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Issue №3 Right to nationality (citizenship)

Crimea beyond rules. Issue №3. Right to nationality (citizenship)

In the history of the XX century we have precedents of the forced naturalization of citizens and applying of the optation right. One of the most striking examples was the German-Czechoslovak Treaty on Citizenship and Optation in November 20, 1938. This treaty severely limited the right of choice the citizenship, because provided forced expulsion, irreversibility of the option and dependence between citizenship and place of residence. The post-war international legal practice was focused on protecting against the appearance of stateless persons. The occupation of Crimea in February-March 2014 became a new challenge for the world community in the field of ensuring and protecting human rights. It showed that there are no effective mechanisms to retain the citizenship in the international legal field. Forced naturalization the Crimeans by of the Russian Federation indicates the actual appropriation of the population. Crimean Ukrainians who did not wish to accept Russian citizenship faced with a very difficult legal situation because:

1) because a lot of reasons, they couldn’t submit any application “about their desire to retain Ukrainian citizenship” on time;

2) on the basis of the law 6-FCL they got refusal in registration their residence permit as Ukrainian citizens, since they were “automatically” recognized the Russian Federation citizens;

3) they cannot offload the imposed citizenship, because according to the Russian Federation legislation, to submit the offload application it is necessary to have a passport of the Russian Federation citizen.

As a result, they cannot take formal job place, use medical services, and get pensions and social benefits. However, it is practiced as well as other human rights violations, for example, moving people from / to the occupied territories.

Because of very limited timeframes for a making decision on becoming a citizen of the Russian Federation or on retaining the citizenship of Ukraine, many Crimeans made it in a passive mode. As a result, the Russian legislation arbitrarily covers them. This legislation, in particular, provides to serve in the army of the aggressor country and to evince the loyalty to the “new homeland”. This practice is prohibited by the Convention on the laws and customs of land warfare, the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War. According to those documents this practice is a war crime. The refusal from the Russian Federation citizenship inevitably led to a significant conscious restriction of their rights and freedoms, because Crimeans obtained the alien status at home.

Such precedents have happened in modern history. As a result of the disintegration of Yugoslavia, some former citizens of this country in various ways got into a situation of loss of legal personality. On this matter, the European Court of Human Rights maintained the applicants and stated discrimination on the national origin basis. That discrimination resulted in a significant restriction and deprivation of the applicants’ ability to exercise their rights.

The position of the Constitutional Court of the Russian Federation on the issue of the rights of Ukrainian citizens and stateless persons who live in Crimea without official registration and their obtaining the resident status is particularly interesting. The Constitutional Court refers to certain international normative acts in the field of human rights and determined the bond between a person and a certain territory as predominant in protecting the right to citizenship. So, the right to citizenship does not arise from the legal field of a particular state, but from binding a person to a specific territory. But that territory may belong to any state. Such a concept levels citizenship as one of human rights, and “fixes” the person to a certain territory.

In the second half of the XX century the international law changed the vector of development on the issue of the right to citizenship. The classical concept of the right to citizenship all issues related to obtaining, denying, depriving, returning citizenship considered the internal affairs of the state. According to this approach, citizenship was a right granted to a person by the state, and was not one of the fundamental human rights and freedoms. In the process of forming the human rights standards, the legal personality has gradually gained recognition by the international community. Citizenship was recognized as a factor that has a fateful influence on a person’s life. In connection with this circumstance, the role of a person’s opinion on the issue of the right to citizenship increases, and the discretion of states was limited by their obligations to protect and ensure human rights.

The complexity of the Crimean precedent of mass naturalization of the population lies in the fact that such a violation of human rights occurred for the first time. The international judicial and quasi-judicial bodies were not ready for this. The most consistent and complete right to citizenship is reflected in the American Convention on Human Rights. Other acts of international law as a rule speak about one or several aspects of this right:

1) the citizenship as an element of identity;

2) the citizen status as part of the right to privacy;

3) the right of the child to obtain the citizenship;

4) the guarantees of the right to citizenship, its preservation and change.

In addition, pre-Crimean events precedents of complaints to international human rights bodies are connected with litigating negative actions of the state – deprivation of citizenship and denial of its provision. Mass naturalization has become a challenge not only for the practice of international human rights mechanisms, but also for academic studies in international law. However, it does not mean that there are no effective mechanisms for litigating the forced naturalization, which is carried out by the Russian Federation against the loyal to Ukraine residents of the peninsula.

International law in the field of human rights does not distinguish the citizens, stateless persons and foreigners. In their conclusions and recommendations, international judicial and quasi-judicial instances call for ensuring and protecting the equality of all people in exercising their civil, political, economic, social and cultural rights, which are set forth in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic and Cultural Rights. Despite this, the consequences of the occupation of the Crimean peninsula created the conditions under which the realization of these rights became more complicated or impossible. Forced naturalization by the Russian Federation has led to:

1) the passport of a citizen of the Russian Federation has become necessary for the implementation of a number of property and social rights, receiving administrative services and employment in the public sphere;

2) Crimean Ukrainians, including citizens, who were internally displaced from Crimea, were at risk of criminal punishment for hiding the second citizenship or violating the requirement of the law to report its presence;

3) the quotas were established for issuing permits for temporary residence in the Crimea, as a result it is appeared a large group of people who could not get this right;

4) orphans and children deprived of parental care were deprived of the right to choose citizenship, because the administration-trustees agreed to cooperate with the Russian Federation.

Read the full version of thematic review “Crimea beyond rules. Right to nationality (citizenship)”.

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