens, but only if they attain the status of LTR, thus putting them closer to the status of EU citizens. The status of LTR is however not awarded automatically to TCN:s under the Directive.83 The purpose of the Directive is to ensure equal treatment among LTR, regardless of in which Member State the person resides. The Directive provides the right of equal treatment in a wide range of economic and social matters, including access to employment, education, welfare benefits and social assistance. However, Art. 11 provides that the Member States can make restrictions in certain areas, such as access to employment, where certain activities are reserved for nationals or EU citizens.84 Furthermore, according to Art. 14, LTR have the right to stay in another Member State for a period exceeding three months if the person is pursuing employment, studies or have the adequate resources to reside the Member State. Family members of the long-term resident have a right to accompany that person to another EU country if they had formed a family in the first EU country. Finally, the Directive contains a safeguard against expulsion in Art. 12, according to which the Member State only can expel a LTR if that person constitutes an actual threat to public order or domestic security. The Directive does not contain provisions concerning voting rights and access to a nationality, since there is no legal base for these issues. However, the Commission has expressed that it is important for the integration process to grant political rights to LTR. The European Economic and Social Committee has also recommended that EU citizenship should be granted automatically to LTR. Van Elsuwege suggests that, if such an amendment would be reality, that would ease some of the democratic deficit in Latvia. The non-citizens are, due to their status, excluded from participation in EU and municipal elections. However, if they became EU citizens, these rights would be granted to them automatically.85
82 Kruma, K, “Country Report: Latvia”, EUDO Citizenship Observatory, 2013, p. 21. 83 Elsuwege van, P, Russian-speaking minorities in Estonia and Latvia: Problems of Integration at the threshold of the European Union, European Centre for Minority Issues, 2004, p. 36-37. 84 A.a., p. 37. 85 A.a., p. 38-42.
28 4.4. Changes in Latvian policy due to EU accession
In the process of EU enlargement, the EU had a leverage point concerning Latvia as a new member state. Latvia was in need of both economic and political support in order to rebuild the country. Furthermore, the country also had a desire to “return to Europe” and leave the Russian sphere of influence. In the process of enlargement, the Commission criticised Latvia for their restrictive rights to citizenship, and for the discrimination of Latvias non-citizens. However, the EU did not demand that Latvia should automatically grant all non-citizens with citizenship. Rather, the EU encouraged Latvia to make the naturalisation process simpler. This particularly concerned the language test, since this was considered to be the biggest obstacle in the process of becoming a citizen. Due to the demands of the EU, Latvia made some significant changes and, for example, abandoned the “window-system”86. Latvia also made amendments such that all new born children to stateless parents would be able to become citizens without naturalisation, and also instituted a simplified naturalisation process for people over 65 years and lowered the fees for the naturalisation process. In addition, some of the restrictions preventing non-citizens to work with certain jobs were lifted. However, Latvia has not been able to substantially increase the number of naturalisation applications. As mentioned above, this is likely related to the language test, which is considered the most significant barrier. Due to this, EU has allocated funds to language programs and integration projects in order for non-citizens to be able to study the language without cost. However, the language courses are overburdened and the waiting list is long.87
6. The Case of Latvia
6.1. The Concept of Non-Citizens – Stateless or Not?
Despite the fact that Latvia chose to declare the Soviet occupation illegal, a vast majority of the Soviet settlers chose to stay in Latvia. Due to this, around 750,000 people in Latvia were placed in legal limbo and did not fit into any legal definition since
86 The “window-system” provided for a gradual naturalisation of the Latvian non-citizens. The system was divided into different age-groups, who could apply in different years ranging from 1996 to 2003. 87 Gelazis, N.M., “The European Union and the Stateless Problem in the Baltic States”, p. 238-240.
29 they were nationals of a state that did no longer exist. It was impossible to grant all the settlers automatic citizenship due to domestic politics, but at the same time they could not be extradited since this would breach international human rights law. The Latvian state could also not admit them to continue to be classified as stateless, since that would be contrary to the principle of reduction of statelessness. Due to the fact that 28 per cent of the total population were left with an undetermined status, several international organisations, most notably the EU, NATO, OSCE and the CoE, exercised criticism due to Latvias treatment of the Soviet settlers. As a consequence, Latvia chose to liberalize their citizenship policy in accordance with international standards.88 In an attempt to act in compliance with international law, and the principle of avoiding statelessness, Latvia introduced a special category of non-citizens. However, this category was believed to be temporary due to the fact that many of the USSR settlers were presumed as citizens of another state, meaning that they in time would either gain citizenship of another state or become neutralised.89 In 1995, the Latvian parliament adopted a law concerning the status of former USSR citizens (Law on the status of Former USSR Citizens Who are Not Citizens of Latvia or Any Other State), which states that all those former USSR citizens who possess a so called propyska90 in their (Soviet) passport as of July 1992 would be considered a permanent resident of Latvia.91 In order to be categorised as a non-citizen according to Art. 1 of the USSR Citizens Law, one should have been a citizens of the former USSR who resided on the territory of Latvia and who on July 1 1992, was registered as being a resident within the territory of Latvia, and should not hold a citizenship of Latvia or a citizenship of another state. Furthermore, Art. 1 recognises non-citizens as a special category and provides this group with more rights than for other “proper” permanent residents.92 This category provides the non-citizens with rights and guarantees, even though they are not Latvian nationals. While the non- citizens do not have a nationality, Latvia has consistently defended its position that non- citizens cannot be considered as stateless. This has also been accepted by some
88 Kruma, K, “Country report: Latvia”, p. 1, 5, ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, p. 11-12. 89 Kruma, K, “Country report: Latvia”, p. 7-8. 90 A combination of a visa and a residence permit. 91 Lottman, A, “No Direction Home: Nationalism and Statelessness in the Baltics”, Texas International Law Journal, 2008, p. 508, Molnár, T, “Remembering the Forgotten: International Legal Regime Protecting the Stateless Persons – Stocktaking and New Tendencies”, p. 843. 92 Kruma, K, “Country report: Latvia”, p. 7-8.
30 international human rights monitoring bodies.93 Latvia has, however, recognised around 1000 individuals as stateless persons, which mainly consist of soldiers from the Red Army and individuals who worked for the KGB94. After the fall of the Soviet Union, the Soviet army and intelligence service transformed from domestic to foreign agencies. Even though many of these individuals meet the requirements to undergo the naturalisation process, they are excluded as a group and are not assessed on a case-to- case basis.95 It should also be noted that former citizens of the USSR did have the opportunity to become Russian citizens, however, the USSR settlers were not given Russian citizenship automatically although they could under a three-year period (1992- 1995) register for citizenship of the Russian Federation. Under its first year, 17 000 persons registered at the Russian embassy in Riga. However, a majority of the former USSR settlers choose to stay in their country of residence and rather tried to acquire the citizenship of that particular state.96 This was also the case in Latvia.
