Juristica International

1. Comparative Models Versus Harmonisation

There has been confusion historically with the terms of “citizenship” and “nationality”. In some cases, the terms are used as synonyms. However, even when the terms are used in the same legal system, they can designate different phenomena. According to Frank Horn,¹ “citizenship” has been used to denote the status of persons who enjoy full political rights and privileges, while “nationals” are persons who are subjects of the state but who do not have full rights and privileges within the state that they are permanently residing in.

Michel Rosenfeld² has determined three historical models which have influenced national legislation in this field. Firstly, the German model is characterised by a predominance of the ethnos over the demos, that is, the nation is more fundamental than the state. According to the German model, therefore, citizenship is determined on the basis of jus sanguinis. The French model on the other hand is the opposite, whereby the demos predominates over the ethnos. Thus, the nation is a political phenomena. Third, the American model looks very much like its French counterpart as the demos has priority over the ethnos. However, the American state did not precede the American nation as both the state and nation were born at once. The key word of the American model is “constitution” which gives legal meaning to both notions.

Today, the contemporary global doctrine has several features including the values embedded in the Western concept of citizenship. These features are interconnected, interdependent and are found in several international treaties and “soft law”. The latest achievement which crystallises the whole set of ideas to positive law is certainly the European Convention on Nationality of 1997.

2. European Convention and International Law

The object of the Convention is set out in Article 1 which provides that this international regional instrument applies only to individuals. For the purpose of the Convention, Article 2a states that “nationality” means the legal bond between a person and a state, and does not indicate the person’s ethnic origin. In the same Article, Article 2d gives the legal scope of the term “internal law” extending it to include all types of provisions of a national legal system, including regulations, case law, customary rules and practice. Since the norms of international law can be regarded as an inseparable part of the domestic legal system, the rules derived from binding international instruments are also included.

One of the key provisions and a historical principle of international law is Article 3 of the Convention which states that matters of nationality are within the sphere of a state’s domaine reservé. Another existing principle states that nationality should not be granted arbitrarily. In this context, nationality is considered not to have been granted arbitrarily if this was done on the basis of origin (jus sanguinis), place of birth (jus soli) or place of residence (in the case of naturalisation).

The Convention however, recognising developments in international human rights law and a state’s limited discretion, states that domestic law must be accepted by other states only if it is consistent with the applicable sources of international law. This provision has been clearly influenced by Article 3 (2) of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws which states “this law shall be recognised by other states in so far as it is consistent with applicable international conventions, customary international law, and the principles of law generally recognised with regard to nationality”. The limitations imposed by international law relate to the territorial and personal competence of states, and to the international protection of human rights.

Thus, the discretion of a state to determine by law who its nationals are is relative rather than absolute. Furthermore, Article 5 of the Convention concentrates on non-discrimination, one of the cornerstones of human rights. The provision is directly derived from the European Convention on Human Rights and Fundamental Freedoms (hereafter “ECHR”) (Article 14) which is derived from the Universal Declaration on Human Rights (Article 2) accordingly. The relative discretion of a state requires certain criteria to be established. In general, there could be preferential treatment which must be limited by binding human rights norms.

However, to make the criteria clear, the interpretation of human rights norms which may be clarified by international case law and by evaluations of authoritative publications of recognised experts in the field must be borne in mind. The Convention has evident links with existing human rights norms, as the preamble, for example, provides the following: “Aware of the right to respect family life as contained in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms”. Also, Articles 3, 6, 8 and 14 of the ECHR and Articles 3 and 4 of Protocol No. 4 have direct relevance in the interpretation of Convention provisions. As the Convention is also open to signature by non-member states of the Council of Europe which have participated in its elaboration, the standards of the ECHR can even be treated as customary international law. Similarly, the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, the 1989 United Nations Convention on the Rights of the Child and the 1966 Convention on the Elimination of All Forms of Racial Discrimination can be treated as customary international law. Furthermore, certain judgements of international tribunals have been considered in drafting the Convention text.

