A. Introduction
The term ‘passportisation’ refers to the practice of extending nationality to substantial numbers of individuals beyond the boundary of the state, including by forcible imposition of nationality. At an international level, two effects – each potentially an aim of value to the state extending its nationality – are the erosion of the territorial sovereignty of the state of residence by the new ability of the state of nationality to intervene to protect those possessing its nationality, conformably with article 51 of the UN Charter, and reduced scope for the individual to seek international protection as against a state of his or her nationality. In the post-Soviet period passportisation been much practised by the Russian Federation, in Georgia, Ukraine, and elsewhere. On 18 June 2024 Dr Gaiane Nuridzhanian provided a helpful account of recent decisions touching on it, including in the context of human rights. Since then the Grand Chamber of the European Court of Human Rights has decided an interstate case concerning Russian activities concerning Crimea, Ukraine v Russia (Re Crimea) appns 20958/14 and 38334/18) [2024] ECHR 569, which within its wider decision sets out significant findings regarding passportisation.
B. Passportisation and international law
The phenomenon of passportisation has in part been able to metastasise because international law exerts very limited restraint upon the power of states to extend their nationality to an individual. The Permanent Court of International Justice in its Nationality Decrees Issued in Tunis and Morocco on 8 November 1921, Advisory Opinion, 1923, PCIJ (ser B) No 4 (7 February 1923) held (pp 23-24) that nationality is, absent commitments to others by treaty, a matter which though it ‘may very closely concern the interests of more than one State’ is ‘not, in principle, regulated by international law. As regards such matters, each State is sole judge.’ This is re-emphasised at Articles 1-2 Convention on Certain Questions relating to the Conflict of Nationality Laws 1930, though (art 1) recognition by other States is due only ‘so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality’. This was not disturbed by the decision of the International Court of Justice in the Nottebohm case (Liechtenstein v Guatemala) ICJ Reports (1955) 4, declining to investigate the question of national citizenship (p 20) ‘The Court will deal with this question [opposability] without considering that of the validity of Nottebohm’s naturalization according to the law of Liechtenstein.’
This does not mean that nationality acquired in the course of passportisation will necessarily require recognition. There is a clear indication of a standard established in the 19th century by which naturalisation of adults must be volitional. That standard has been reiterated repeatedly by eminent experts. The League of Nations Committee of Experts for the Progressive Codification of International Law, in its 1926 preliminary draft convention, provided at Article 6 that ‘Naturalisation may not be conferred upon a foreigner without his having shown the will to be naturalised or at least without his being allowed to refuse naturalisation…’. In his 1949 Hague course lecture in Recueil des Cours, Professor Alexandre N Makarov contrasted 18th century French revolutionary practice, of treating all persons in France as citizens of the country, with (author’s translation):
‘On the other hand, later, the opposite principle, the principle that nationality cannot be granted against the will of the person concerned, [which] was considered as part of international law and as limiting the free appreciation of States in matters of nationality.’
Manley O Hudson in his report on Nationality, including Statelessness (ILC Yearbook 1952-II, p8, stated that ‘Naturalization must be based on an explicit voluntary act of the individual or of a person acting on his behalf’. Recently Peter Spiro has highlighted, conformably with the earlier sources, that by the 20th century, ‘states were subject only to one clear constraint: they could not naturalise an individual without [that person’s] consent’ (Spiro, p4).
Additionally the issue of recognition of nationality may be reached via other routes independently of the prohibition of non-volitional naturalisation: on this as relevant in the Russian Federation-Ukraine context in 2019 see Anne Peters here and here and me, potentially reaching the same end point, even whilst differing as to the route.
An interesting feature of passportisation is that positive acts of naturalisation are at first blush relatively immune from restraint by international and regional human rights laws. From the First World War onwards enduring international concerns touching nationality have mostly focussed on its denial, especially when this produces statelessness. State concerns regarding multiple citizenship, seen as diffusing loyalty and undermining availability of citizens for military service, never found concrete purchase in international law, and since the Second World War have faded to the point of near-disappearance (see for instance Peter Spiro, At Home in Two Countries: The Past and Future of Dual Citizenship, 2016, NYU Press). Article 15 Universal Declaration of Human Rights states the right to a nationality, and to protection from arbitrary deprivation or denial of the right to change it. This does not declare (though it may imply) freedom from non-consensual imposition of nationality after birth. The 1950 European Convention on Human Rights and Fundamental Freedoms failed to replicate the article 15 UDHR right, and the 1966 International Covenant on Civil and Political Rights attributes the right to acquire a nationality only to children (article 24(3)).
A striking characteristic of passportisation is the sense of historical parallel to events thought of today as pre-modern, or at least from a stage of early modernity very distinct from the present, hearkening instead to the pre-Westphalian Europe of the Thirty Years War, in which rulers legitimised armed aggression by the claim to defend those kindred to them in religion (arguably bringing about the highest level of human casualty in Europe since the Black Death), and Imperial Russia’s 19th century interventions in the Balkans in the name of Pan-Slavism.
The relatively limited scope for international law restraint on passportisation, beyond the established but poorly appreciated requirement for volition, makes the new decision of the ECtHR Grand Chamber still more interesting and impressive than it would otherwise be.