The concept of non-citizens has been a subject for the Latvian Constitutional Court several times. For example, in the Zaharov case, the Court stated that a Latvian non- citizen is not a stateless person, and that a non-citizen enjoys all the human rights and duties as defined in the Satversme (the Latvian constitution). The Court also stated that Latvia has recognised jurisdiction of this group since the non-citizens has a closer link to Latvia than does stateless persons and foreign nationals.97 Furthermore, the Court in the Saakyan case stated that the status of non-citizen cannot be withdrawn if it is not certain that the person has acquired a citizenship of another state.98 However, not until 2005 did the Latvian Constitutional Court for the first time give an authoritative interpretation of the status of non-citizens.99 This was due to the implementation of directive 2003/109/EC, in which EU had agreed that in order for non-citizens to travel
93 ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, p. 11-12, Concluding observations of the Committee of the Elimination of Racial Discrimination: Latvia, 12 April 2001, Concluding Observations of the Human Rights Committee: Latvia, 3 October 1995, paras. 334- 361. 94 KGB (Komitet Gosudarstvennoy Bezopasnosti) was the main security agency in the Soviet Union between 1954 and 1991. 95 Blitz, B.K., “Statelessness, protection and equality”, p. 13, Lottman, A, “No Direction Home: Nationalism and Statelessness in the Baltics, p. 512-513, Statelessness, protection and equality”. 96 Groenendijk, K, “Nationality, Minorities and Statelessness – The Case of the Baltic States”, p. 18-19. 97 ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, p. 35-36. 98 ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, p. 35-36, (Latvian Constitutional Court (In Latvian): Case No. A42173104 SKA 136, 13 April 2005, Case No. SKA-89, C27261801 24 August 2004.) 99 Kruma, K, “Country report: Latvia”, p. 8-9
31 or work in other EU Member States, non-citizens should apply for LTR status as stated in the Directive. The Court was to rule on the question whether a person could loose its status as non-citizen if acquiring LTR status in another Member state, the Court ruled this amendment as unconstitutional. The Court analysed the concept of non-citizen in a political and historical context and they found that granting automatic citizenship to the USSR settlers was unfounded, and that the concept of non-citizens was a political compromise that resulted in the creation of a new category. This new category was, according to the court, previously unknown to international law. The Court also noted that Latvia had defended its position by not recognising the non-citizens as stateless, and that this also had been accepted by some international bodies.100 The Court further defined the status of non-citizens as follows:
“The status of a non-citizen is not and cannot be regarded as a variety of Latvian citizenship. However, the rights and international liabilities, determined for the non-citizens testify that the legal ties of non- citizens with Latvia are to a certain extent recognized and mutual obligations and rights have been created on the basis of the above. It follows from Article 98 of the Satversme, which inter alia establishes that everyone having a Latvian passport shall be protected by the State and has the right to freely return to Latvia.”101
According to Kruma, through its ruling, the Court confirmed that there is a special link between the non-citizens and the state of Latvia. However, they do not possess the same status as citizens. Since the introduction of the status, the rights of non-citizens has been strengthened, their status is no longer considered to be temporary, and the group now posses many of the rights of citizens, except for political rights and the right to work in certain branches of the civil services.102
Furthermore, the Latvian Ombudsman claims that the legal status of non-citizen is not a form of citizenship. Rather, according to the Ombudsman, they have acquired a special legal status and are defined as a group of persons who have lost their citizenship of the USSR, and who have not become naturalised by any state. However, they are neither
100 Kruma, K, “Country report: Latvia”, p. 8-9, Latvian Constitutional Court, Case No. 2004-15-0106, 7 March 2005, para. 13 and 17, ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, p. 13-14.
101 Latvian Constitutional Court, Case No. 2004-15-0106, 7 March 2005, para. 17. 102 Kruma, K, “Country report: Latvia”, p. 9.
32 considered as general aliens, foreign nationals or as stateless persons.103 However, the Ombudsman did argue in a previous report that the non-citizens “special legal status” might be questionable from an international law point of view.104
The Ombudsman also argues that the different rights granted to citizens and non- citizens can not be seen as discriminatory since, according to Art. 25 ICCPR, a state can use different treatment in some areas between nationals and non-nationals, however, not between different groups of non-nationals.105 There has been a discussion within the international community whether non-citizens should be able to vote in municipal elections. In some areas in Latvia, the non-citizens constitute almost a fourth of the population and, without the opportunity to participate in local politics, their everyday life may be adversely affected, including economic and social activities. Several international organisations have pointed out this problem from a human rights perspective. For example, the CERD stated in its final report that: “The Committee recognizes that political rights can be legitimately limited to citizens. Nevertheless, noting that most non-citizens have been residing in Latvia for many years, if not for their whole lives, the Committee strongly recommends that the State party consider facilitating the integration process by making it possible for all non-citizens who are long-time permanent residents to participate in local elections.”106 The Ombudsman continues by stating that a nationality can not be imposed upon an individual by the Latvian state, and that due to low naturalisation numbers it can be concluded that the non-citizens are satisfied with the level of rights that is already been granted to them. Thus it can be said that they have chosen to be privileged stateless persons, rather than citizens. 107 However, this claim may be an over-simplification since the low naturalisation numbers could also be due to other barriers, such as relatively strict language requirements and lack of information.
103 Ombudsman of the Republic of Latvia, “Re: Legal Status of Non-citizens”, p. 1-2. 104 Ombudsman of the Republic of Latvia (in Latvian), 2008.gada .septembrī Nr. Frakcijas „Par cilvēka tiesībām vienotā Latvijā” priekšsēdētājam Jakovam Plineram, p. 16. 105 Ombudsman of the Republic of Latvia, “Re: Legal Status of Non-citizens”, p. 1-2. 106 Ombudsman of the Republic of Latvia (in Latvian), 2008.gada .septembrī Nr. Frakcijas „Par cilvēka tiesībām vienotā Latvijā” priekšsēdētājam Jakovam Plineram, p. 15, UN Committee on the Elimination of Racial Discrimination, “Consideration of Reports Submitted by States Parties under Article 9 of the Convention”, December 2003, p. 12. 107 Ombudsman of the Republic of Latvia, “Re: Legal Status of Non-citizens”, p. 1-2.
33 Even though the Latvian state, and some international monitoring bodies108, has not recognised the Latvian non-citizens as stateless, not all international organisations and international NGOs agree with that statement. For example, the OSCE Parliamentary Assembly109, the CoE Commissioner for Human Rights110, the UN Special Rapporteur on Contemporary forms of racism, racial discrimination, xenophobia and related intolerance 111 and Amnesty International 112 consider the non-citizens of Latvia as stateless. Due to this, one might say that the status of Latvia’s non-citizens is somewhat disputed.
6.2. Access to Naturalisation
There is no international framework that provides naturalisation for stateless persons and the only article that mentions the procedure of naturalisation is Art. 32 of the 1954 Convention. The article does not state any individual right, but rather an opportunity, to go through naturalisation, a process that is under every state party’s discretion. Furthermore, the article is rather vague because it is not enlisting any details concerning the process.113
The Latvian state offers the opportunity of naturalisation to non-citizens. The present citizenship law of Latvia was adopted in 1994, and defined all persons living on Latvian territory during the interwar period as Latvian citizens. The law also introduced the possibility for USSR settlers to naturalise in order to become citizens. However, this had to be done according to the so called “window system”, which provided for a gradual naturalisation of the Latvian non-citizens. The system was divided into different age-groups, who could apply in different years ranging from 1996 to 2003. For example, a person of 45 years of age could apply for citizenship in 2000, but a person who was 20 could apply already in 1996. The reason for introducing the window system
108 “Synthesis Report: Conclusions and Recommendations on the Situation of Fundamental Rights in the European Union and its Member States in 2003”, E.U. Network of Independent Experts on Fundamental Rights, February 2004, p. 90. 109 OSCE Parliamentary Assembly, “Edinburgh Declaration”, July 2004, para. 16. 110 Hammarberg, T, “No one Should Have to be Stateless in Today’s Europe”, Council of Europe: Commissioner for Human Rights, June 2008. 111 Doudou, Diène, “Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Mission to Latvia”, March 2008, para. 30. 112 Amnesty International, “Amnesty International Report 2014/15”, Annual Report. 113 Molnár, T, “Remembering the Forgotten: International Legal Regime Protecting the Stateless Persons – Stocktaking and New Tendencies”, p. 839-840.
34 was the fear that large groups of Soviet settlers (especially Russians) would apply for citizenship at the same time. However, the number of applications turned out to be much lower than expected. One explanation for this is the strict requirement of langue test, since the knowledge of Latvian was lacking among these groups.114 In 1998, after international criticism, the citizenship law was amended and the window system was abolished, and as a consequence the naturalisations numbers almost tripled. The numbers also rose in the process of EU accession 2004, but after 2006 the numbers are declining. After August 21 1991, Latvia also started providing citizenship for children born in Latvia to non-citizens and stateless (upon registration at birth). Due to the amendment, the naturalisation process also became simplified and several groups were exempted from the naturalisation process or certain tests. In spite of these changes the registration of new-born children there are still born round 800 children every year that acquire the status of non-citizen, mainly due to lack of information regarding the registration. Because of this, there have been suggestions to abolish the registration process for children and grant them with automatic citizenship at birth.115
Since the introduction of the Latvian citizenship law, there has been some criticism from several international actors. In the beginning of the 1990’s, the OSCE sent a mission to Latvia to determine the political and social needs of the non-citizens. This mission was closed in 2001, and the view was that the remaining problems could be solved through consultations and monitoring. The Latvian government has consistently continued to claim that their requirement of naturalisation tests regulated in the Latvian citizenship law, mostly the language test, are not discriminative on the basis of ethnicity, but aiming at preserving the Latvian culture and correcting the forced cultural transformations which occurred during the occupation. The international community has confirmed that it is in the discretion of each country to demand language test in the naturalisation process, however, the Latvian language test has ben criticised for being too strict and demanding a too high level of language proficiency and this might be discriminatory.116 It is difficult to determine at what level of difficulty the practice of language testing starts to approach something that appears to be a form of
114 ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, p. 7. 115 Ombudsman of the Republic of Latvia (in Latvian), 2008.gada .septembrī Nr. Frakcijas „Par cilvēka tiesībām vienotā Latvijā” priekšsēdētājam Jakovam Plineram, p. 2. ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, p. 8-9. 116 Lottman, A, “No Direction Home: Nationalism and Statelessness in the Baltics”, p. 514-515.