The concept of nationality (as it was stated by an explanatory report) was explored by the International Court of Justice.³ The sub-principle, that a state party may exclude non-nationals from employment in the public service only where the employment involves the exercise of sovereign power contains a phrase based on a judgement of the European Court of Justice.⁴ Also, judgements of the European Court of Human Rights and the Inter-American Court of Human Rights have significant relevance. Furthermore, some principles mentioned in the text of the Convention are widely recognised as international customary law, such as the obligation to avoid statelessness, for example. Even the right that everyone has the right to a nationality may be treated as a part of customary law by the fact that the Universal Declaration on Human Rights has become a recognised body of customary international human rights law. The precise content of legal problems has been crystallised in a new regional convention.

3. European Nationality

In accordance with regional agreements, the high contracting parties of the aforesaid Convention may give more favourable treatment to nationals of other states. For example, this could be the case in agreements between the Nordic countries and even more so in European Union agreements. So, on the basis of Article 8 (1) of the European Community Treaty (the “EC Treaty”), the citizenship of the European Union (“EU”) is conferred upon all persons possessing the nationality of one of the Member States. Article 8 (2) establishes that citizens of the EU enjoy the rights and are subject to the obligations provided for in the EC Treaty. Thus, these are additional rights and obligations conferred upon nationals of the Member States in the application of rules belonging to the legal order of the European Community and the Member States.

As explained by Mr. Kojanec,⁵ the basic legal bond of nationality between a person and a Member State as determined by the legislation of that state, confers upon the person all the rights and obligations provided for at a “supra-national” level, that is, such rights and obligations may be claimed or executed in all Member States independently of the nationality possessed. Furthermore, citizens of the EU are guaranteed in all Member States the enjoyment of their fundamental rights by the application of constitutional and other rules of these states as well as by the European Convention for the Protection of Human Rights and Fundamental Freedoms, which all Member States have ratified. The problem nevertheless is that the EU legal system is distinctive from the domestic legal systems of the Member States and, the European Community, as a separate legal entity, is not a party to the ECHR.

4. Rules and Principles

The European Convention on Nationality established certain principles in the field of nationality. The Convention deals with two primary issues: the acquisition and loss of nationality on the one hand, and the specific situation of nationality in the context of state succession on the other. The following general principles are stated in Article 4 of the Convention: everyone has the right to a nationality (from the Universal Declaration on Human Rights, Article 15 (1)); statelessness must be avoided; no one can be arbitrarily deprived of his or her nationality; and neither marriage nor the dissolution of a marriage between a national of a state party and an alien, nor the change of nationality by one of the spouses during marriage, can automatically affect the nationality of the other spouse. Articles 18 and 20 mainly contain the principles relating to the issue of state succession and nationality and can be regarded as an expression of the “new concept” of citizenship. In the process of granting nationality to a person, a state in succession should consider the following circumstances: the genuine and effective link between the person and the state; the habitual residence of the person at the time of state succession; the will of the person; and the territorial origin of the person. In addition, principles concerning non-nationals are included in the Convention.

Legal principles are different and separate from legal rules. Legal principles can play an essential part in arguments supporting a judgement about a particular legal right. According to Dworkin,⁶ the main aspect which distinguishes rules from principles is the result. Even though some principles are binding, in the sense that a judge must consider them, principles cannot determine a particular result. Only rules can dictate results. When a contrary result is reached, a rule is abandoned or changed. Principles incline a decision and survive intact when they do not prevail. In the application of principles, it is important to define the weight of different principles and optimise their application.⁷

A principle establishes an ideal which can be carried into effect to a certain degree.⁸ The higher the degree of realisation of the ideal depends on the value of the ideal. The explanatory report to the Convention remarks that the principles must apply in general cases. There are certain general principles concerning nationality on which the more detailed rules concerning the acquisition, retention, loss, recovery or certification of nationality must be based. According to the report, the words “shall be based” were chosen to indicate an obligation to regard the international principles as the basis for domestic rules on nationality.

The above approach cannot be confused with the principles of human rights law. The three recognised fundamental principles of human rights are self-determination, equality and non-discrimination.⁹ Under international human rights law, a general principle has gradually emerged which prohibits gross and large-scale violations of basic human rights and fundamental freedoms. This principle itself does not impose on states the duty to abide by specific regulations on human rights, but rather requires states to refrain from gross violations such as misbehaviour or negative duty.