C. The decision of the ECtHR
In Ukraine v Russia (Re Crimea) the Court referred to its previous jurisprudence, including a number of cases in which it had to consider whether the article 8 ECHR right to private life bore on national conduct in the area of nationality. In Genovese v Malta – 53124/09 [2011] ECHR 1590; (2014) 58 EHRR 25 the Court’s 4th Section had reiterated (§30) that though respect for a person’s private life…’ did not guarantee any right to a particular nationality:
‘the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person’s physical and social identity.’
Identifying the relevant law, the Grand Chamber in Ukraine v Russia referred to this (§1031).
As to the underlying nationality provision, and Russian Federation practice, the decision states the position to be that by Russian law, all permanent residents of Crimea at ‘the date of admission of the Republic of Crimea into the Russian Federation’ were to be automatically naturalised as Russian citizens, unless they opted out within one month, declaring that instead they wished to retain their existing citizenship or remain stateless. Certain other provisions created ‘the possibility of voluntary withdrawal’ (§1034) and ‘over 3,400 permanent residents of Crimea’ had applied to opt out of Russian citizenship (§1035).
Addressing the complaint, the Court declined to examine, as requested by Ukraine, whether automatic imposition amounted, in itself, to a violation of the Convention, interpreted in the light of article 45 of the 1907 Hague Regulations. This forbids compulsion of inhabitants of occupied territory to swear allegiance to a hostile power, though the Court noted a 2017 report of the Office of the High Commissioner for Human Rights stating that forcible imposition of nationality could be interpreted as a breach of international humanitarian law (§§1026, 1032).
The Court observed that there was ‘acknowledged by international organisations, and not contested by the respondent Government’ a ‘climate of severe intimidation’ in the occupied territory, and that ‘all inhabitants of Crimea have been placed under immense pressure to obtain Russian passports and renounce their Ukrainian nationality’. Against this background:
…those who opted out became foreigners in their own land. Whereas they retained certain rights enjoyed by Russian Federation citizens (right to pension, free health insurance, social allowances, and the right to practice professions for which Russian Federation citizenship was not a mandatory requirement), “they cannot own agricultural land, vote and be elected, register a religious community, apply to hold a public meeting, hold positions in the public administration and reregister their private vehicle on the peninsula” (§1032)
The circumstances included:
‘the stark and impossible choice for those concerned between continuously having to live with the imposition of Russian citizenship and its consequences, on the one hand, and opting out on the other hand’.
The Court held that:
‘the alleged lack of an effective system of opting out of Russian citizenship that was automatically imposed by law constituted an interference with the right to respect for private life.’
Given those factors, while the Court held back from pronouncing generally on the lawfulness or otherwise of the Russian Federation’s system for opting out of Russian citizenship, it considered that, in any event, it imposed a disproportionate burden on persons subjected to it (§1036) given evidence that the procedures for opting-out were ineffective by reason of serious procedural obstacles and multiple obstacles/constraints in the practical exercise of the opt-out process, including an ‘extraordinarily short’ period during which the option could theoretically be exercised, the limited information to affected persons available about the procedure and the limited number of locations where individuals could effectively declare an intention to opt out (§1037). These manifest flaws ‘did not directly derive from that Law, but were the result of the implementation in practice of the system providing for the opt out…’. However they were ‘of such a scale and intensity as to prevent the permanent residents of Crimea concerned to effectively enjoy the possibility to opt out of Russian citizenship.’
D. Concluding Observations
The decision of the Grand Chamber is a strong one, and adds to the parallel Bratsylo & ors v Russian Federation decision of the UN Human Right Committee discussed by Dr Nuridzhanian in her post, as an example of international human rights laws being brought to bear on passportisation. Russia was excluded from the Council of Europe on 16 March 2022 after the further escalation of its aggression against Ukraine, and therefore ceased to be subject to the ECHR on 16 September 2022. Complaints relating to any event postdating 16 September 2022 therefore cannot be brought to the ECtHR. Ironically over time Russian withdrawal may add to the weight given to the Ukraine v Russia decision, as there is limited scope for any further decision by the ECtHR that might adopt a view less critical of Russian actions. Absent continued scope for application of ECHR, individuals will have, as Dr Nuridzhanian observed, to seek assistance from United Nations organs at least to the extent of recognition of breach of their rights.
In addition the Grand Chamber has left open important questions unlikely to disappear before they are addressed by institutions, including that of consistency with international law (or otherwise) of automatic non-consensual naturalisation mitigated only by provision of ‘opt-out’ provisions, and the consistency of effectively forcible naturalisation in international humanitarian law.
Finally, states will have to give close consideration to whether to recognise nationality imposed non-consensually under Russian (or any other) scheme of passportisation. Principled decisions conacring recognition could have considerable importance for disparate fields- for instance international protection, on the one hand, and refugee law, on the other- in the latter case for instance, will third states recognise the Russian Federation as a ‘country of nationality’ of a refugee claimant who has had Russian citizenship unilaterally imposed on him or her? The scope for non-recognition in case of arbitrary deprivation of nationality presents a possible starting point for the situation of a claimant with a nationality imposed in breach of international law.