35 discrimination. In the Latvian case, however, the rate of failure of first-time takers of the language tests has been around 40 per cent during the years 2009-2011.117 These numbers could be an indication that the language requirement is rather strict.
According to figures from October 2012, a total of 139,300 non-citizens, including 14,135 children, have been naturalised since the naturalisation process was initiated in 1995.118 The number of applications peaked in 2004 when Latvia was in the process of becoming a member of the EU. Since then, the number decreased, and the annual rate of naturalisations per year is around 2000 persons, or 1 per cent of the entire non-citizen population. According to the Latvian Naturalisation Board, the number of non-citizens decreases with 15,000 per year. However, only 20-29 per cent of those becomes Latvian citizens. The majority of the other 71-80 per cent either deceases or becomes citizen of another state, mainly Russia. There is no particular research on why non-citizens choose Russian citizenship, but one reason is believed to be earlier retirement age and thereby economic benefits. It is normal for those individuals who become citizens of another state to stay in Latvia with a permanent residence permit. In general, non-citizens from Eastern Latvia (who also have the highest proportions of ethnic Russians) are less likely to apply for citizenship. There are several reasons why non-citizens do not want to apply for citizenship, but the most common reasons are; they believe that citizenship should be granted to them automatically, they would not be able to pass the exams required in the naturalisation process (especially the language exam), they are waiting for the government to further liberalize the naturalisation process, and they consider that as long as they are non-citizens it is easier to travel within the CIS countries. Around 24.5 per cent of Latvias non-citizens state that they are willing to go through the naturalisation process. According to Kruma this might be a sign of the stable status of non-citizens as well protected by the state and they therefore become less motivated to apply for citizenship.119
117 Latvian Centre for Human Rights, “Second Alternative Report on the Implementation of the Council of Europe Framework Convention for the Protection of National Minorities in Latvia”, 2013, p. 43. 118 Kruma, K, “Naturalisation Procedures for Immigrants: Latvia”, EUDO Citizenship Observatory, 2013, p. 3. 119 Kruma, K, “Naturalisation Procedures for Immigrants: Latvia”, p. 3-5, Kruma, K, “Country report: Latvia”, p. 4, Non-citizens congress, “Thematic Submission Concerning Status of Non-citizens, including Naturalisation Process”, February 2014, p. 4, Latvian Centre for Human Rights, “Second Alternative Report on the Implementation of the Council of Europe Framework Convention for the Protection of National Minorities in Latvia”, p. 43.
36 6.3. The Naturalisation Process
The naturalisation procedure is regulated in chapter 2 of the Latvian Citizenship Law. In order to apply, the applicants need to confirm that they have been permanent residents for at least five years, show a valid ID, show proof of legal income, pay a fee and sign a pledge to Latvia. 120 After meeting these criteria, non-citizens can be naturalised according to the Latvian Citizenship Law. The naturalisation procedure includes a Latvian language exam, exams in the knowledge of Latvia’s history, constitution (Satversme) and the Latvian national anthem, the applicant is also required to pledge an allegiance to the Latvian state.121 Since the Citizenship Law was amended in 2013 it is also allowed to have dual citizenship under certain circumstances. Through this amendment, it is also allowed to serve in another armed forces or military organisation122 According to section 21, certain groups can be exempted from some parts of the process. Persons who have acquired basic, secondary or higher education in Latvian should be exempted from the language tests, and persons over 65 are not required to take the written part of the language test and pass the listening and reading part orally. Persons with very severe or severe disability such as mental disability, binaural deafness and deaf-mutism are exempted from both the oral and written parts of the tests. Persons who have lost their right or left arm, as well as applicants with visual disabilities can be exempted from the written parts of the tests. Persons with speech defects do not need to take the oral part, and the listening parts should not be applicable for persons who are hearing impaired.123
To be able to go through the naturalisation process and take the tests, the applicant is required to pay a fee to the state. The regular fee is 29 euros, but certain groups (retired, disabled, students, poor, unemployed and families with three or more minor children) have the right to a lowered fee (4-14 euros), and some groups (people who suffered particularly under Soviet political repression, very severely disabled, orphans and people in social care institution) are exempted from paying the fee. Additional costs can
120 Kruma, K, “Naturalisation Procedures for Immigrants: Latvia”, p. 8-9, Kruma, K, “Country report: Latvia”, p. 10. 121 Kruma, K, “Naturalisation Procedures for Immigrants: Latvia”, p. 8-10. 122 Dual citizenship is permitted to Member States of EU, EFTA and NATO and countries that Latvia has entered agreements regarding dual citizenship. The same applies to service in another military service. (Section 12, para. 2 and 3 Latvian Citizenship Law). 123 Kruma, K, “Naturalisation Procedures for Immigrants: Latvia”, p. 9-13.
37 be attached to the process in cases where the applicant needs to purchase study materials, attend courses or travel to cities where the tests are held.124
The process can be terminated if the applicant is facing criminal charges (in awaiting a court ruling), or if the applicant has submitted false information. Persons who have breached the rules upon examination can be ordered to re-take the tests. Persons who have been in co-operation with the KGB (or a similar organisation by another state), former USSR militaries (and was called in from another part of the Soviet union than Latvia), convicted persons (including crimes committed in another country, which also is considered a crime in Latvia), persons who has served in the intelligence or military branches of another state and persons without any record of permanent residence for at least five years are not allowed to go through the naturalisation process, and can thereby not become a Latvian citizen. There are also restrictions on applicants who have, upon a decision by a court, acted against the independence of Latvia, propagated totalitarian ideas or ethnic or racial hatred, or after January 1991 worked against Latvia in specified organisations (mainly organisations which has ties to the Soviet union or different communist parties).125
The general rule in the Latvian citizenship law states that all children born to parents holding a Latvian citizenship automatically becomes Latvian citizens. This is also the case if one of the parents is a citizen and the other is unknown or a non-citizen. According to paragraph 1 section 3 of the Citizenship Law all children to non-citizens (who has resided in Latvia for at least five years) born after 21 August 1991 shall be recognised as Latvian citizens from birth upon the parents registration. If the child is not registered at birth, the child can still become a citizen through a registration process submitted by at least one parent. Between the ages of 15 and 18 the child has to go through the same registration process, but it also need to submit a document certifying the individuals knowledge in the Latvian language.126
According to the Law on Administrative procedure, an applicant can appeal a decision of the Naturalisation Board if the applicant considers that the decision has not been
124 A.a., p. 13-15. 125 Kruma, K, “Naturalisation Procedures for Immigrants: Latvia”, p. 11, 15-16, Kruma, K, “Country report: Latvia”, p. 13. 126 Kruma, K, “Naturalisation Procedures for Immigrants: Latvia”, p. 20.
38 adopted lawfully. The state has a right to conduct a fee for the appeal (7-14 euros), however certain groups of applicants (see above) can be exempted from this fee.127
The CERD recommends states to take effective measures to guarantee that all non- citizens, without any discrimination, shall be able to acquire citizenship through a naturalisation process.128 This applies regardless of the non-citizens ethnic background or nationality.129 Concerning language test in order to acquire citizenship, the Council of Europe has stated that language requirements are not considered discriminatory if the language test aims at the ability for the non-citizen to integrate into the society.130 The reason stated by Latvia for adding a demand on passing a language test in order to become a citizen was to facilitate better integration between the Latvian-speaking and Russian-speaking communities. After the fall of the Soviet Union, the ethnic Latvians was mostly bi-lingual (Latvian and Russian) but the USSR settlers knew only Russian. The Latvian state argued that in order to avoid having two parallel states, and to integrate the Russian-speaking population to Latvia, it was necessary that they learned Latvian. 131 Groenendijk argues that the Latvian Citizenship Law may not be in compliance with Art. 1(3) and 5(d)(iii) of the ICERD. According to Art. 1(3), State Parties are free to make legal provisions concerning nationality, citizenship or naturalisation, provided that such provisions do not discriminate against any particular nationality. Furthermore, Art. 5(d)(iii) states that the right to nationality can not be subject to discrimination based on race, colour, or national or ethnic origin. While the Latvian Citizenship Law does not explicitly exclude non-Baltic residents, it may according to Groenendijk constitute a form of indirect discrimination due to its de-facto exclusion of residents of Russian and other non-Baltic origin. This is an indirect form of discrimination, which manifest itself in the effect rather than in the stated purpose of the legislation, which is a distinction included in the ICERD concept of discrimination. Furthermore, Groenendijk also questions the language test requirement for acquiring citizenship. Language tests are not uncommon in acquiring citizenship, but these tests also have a history of being excluding to certain groups of immigrants. The states might
127 A.a., p. 17-18. 128 “Report of the Committee on the Elimination of Racial Discrimination”, General Assembly, Fifty- seventh Session, Supplement No. 18 (A/57/18), August 2002, para. 464, Weissbrodt, D, The Human Rights of Non-citizens, p. 61-64. 129 Weissbrodt, D, The Human Rights of Non-citizens, p. 61-64. 130 A.a., p. 61-64. 131 Kruma, K, “Country Report Latvia, The INTEC project: Integration and Naturalisation test: the new way to European Citizenship”, Centre for Migration Law, 2010, p. 27.
39 not even be aware of these excluding elements, but Groenendijk points to research carried out in the Netherlands which shows that a spoken language test in Dutch is a barrier to predominantly applicants from Chinese origin. So, even if the discriminatory effect is unintentional it can, according to Groenendijk still be a violation of the ICERD.132
6.4. Stateless, Non-citizens or de facto citizens?
When Latvia became independent, the ethnic Russian population were perceived as a threat to the national identity and integrity of the newly independent state, making and the question of citizenship and nationality highly politicised. When this occurs, it is common that groups which do not fit in to the ethnic majority of a state becomes stateless.133 It could be argued that this was the case in Latvia. However, the politicised nationality based on ethnicity does not have bearing under international law, and it is stated in the ECN that nationality is the legal bond between an individual and the state and it does not indicate a persons ethnic origin. According to Sokoloff, the term nationality is therefore equivalent to the term citizenship.134 If this interpretation is accepted, it would clearly define the Latvian non-citizens as stateless in accordance with the 1954 convention, since they lack citizenship and therefore must lack nationality.
According to the 1954 Convention, only a person who is without nationality is considered to be a de jure statelessness. A person who is de facto stateless is an individual with a nationality, but not an effective one, i.e. does not posses the protection of its state. De facto stateless persons are not covered by the 1954 Convention. Tucker suggest that due to the concept of de facto statelessness, it might be time to broaden the definition of statelessness. By not being covered by the convention, all persons who should be considered as stateless are not recognised as such. Since there is an on-going debate concerning de facto citizenship, Tucker suggests that if a person’s citizenship can become so ineffective that a de jure citizen can be regarded as a de facto stateless person, then this logic could also be used the other way round. In other words, if a de jure stateless person acquires almost or the same rights as a de jure citizen an individual
132 Groenendijk, K, “Nationality, Minority and Statelessness – The Case of the Baltic States”, p. 20-21. 133 Sokoloff, C, “Denial of Citizenship: A Challenge to Human Security”, p. 7, 14. 134 A.a., p. 7, 14.
40 could be considered a de facto citizen, since they almost have an effective citizenship. This would also lead to a situation where some stateless persons should be moved out of the category of stateless due to their de facto citizen status.135
Even though the non-citizens of Latvia are considered, by several international actors, as being de jure stateless they enjoy a number of “citizen rights” which almost makes them in par with the de jure citizens in Latvia. For instance, they enjoy social rights, legal and consular protection and are entitled to an alien passport which enables them to freely move in and out of the territory of Latvia.136 However, Tucker suggest, being a de facto citizen does not grant one with adequate protection, since these rights can be removed at basically any time if there they are considered to be a threat to national security or public order, or have committed a serious crime. If they were to be removed from the territory based on these grounds, the de facto citizens can not challenge the decision based on their de facto citizenship. This makes a de facto citizen much less protected than a de facto stateless. The de facto stateless still have that bond to a state which comes with the citizenship, even though it is weak or ineffective, as a base to their protection. A de facto citizenship may allow the enjoyment of citizenship rights similar to that of de jure citizens, but only on a temporary basis, which puts the de facto citizens in a more vulnerable situation. Tucker also claims that focusing on whether a stateless persons is a de facto citizen can become negative for the term stateless, since the concept of a de facto citizens has no legal ground and it may be an argument not to deal with the real problem and truly reduce the number of stateless persons. Granting a de jure stateless person with a de facto citizenship does not prevent future cases of statelessness, and therefore the problem will continue to live on from one generation to the next. If the definition is broadened, one also has to reject one fundamental factor concerning a stateless person, namely that they are not a citizen of any state and in the long run this could, according to Tucker, weaken the concept of statelessness. The fundamental term for interpreting the 1954 Convention should therefore be whether a person has a legal bond to a state or not, and since that legal bond is crucial when claiming one’s rights this should not be underestimated or marginalised. With a nationality, a citizen can challenge its ineffective citizenship, while de facto citizens
135 Tucker, J, “Questioning de facto Statelessness – By looking at the facto citizenship”, Tilburg Law Review, 2014, p. 276-278. 136 A.a., p. 280.
41 who lack nationality do not have this opportunity. According to Tucker, the definition of a stateless person needs to be preserved in order for the legal regime that surrounds them to actually work and help those who need it, namely the de jure stateless persons.137 Thus, the redefinition of citizenship as something that can exist either as de jure or de facto would undermine the meaning of the term, and is incompatible with the current state of international law surrounding statelessness.
Even though the 1954 Convention establishes the legal definition of a stateless person, neither the 1954 Convention nor any other international instruments does entail any mechanisms to identify stateless persons as such, which gives the states a broad discretion in determining who is stateless and who is not.138 According to the Expert Meeting of UNHCR on the Concept of Stateless Persons, the issue under Art. 1 is not whether a person has an effective nationality, but a nationality at all.139 The question, therefore, is whether the non-citizens have a nationality or not. The UNHCR’s Expert Meeting concludes that nationality should be given the meaning of a legal link between an individual and a certain State and that a person should be considered a national if the given State has that person under its jurisdiction as well as diplomatic protection. Furthermore, Art. 1 does not require an effective and genuine link between the individual and the State. The important criterion is rather whether the State does consider the individual as a national or not.140 Art. 2 (ii) of the 1954 Convention further stipulates that the Convention should not apply “to persons who are recognised by the competent authorities of the country in which they have taken residence as having the rights and obligations which are attached to the possession of the nationality of that country”. One might argue that the Latvian non-citizens in this sense are to be considered Latvian nationals since they fall under the jurisdiction and protection of the Latvian State as citizens. Furthermore, they are also granted with a passport, distributed by the Latvian State. The Constitutional Court concluded that there are legal ties between the non-citizens and the state, and that while they are not viewed as citizens, they can in this sense be regarded as nationals, and therefore not stateless. The
137 A.a., p. 281-284. 138 Blitz, B.K., Lynch, M, Statelessness and Citizenship – A comparative Study on the Benefits of Nationality, p. 37, UNHCR, “Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person”, p. 2-3. 139 UNHCR, “Expert meeting The Concept of Stateless Persons under International Law Summary Conclusions”, 2010, para. 3. 140 A.a., para. 8-10.
42 UNHCR’s Expert Meeting also concluded that a State may have two or more categories of nationals141, whereby one could argue that non-citizens are nationals of Latvia even though they are not considered as nationals with a citizenship. However, Latvia has also previously argued that the non-citizens are presumed nationals of another State, which can indicate that even though they are granted with some rights and benefits, they are still not recognised as nationals of Latvia and in accordance with this argument they should rather be recognised as stateless since no other state have claimed them as their nationals.
6.5. Non-citizens and Human Rights
Due to the groups special status, non-citizens are granted special treatment; they receive a special passport which gives them the status of belonging to Latvia, and thereby also the right to be protected by and return to Latvia. The diplomatic protection has also been confirmed by the Constitutional Court which has stated that “everyone having a Latvian passport shall be protected by the State”. 142 The passport has also been recognised as a valid visa-free travel document in the EU. According to Art. 2 of the USSR Status Law, non-citizens cannot be deported (and that status is permanent), as in comparison with third-country nationals. Upon ratification of international conventions, Latvia, as a rule, requests equal treatment between citizens and non-citizens. This was done, for example, by the ratification of the 1957 European Convention on Extradition. Latvia stated that the Convention should be equally applied to both citizens and non- citizens.143 It should also be noted that In Latvia all the ratified human rights treatises are considered law and also take priority over national provisions. Individuals therefore have the right to claim their treaty rights if they are violated.144
The Ombudsman of Latvia holds that all the Latvian non-citizens do enjoy all the rights set out in Chapter 8 of the Latvian Constitution, and the international human rights
141 UNHCR, “Expert Meeting, The Concept of Stateless Persons under International Law, Summary Conclusions”, 2010, para. 11. 142 Latvian Constitutional Court, Case No. 2004-15-0106, 7 March 2005, para. 17 143 ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, p. 12- 13, Kruma, K, “Country report: Latvia”, p. 8, Lottman, A, “No Direction Home: Nationalism and Statelessness in the Baltics”, p. 508, Molnár, T, “Remembering the Forgotten: International Legal Regime Protecting the Stateless Persons – Stocktaking and New Tendencies”, p. 843. 144 Ziemele, I, State Continuity and Nationality: The Baltic States and Russia – Past, Present and Future as Defined by International Law, p. 324.
43 treatises ratified by Latvia. There are only two exceptions to their rights; the right to freely pursue any career and to have the right to vote. However, these two rights correspond to exceptions in Art. 25 of ICCPR, which states that every citizen shall have the right to participate in public affairs, and therefore Latvia does not violate international law with these restrictions.145 The Ombudsman also claims that there have been found no infringements of the right to life and freedom of the non-citizens, and that they have equal access to courts and a fair hearing, and enjoy the same protection while staying abroad as ordinary citizens. Further, he claims that there has been no breaches of the non-citizens rights to privacy and family life, and that there are no restrictions on the non-citizens right to enjoy freedom of religion and to enjoy their culture. Finally, the Ombudsman also claims that non-citizens enjoy the same social guarantees as citizens, and that non-citizens have the same right to free education and have the right to establish commercial companies and access to employment in the private sector, although with some restrictions in the public sector.146
However, since they are prohibited from voting at any level, they can not change their status as second class citizens and can not put pressure on the state to enhance their protection and rights.147 It is unlikely that an internal political movement will succeed in changing the citizenship laws since political actors that take stand for the rights of the non-citizens risk being pursued as agitators and enemies of the state. This is why Lottman argues that only consistent international pressure has the potential to change Latvias domestic policies, but since Latvia is a member of both EU and NATO, the country’s incentives to change them even further might be a bit lower compared to pre- accession to the both organisations. 148 In a recent case brought to the ECtHR, Petropavlovskis v. Latvia, the applicant had been actively involved in protests against the Latvian education reform149, and in connection with this participated in meetings, demonstrations and made several public statements demanding that the Russian- speaking population has a right to education in their own language. When applying for
145 Ombudsman of the Republic of Latvia, “Re: Respect for the Rights of Non-Citizens in the Republic of Latvia”, p. 1-4. 146 Ombudsman of the Republic of Latvia, “Re: Respect for the Rights of Non-Citizens in the Republic of Latvia”, p. 2-3. 147 Barrington, L.W., “The Making of Citizenship Policy in the Baltic States”, Georgetown Immigration Law Journal, 1998-1999, p. 164. 148 Lottman, A, “No Direction Home: Nationalism and Statelessness in the Baltics”, p. 519. 149 European Court of Human Rights, 13 January 2015, Petropavlovskis v. Latvia, Application No. 44230/06, para. 8.
44 naturalisation, the applicant was refused on the grounds that he had, in words and in action, demonstrated that he did not have loyalty to Latvia. According to the Government, the denial of naturalisation did not affect the applicant’s rights or freedoms since he had freely expressed his political views and opinions in connection to the education reform and he had not been a subject to any punishment. Rather, the government argued, the refusal was merely an attempt to protect Latvian democracy. Since there is no article guaranteeing the right to nationality in the ECHR, as in art 15 of the Universal Declaration of Human Rights, the Court did not rule on the question whether the denial of naturalisation was a punishment. Though the Court concluded that Latvia had not violated art. 10 of ECHR, and did not mention whether the actions of Latvia were to be seen as punitive measures, only that he actually had the right to express his opinion without being stopped or censured while he was expressing his opinions.150 The case does, however, illustrate how politically sensitive these issues are in Latvia, and how political activism may give rise to problems for non-citizens who engage in it.
In despite of the rights entitled to the non-citizens, there have been internal criticism of the situation, most notably from Latvian Non-Citizens Congress (NCC) which was founded in connection to a campaign for automatic granting of citizenship to all non- citizens. The NCC are seeking the representation of non-citizens and are trying to end the phenomenon of non-citizenship. Their aim is to create a platform for discussion concerning problems of non-citizenry, as well as draw international attention to the phenomenon. However, the interest have turned out to be rather low, as of March 2013 1,852 persons have registered at the NCC’s webpage.151 However, the NCC has reported on several areas where there can be found differences between citizens and non-citizens. For example, they are not allowed to hold certain occupations (such as judge, police, attorneys and paralegals), there are restrictions on owning land, only citizens of Latvia are guaranteed legal aid while abroad, non-citizens are not allowed to enrol in some of the higher education institutions, a citizen may be deprived of his/her status only by a court ruling but a non-citizen can be deprived of his/her status through an administration process. Furthermore, the work experience and unemployment
150 A.a., para. 8, 12, 17, 65, 85-87. 151 Latvian Centre for Human Rights, “Second Alternative Report on the Implementation of the Council of Europe Framework Convention for the Protection of National Minorities in Latvia”, s. 51-52.
45 benefits collected before 1991 are not included when determining the amount of pensions to non-citizens.152 This was also the subject of ruling brought before the ECtHR in the Andrejeva v. Latvia case. Andrejeva, a non-citizen, had come to Latvia in 1954 but had worked for 17 years outside of Latvia, yet on Soviet territory. This period was not taken into account when her pension were to be calculated, and as a result she received a lower pension.153 Latvia denied discrimination, and stated that it was not unreasonable that the Latvian state took full responsibility for their citizens alone and that Mrs Andrejeva had refused to apply for naturalisation and thereby not received the desired pension.154 The Court concluded that Mrs Andrejevna only had stable legal ties with Latvia, and that Latvia therefore the only state which can be assumed to have a responsibility for her in terms of social security. If the fact that she could avoid the discrimination by becoming a Latvian citizen would be accepted as grounds for dismissal, it would make Art. 14 empty of substance and the Court therefore found that Latvia had violated Art. 14 in conjunction with Art. 1 of Protocol no. 1.155 However, Judge Ziemele was of a partly dissenting opinion, stating that if Latvia has any obligations stemming from the Soviet period, this would defy the fact that the occupation and annexation of Latvia were illegal in accordance with international law.156 In spite of the ECtHR judgment, the problem is not yet fully solved. This was also commented by the Advisory Committee on the Framework Convention for the Protection of National Minorities’ Second Opinion in 2013, “the Advisory Committee regrets that the 2009 Andrejeva Judgment of the European Court on Human Rights has not led to a comprehensive solution regarding the calculation of pensions of citizens and “non-citizens”.157 The Commission further notes that the Latvian Government has signed bilateral agreements with the Russian Federation and a number of other countries in which “noncitizens” spent periods of employment under the Soviet Union, but the Commission remains concerned by the fact that these agreements do not cover all
152 The complete report on differences between citizens and non-citizens of Latvia can be found on NCC’s webpage, http://www.noncitizens.eu/ 153 European Court of Human Rights, 18 February 2009, Andrejeva v. Latvia, Application No. 55707/00, para. 10, 15. 154 A.a., para. 71-72. 155 A.a., para. 88, 91. 156 A.a., Partly Dissenting Opinion, para. 22. 157 Council of Europe, “Advisory Committee on the Framework Convention for the Protection of National Minorities” Second Opinion in 2013, para. 139.
46 former republics of the Soviet Union and are therefore not suitable to address the situation vis-à-vis all “non-citizens”.”158
Even though the non-citizens are, according to the Latvian State, entitled with full social rights and all the rights constituted in the Satversme, it has been shown that there are still some gaps in the protection of the non-citizens which makes them more vulnerable than Latvian citizens. This gap can only be closed if they chose to naturalise and become full citizens. Due to this, it can be concluded that the possession of a citizenship is important for the non-citizens in order to fully grant them with all their human rights.
7. Russian criticism and interference
The question of Latvias predominately ethnic Russian population of non-citizens has been an issue between Latvia and Russia since the fall of the Soviet Union. Russia has an interest in what they call the “near abroad”, which refers to the former republics of the Soviet Union, and does not want to lose its influence in these areas. Russia also have the perception that it has a responsibility to protect the interests of Russian-speaking minorities in the “near abroad”.159 The Russian Federation has named these policies their compatriot policy and in accordance with this policy they do not differentiate between ethnic Russians and Russian-speakers.160 There is also a growing number of Russian citizens that reside in Latvia. After the Russian-Georgian conflict in 2008, an amendment to the Federal Law on Defence was made by the Russian parliament (the Duma), which allows the Russian military to use force in order to protect Russian interests and citizens abroad. The rather vague wording make it possible to use the amendment on a number of different scenarios. A similar provision is also set out in the Russian military doctrine.161 However, national legislation cannot be enforced without being in compliance with international standards concerning rescue operations of
158 A.a., para. 139. 159 Kalvaitis, R.M., “Citizenship and National Identity in the Baltics”, p. 269. 160 ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, p. 27- 29. 161 Проект федерального закона «О внесении изменений в Федеральный закон «Об обороне» (Projekt federalnogo zakona «O vnesenij izmenenij v Federalnij zakon «Ob oborone», Concerning Changes in the Law of Defence), 10 August 2009, Russian Federation, Военная доктрина Российской Федерации (Voennaja doktrina Rossijskoj Federatsii, The military doctrine of the Russian Federation), Approved by the President of the Russian Federation, 5 February 2010. para. 4, p. 20, p. 26, p. 27(k).
47 nationals in another country, but Russia can trough these documents use the rhetoric of protecting Russian nationals abroad.
Russia has expressed concern about the situation in Latvia and argued that the Latvian regime is a sort of apartheid, that the policies carried out by the Latvian state is close to ethnic cleansing and genocide, and that Latvia is witnessing the rebirth of fascism.162 The Russian Foreign Ministry also publishes an annual report on human rights within the EU.163 Russia has consistently criticised Latvia for their treatment of the non- citizens, and does not agree with the Latvian classification of the non-citizens. Rather, they are stating that the non-citizens population is constituting a population of mass statelessness which are deprived of their fundamental rights, such as political participation. Furthermore, Russia has also criticised the naturalisation process, calling the Latvian authorities hypocrites since they say that they are promoting naturalisation among non-citizens while the naturalisation numbers are still slow and the efforts by the Latvian state is not sufficient. In 2013, the Latvian Citizenship Law was amended in order to provide and opportunity to obtain dual citizenship. Russia finds in its Human Rights Report that this amendment is discriminatory against the Russian-speaking population since dual citizenship is only allowed with certain countries164, Russia not being one of them. Russia has also claimed that Latvia is not fulfilling their international commitments due to CRC since 15,000 children still are stateless and suggests that all children born in Latvia, to citizens or to non-citizens, should be automatically granted with citizenship.165
Since the independence of Latvia, Russia has tried to make the question of Russian non- citizens into an international issue. They have succeeded in putting the issue on the agenda of all the major international organisations, such as the UN, OSCE, CoE, CBSS, EU and NATO. In 1992 Russia pushed for a fact-finding mission by the UN, which was also carried out in the fall of 1992. However, the mission did not find any gross
162 Muiznieks, N, Latvian-Russian Relations: Domestic and International Dimensions, LU Akadēmiskais apgāds, 2006, p. 119-123. 163 “ДОКЛАД О СИТУАЦИИ С ОБЕСПЕЧЕНИЕМ ПРАВ ЧЕЛОВЕКА В ЕВРОПЕЙСКОМ СОЮЗЕ” (Report on the Situation of Human Rights in the European Union), 2012 and 2013. 164 Dual citizenship is permitted to Member States of EU, EFTA and NATO and countries that Latvia has entered agreements regarding dual citizenship. (Section 12, para. 2 and 3 Latvian Citizenship Law). 165 “ДОКЛАД О СИТУАЦИИ С ОБЕСПЕЧЕНИЕМ ПРАВ ЧЕЛОВЕКА В ЕВРОПЕЙСКОМ СОЮЗЕ” (Report on the Situation of Human Rights in the European Union) p, 48-49 (2013), p. 44-45 (2012).
48 violations of human rights, but rather an anxiety among USSR settlers concerning their future status. Russia did however continued to raise the issue among various UN bodies throughout the years, claiming that Latvia is systematically discriminating against ethnic Russians and Russian speakers.166 This perception is also fairly common among the ethnic Russian population in Latvia. According to surveys conducted by EU-MIDIS and Eurobarometer in 2008, around 25 per cent of ethnic Russians in Latvia perceive that discrimination based on ethnic or immigrant origin is “very” or “fairly” widespread.167 Russia claims that all the major international organisations, such as the UN, OSCE, CERD, CoE and the European Commission, have concluded in their expert reports that Latvia are committing violations of human rights on a massive scale.168 Russia has also emphasised the question in both OSCE and the CoE, which was seen by Latvia as an attempt to delay Latvias accession to the EU, with comments such as that Latvia was not worthy of being invited to the EU.169 This situation resembles that which has occurred in Georgia in 2008, when both France and Germany withdrew their support for Georgia becoming a member of NATO since the question concerning the boarder conflict between Russian and Georgia still was unresolved.170 Before Latvias admission to the EU in 2004, Russian officials voiced concerns about the rights of the Russian non-citizen population in Latvia. Russia pushed EU to put this issue on the EU agenda. Russia also accused EU for accepting enlargement at any price, and said that the problems in Latvia and the Baltics could become a potential source of undermining the EU-Russia relationship.171 The Russian pressure has not stopped after the EU accession. The Russian President Vladimir Putin said in 2006 that protecting Russian compatriots in the Baltics is Russia’s moral obligation.172 In 2008, Russia’s former president Dmitry Medvedev signed a decree allowing non-citizens of the Baltics to enter Russia visa-free. According to the ENACT, the Russian compatriot policy has
166 Muiznieks, N, Latvian-Russian Relations: Domestic and International Dimensions, p. 119-123. 167 EU-MIDIS, “Data in Focus Report Multiple Discrimination, European Agency for Fundamental Rights, 2010, p. 9. 168 “ДОКЛАД О СИТУАЦИИ С ОБЕСПЕЧЕНИЕМ ПРАВ ЧЕЛОВЕКА В ЕВРОПЕЙСКОМ СОЮЗЕ” (Report on the Situation of Human Rights in the European Union), p, 45. (2012). 169 Muiznieks, N, Latvian-Russian Relations: Domestic and International Dimensions, p. 119-123. 170 Allison, R, Russia, the West and Military Intervention, First Edition, 2013, s. 166-167 171 Elsuwege van, P, “Russian-speaking minorities in Estonia and Latvia: Problems of Integration at the threshold of the European Union”, p. 28-29. 172 Newsru. com, “В Петербурге открылся Всемирный конгресс соотечественников: на их переселение в РФ выделили 4,6 млрд рублей” (The World Congress of Compatriots opened in St. Petersburg: 4,6 Billion Rubles allocated to their Resettlement in the Russian Federation).
49 grown stronger over the years, and therefore one might predict that their level of pressure will continue to grow.173
Russia argues that they have to protect the Russian diaspora in the former Soviet republics due to Latvias human rights violations. However, critics have said that the Russian rhetoric of protecting the diaspora is just an excuse to further continue its involvement in the internal affairs of the former Soviet republics.174 However, Lottmann suggest that not all Russian pressure has to be negative as long as they do not violate international law. For example, using international, diplomatic pressure is a legitimate way to change the policies of another country. At the same time, the Russian pressure could lead to more nationalism in Latvia, which might spark more ethnic tensions and thus lead to a more instable situation. However, easing the naturalisation process even further might, to a certain extent, eliminate the Russian excuse for pressuring the domestic policies of Latvia.175
Non-citizens have an incentive to keep close ties to Russia due to family and business relations that often extend over the border. Therefore, one of the main reasons why non- citizens are hesitant to neutralise is that loosing that status would make it more difficult to travel to Russia. In June 2008 the Russian president signed a decree that makes it possible for non-citizens to travel visa-free to Russia. In the opinion of many Latvian politicians this is an intentional action of Russia to lower the incentives for non-citizens to go through the naturalisation process and thereby make the status of non-citizen more attractive. Russia has also made it favourable for those who chose to become Russian citizens, since all Russian pensioners residing in Latvia receive a Russian pension. The retirement age is lower in Russia compared to Latvia, which makes it more attractive for individuals in the pre-retirement age to apply for a Russian citizenship instead. In 2009, the number of non-citizens applying for Russian citizenship (2706) exceeded the number of individuals who applied for Latvian citizenship (2080).176 Thus, while it may be attractive to gain full integration with the EU as Latvian citizen, there are
173 ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, Enacting European Citizenship, p. 27-29. 174 Lottman, A, “No Direction Home: Nationalism and Statelessness in the Baltics”, p. 513-514. 175 A.a., p. 515, 519. 176 Kruma, K, Country Report Latvia, “The INTEC project: Integration and Naturalisation test: the new way to European Citizenship”, p. 43.
50 competing incentives to retain the status of non-citizens even if this means limiting some of their rights.
8. Conclusions
As this thesis has shown, the question of whether the Latvian non-citizens should be considered stateless or not is, to a large extent, actually a question about the nature of nationality as a legal concept. International law clearly states that every individual has the right to a nationality, and that the lack of nationality is the definition of statelessness. With regard to the question of its non-citizens, Latvia has correctly pointed out that these individuals have a special link to Latvia, and that in most regards they enjoy the same protection and rights as that of regular Latvian citizens. However, by arguing that the non-citizens are actually not stateless because of their comparatively extensive privileges, it seems that Latvia makes a distinction between the idea of citizenship and that of nationality. In other words, Latvia must consider that the non- citizens possess a nationality, which could be Latvian or Russian, even though they do not hold a citizenship to either state. The argument made by Sokoloff, referred to earlier in this paper, is that this distinction between the concepts of nationality and citizenship cannot be made in a legal context because it has no bearing under international law. However, the concept of nationality is not clearly defined, and it might therefore be open to different interpretations. In the case of Latvia it seems that the definition that is partially based on cultural and ethnic origin has been preferred.
As previously shown in this paper, the non-citizens are protected by the state and are granted with the human rights as stated in the Latvian constitution. One might therefore argue that the non-citizen can be considered as de facto citizens since they enjoy almost the same rights as de jure citizens. However they do lack the most fundamental link to the state, namely a recognised citizenship which grants individuals with more security and rights. Perhaps the major objection that can be made against labelling the non- citizens of Latvia as de facto citizens, and thereby not stateless, is that they lack the long term security of having the rights that they currently enjoy formalised in a citizenship. Thus, they are more vulnerable. Another apparent difficulty with regarding them as de facto citizens is their exclusion from political participation. This circumstance is
51 particularly problematic because political action from non-citizens who hope to change citizenship laws may be perceived as agitation and disloyalty toward the state. As illustrated above, the Petropavlovskis case may be an indication of this. Thus, even if the non-citizens of Latvia are “privileged”, they are still not full citizens and lack some fundamental securities. Notably, they cannot challenge the state in the same way as ordinary citizens and they do not possess the power to change their own situation. For this reason, the international community may have to play a particularly large role if Latvia is to be persuaded into improving the situation for non-citizens.
Another key point about the issue of non-citizens is that there may exist a contradiction between granting non-citizens increased rights, and keeping the incentives for them to apply for naturalisation. As described above, the annual naturalisation is rather low, and only about a quarter of the non-citizens said that they wanted to go through a naturalisation process. This may be a sign of content, and that individuals do not want to put in the extra effort to achieve something they do not consider important. Has Latvia, perhaps, made the life for the non-citizens too comfortable? If so, then the international community have also played a part in this since they have put pressure on Latvia to change their policies. This does especially concern EU and NATO. In some sense, one could argue, a citizenship may not be necessary since the protection through international treaties has become so extensive. In this view the international human rights regimes has somewhat failed since instead of protecting has lowered the incentives to reduce statelessness, both from the perspective of the state and the individuals.
There is also an apparent foreign policy dimension to the question of Latvian non- citizens. The Russian Federation has taken an interest in the rights of the non citizens, of which many are ethnic Russians or Russian-speakers. These issues could lead to diplomatic conflict and instability in the region, especially given the conduct of Russia during the past couple of years where they have shown that they are prepared to use violence in order to “protect” its compatriots. From the point of view of many Latvians, the non-citizens constitute a threat to internal political stability and resist giving them the political influence associated with full citizenship. This might give rise to a situation where non-citizens, and the Russian-speaking minority as a whole, are actually pushed further away from Latvia and “Latvian values”, whereby the option of becoming a
52 citizen of the Russian Federation might seem more favourable. An increased number of Russian citizens could, in turn, lead to Russia intensifying its involvement through claims of protection of nationals abroad. If, however, Latvia granted their non-citizens with full citizenship, the possibilities and incentives for Russia to intervene in Latvian national policies would be smaller. In a way, this appears to be a catch 22-moment. Latvians are afraid that if citizenship is granted to all the non-citizens, they will not be loyal to Latvia and thereby become a threat to the nation. But if they do not resolve the issue of the non-citizens, Russia can continue to exercise criticism and pressure, which might enhance the Russian influence over Latvia. The same goes for Russia, since they seem to apply double standards to the situation of the non-citizens. Internationally, they criticize the situation from a human rights point of view, trying to show that they are acting from the best interests of the non-citizens. At the same time they are lowering the incentives for the non-citizens to actually become a Latvian citizen, since they for example grant only non-citizens with visa-free travel. This might be an indication that Russia is simply trying to exercise their regional influence and still be in control over the domestic policies of the former Soviet republics.
53 9. References
UN Documents
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.
UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195.
UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty Series, vol. 989, p. 175.
UN General Assembly, Convention Relating to the Status of Stateless Persons, 28 September 1954, United Nations, Treaty Series, vol. 360, p. 117.
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).
Doudou, Diène, “Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Mission to Latvia”, Human Rights Council, Seventh Session, A/HCR/7/19/Add.3, 5 March 2008.
Mikulka, V, International Law Commission, “Third Report on Nationality in Relation to the Succession of States”, A/CN.4/480, 27 February 1997.
Weissbrodt, D, ”Final report on the rights of non-citizens”, U.N. Doc. E/CN.4/Sub.2/2003/23, 2003.
UN Committee on the Elimination of Racial Discrimination, “Consideration of Reports Submitted by States Parties under Article 9 of the Convention”, CERD/C/63/CO/7, 10 December 2003.
54 Report of the Committee on the Elimination of Racial Discrimination, General Assembly, Fifty- seventh Session, Supplement No. 18 (A/57/18), August 2002.
Concluding observations of the Committee of the Elimination of Racial Discrimination: Latvia, CERD/C/304/Add.79, 12 April 2001.
Concluding Observations of the Human Rights Committee: Latvia, CCPR/C/79/Add.53; A/50/40, 3 October 1995.
UNHCR, “Expert meeting The Concept of Stateless Persons under International Law Summary Conclusions”, Prato, Italy, 27-28 May 2010.
UNHCR, “Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person”, HCR/GS/12/02, 5 April 2012.
United Nations, “State Parties to the 1954 Convention Relating to the Status of Stateless Persons”, Treaty Series, 2014.
United Nations, “State Parties to the 1961 Convention on the Reduction of Statelessness”, Treaty Series, 2014.
EU Documents
Council of Europe Treaty Office, “European Convention on Nationality”, Open for Signature 6/11/1997, Entry into Force 1/3/2000.
Council of Europe, “Advisory Committee on the Framework Convention for the Protection of National Minorities”, Second Opinion on Latvia, ACFC/OP/II(2013)001, 18 June 2013.
Council of Human Rights: Commissioner for Human Rights, Hammarberg, T, “No one Should Have to be Stateless in Today’s Europe”, 9 June 2008.
National Documents and Legislature
Republic of Latvia, Citizenship Law, Adopted by the Saeima 22 July 1994, Amended 9 May 2013.
Republic of Latvia, Law on the Status of a Long-term Resident of the European Community in the Republic of Latvia, Adopted by the Saeima 22 June 2006.
55 Republic of Latvia, On the Status of Former U.S.S.R. Citizens who do not have the Citizenship of Latvia or that of any Other State, Adopted by the Saeima 25 April 1995, Amended 20 May 2004.
Ombudsman of the Republic of Latvia, “Re: Respect for the Rights of Non-Citizens in the Republic of Latvia”, No. 1-5/318, 5 December 2013.
Ombudsman of the Republic of Latvia, “Re: Legal Status of Non-citizens”, No. 6-1/1007, 8 December 2011.
Ombudsman of the Republic of Latvia, “Frakcijas „Par cilvēka tiesībām vienotā Latvijā” priekšsēdētājam Jakovam Plineram”, September 2008.
МИНИСТЕРСТВО ИНОСТРАННЫХ ДЕЛ РОССИЙСКОЙ ФЕДЕРАЦИИ, ДОКЛАД О СИТУАЦИИ С ОБЕСПЕЧЕНИЕМ ПРАВ ЧЕЛОВЕКА В ЕВРОПЕЙСКОМ СОЮЗЕ, Москва, 2013 (Ministry of Foreign Affairs Russian Federation, Report on the Situation of Human Rights in the European Union, Moscow 2013).
МИНИСТЕРСТВО ИНОСТРАННЫХ ДЕЛ РОССИЙСКОЙ ФЕДЕРАЦИИ, ДОКЛАД О СИТУАЦИИ С ОБЕСПЕЧЕНИЕМ ПРАВ ЧЕЛОВЕКА В ЕВРОПЕЙСКОМ СОЮЗЕ, Москва, 2012 (Ministry of Foreign Affairs Russian Federation, Report on the Situation of Human Rights in the European Union, Moscow 2012).
Russian Federation, Военная доктрина Российской Федерации (The Military Doctrine of the Russian Federation), Approved by the President of the Russian Federation, 5 February 2010.
Russian Federation, Проект федерального закона «О внесении изменений в Федеральный закон «Об обороне» (Concerning Changes in the Federal Law of Defence), 10 August 2009.
Case Law
International Court of Justice, 6 April 1955, Nottebohm Case Liechtenstein v. Guatemala; Second Phase.
European Commission on Human Rights, 5 October 1972, X. v. Austria, Application No. 5212/71.
European Commission on Human Rights, 1 July 1985, Family K. and W. v. Netherlands, Application No. 11278/84.
European Commission on Human Rights, 22 May 1995, Kafkasli c. la Turquie, Application No. 21106/92.
European Commission on Human Rights, 21 May 1996, Zeibek v. Greece, Application No. 34372/97.
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European Commission on Human Rights, 2 September 1996, Slepcik v. the Netherlands and the Czech Republic, Application No. 30913/96.
European Court of Human Rights, 18 February 2009, Andrejeva v. Latvia, Application No. 55707/00.
European Court of Human Rights, 11 October 2011, Genovese v. Malta, Application No. 53124/09.
European Court of Human Rights, 13 January, Petropavlovskis v. Latvia, Application no. 44230/06, 13 January 2015.
Latvian Constitutional Court, Case No. SKA-89, C27261801 24 August 2004.
Latvian Constitutional Court, Case No. 2004-15-0106, 7 March 2005.
Latvian Constitutional Court, Case No. A42173104 SKA 136, 13 April 2005.
Literature
Allison, R, Russia, the West and Military Intervention, Oxford University Press, First Edition, 2013.
Blitz, B.K., Lynch, M, Statelessness and Citizenship – A comparative Study on the Benefits of Nationality, First Edition, Edward Elgar, 2011.
Kruma, K, EU Citizenship, Nationality and Migrant Status – An Ongoing Challenge, First Edition, Martinus Nijhoff Publishers, 2014.
Muiznieks, N, Latvian-Russian Relations: Domestic and International Dimensions, LU Akadēmiskais apgāds, 2006.
Shaw, M.N., International law, Cambridge University Press, Sixth Edition, 2008. Weissbrodt, D, The Human Rights of Non-citizens, Oxford, First Edition, 2008.
Ziemele, I, State Continuity and Nationality: The Baltic States and Russia – Past, Present and Future as Defined by International Law, First Edition, Martinus Nijhoff Publishers, 2005.
57 Articles
Barrington, L.W., “The Making of Citizenship Policy in the Baltics”, Georgetown Immigration Law Journal, Vol. 13:159-199, 1998-1999.
Batchelor, C.A., “Stateless Persons: Some Gaps in International Protection”, International Journal of Refugee Law, Vol. 7 No. 2, 1995.
Batchelor, C.A., “Transforming International Legal Principles into National Law: The Right to a Nationality and the Avoidance of Statelessness”, Refugee Survey Quarterly, Vol. 25 Issue 3, 2006.
Blackman, J.L, “State Succession and Statelessness: The Emerging Right to an Effective Nationality Under International Law”, Michigan Journal of International Law, Vol. 19:1141- 1194, 1997-1998.
Cahn, C, Minorities, “Citizenship and Statelessness in Europe”, European Journal of Migration and Law, Vol. 14:297-316, 2012.
Collins, C, Weissbrodt, D, “The Human Rights of Stateless Persons”, Human Rights Quarterly, Vol. 28:245-276 2006.
Gelazis, N.M., “The European Union and the Stateless Problem in the Baltic States”, European Journal of Migration and Law, Vol. 6:225-242, 2004.
Groenendijk, K, “Nationality, Minority and Statelessness – The Case of the Baltic States”, Helsinki Monitor, Vol. 4, 1993.
Kalvaitis, R, ”Citizenship and national identity in the Baltic States”, Boston University International Law Journal, Vol.16: 231-271, 1998.
Lottman, A, “No Direction Home: Nationalism and Statelessness in the Baltics”, Texas International Law Journal, Vol. 43:503-519, 2008.
Manly, M, “UNHCR’s Mandate and Activities to Address Statelessness in Europe”, European Journal of Migration and Law, Vol. 14:261-277, 2012.
Molnár, T, “Remembering the Forgotten: International Legal Regime Protecting the Stateless Persons – Stocktaking and New Tendencies”, US-China Law Review, Vol. 11, 2014.
Tucker, J, “Questioning de facto Statelessness By Looking at de facto Citizenship”, Tilburg Law Review, Vol. 19, 2014.
58 Waas van, L, “Fighting Statelessness and Discriminatory Nationality Laws in Europe”, European Journal of Migration and Law, Vol. 14:243-260, 2012.
Reports
Blitz, B.K., Forced Migration Policy Briefing 3, “Statelessness, protection and equality”, Refugee Studies Centre Oxford Department of International Development University of Oxford, September 2009.
Kruma, K, “Country report: Latvia”, EUDO Citizenship Observatory, 2013.
Kruma, K, “Country Report Latvia, The INTEC project: Integration and Naturalisation test: the new way to European Citizenship”, Centre for Migration Law Radboud University Nijmegen, November 2010
Kruma, K, “Naturalisation Procedures for Immigrants: Latvia”, EUDO Citizenship Observatory, 2013.
Elsuwege van, P, Russian-speaking minorities in Estonia and Latvia: Problems of Integration at the threshold of the European Union, European Centre for Minority Issues, ECMI Working Paper #20, 2004
ENACT, “Deliverable: WP8 - Enacting EU Citizenship in Latvia: The Case of Non-Citizens”, Enacting European Citizenship, FP7-SSH-2007-1-217504, 2008.
Non-citizens congress, “Thematic Submission Concerning Status of Non-citizens, including Naturalisation Process”, Submission of the Latvian Non-citizens’ Congress to the UN Human Rights Committee, 14 February 2014.
“Second Alternative Report on the Implementation of the Council of Europe Framework Convention for the Protection of National Minorities in Latvia”, Latvian Centre for Human Rights, 2013
Sokoloff, C, “Denial of Citizenship: A Challenge to Human Security”, The Advisory Board on Human Security, 2005.
“Synthesis Report: Conclusions and Recommendations on the Situation of Fundamental Rights in the European Union and its Member States in 2003”, E.U. Network of Independent Experts on Fundamental Rights, February 2004
59 EU-MIDIS, European Union Minorities and Discrimination Survey, “Data in Focus Report Multiple Discrimination, European Agency for Fundamental Rights, 2010.
Internet Sources
Annual Report, Amnesty International Report 2014/15, Republic of Latvia. [https://www.amnesty.org/en/countries/europe-and-central-asia/latvia/report-latvia/] Visited 12 April 2015.
Office of Citizenship and Migration Affairs, Republic of Latvia, Iedzīvotāju skaits pašvaldībās sadalījumā pēc valstiskās piederības , (Population in municipalities distributed by nationality), 01.07.2014. [http://www.pmlp.gov.lv/lv/assets/images/statistika/iedzivotaju%20reg.statistika%2001072014/ ISPP_Pasvaldibas_pec_VPD.pdf] Visited 12 April 2015.
Newsru. com, “В Петербурге открылся Всемирный конгресс соотечественников: на их переселение в РФ выделили 4,6 млрд рублей” (The World Congress of Compatriots opened in St. Petersburg: 4,6 Billion Rubles allocated to their Resettlement in the Russian Federation), 25 oktober 2006. [http://www.newsru.com/arch/russia/24oct2006/meet.html] Visited 12 April 2015.
Other
Inter American Court of Human Rights, ”Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion” OC-4/84, January 19, 1984, (Ser. A) No. 4, (1984).
Document A/CN.4/64, ”Nationality, including Statelessness – Report on the Elimination or Reduction of Statelessness by Roberto Cordova, Special Rapporteur Topic: Nationality including statelessness” Extract from the Yearbook of the International Law Commission, Vol. II, 1953.
Edinburgh Declaration of the OSCE Parliamentary Assembly and Resolutions Adopted, Thirteenth Annual Session, Edinburgh, 5-9 July 2004.
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