Furthermore, the Convention provides in Articles 6-9 the rules relating to nationality which had to be based on the principles mentioned (acquisition of nationality; loss of nationality ex lege or at the initiative of a state party; loss of nationality at the initiative of the individual; and recovery of nationality). As an example, clause b of Article 6 (1) states: “Each state party in its internal law shall provide for its nationality to be acquired ex lege by the following persons: foundlings found in its territory who would otherwise be stateless”.

With regard to the normative value of rules, rules are a type of directive that simplify situations of choice by drawing attention to factors which the actor must consider. Rules are not situation-specific like commands, but delineate classes of events by specifying the set of circumstances in which they are applicable. Rules are not commands, but are bodies of experiential knowledge which give instructions for the norm receiver.

It is especially important in the field of international human rights standards to avoid cultural relativism and to protect universalism. Rules can be effective even in tacit form if the norm receivers have a common background. An international world, full of diversity, needs regulation with well-determined legal rules. Such norms will provide the principle of continuation which will resolve potential ambiguities in the future.¹⁰ Only explicitly formulated rules make it possible to discuss diverging expectations and to justify deviations and exceptions without calling into question the nature of the social relationship.

To explain the role of rules in practice, a model will be used which was elaborated by H. Kanger,¹¹ who formulated normative human rights provisions as “rules of right”. Kanger stated that “a rule of right is a statement of the norm “X has a right of type T versus Y with respect to a state of affairs S”.”

In conclusion, a state’s discretion with respect to the treatment of its inhabitants is also limited by a phenomenon which may be called “global citizenship”.¹² Every person has certain human rights recognised by international law, such as the right to have rights, the right to have laws and the right to participate in political life. To be recognised as a citizen on the other hand, a person also has certain obligations, such as the duty of self-reliance, the duty to participate and, most importantly, the duty to respect the rights of others.¹³

The chapter of the Convention dealing with procedures relating to nationality (Articles 10-13) is one of the most important parts of the Convention and ensures the correct application of its substantive rules, although the rules cannot be accepted generally because of the general requirements given by the Convention text. All the provisions are quite unambiguous. The duty of a contracting State is to be reasonable in its behaviour in the related field.

5. State Succession and Nationality

One purpose of the Convention was to develop an exhaustive body of normative rules with regard to the consequences of state succession on nationality (Article 18).¹⁴ The drafting process was complicated due to the divergent domestic legislative attempts of the contracting states. Thus, the final result includes only a framework of principles which allow states to formulate specific and exact rules by themselves. State succession may occur as a universal succession when a greater unitary or federal state is divided into a number of smaller states (dissolution) or when two or more smaller states unite to become a new larger state (union). Partial succession occurs when a territory is transferred from one state to another.

With regard to the Convention, the first criterion concerns the “genuine and effective link of the person with the state”. Another criterion is “the habitual residence of the person at the time of state succession” which has a direct link with the first criterion. Both of them are restrictions on the use of an arbitrary approach to the rules of nationality in general. The next aspect a contracting state must consider is “the will of the person” in so far as it is derived from the aforesaid factors. The last criterion is expressed by the phrase “the territorial origin of the person”. This factor is important when a person has no habitual residence at the time of state succession in the territory of the successor state. The Convention also includes principles concerning non-nationals. Article 20 stipulates:

“a) nationals of a predecessor State habitually resident in the territory over which sovereignty is transferred to a successor State and who have not acquired its nationality have the right to remain in that State;

b) persons referred to in clause a) enjoy equality of treatment with nationals with regard to social and economic rights.” In conclusion, according to Article 20 (2), contracting states may exclude such persons “from employment in the public sector which involves the exercise of sovereign power”.

6. The Special Case of the Baltics

In May of 1997, the European Commission for Democracy Through Law (the Venice Commission)¹⁵ organised a UniDem Seminar entitled “Nationality and State Succession” in co-operation with Division I (Division of Public Law) of the Council of Europe and with the University of Vilnius at the Constitutional Court of Lithuania in Vilnius. One of the main subjects of discussion was the new European Convention and the special case of the Baltic States with respect to the issues of state succession, state continuity and citizenship.

The three Baltic States of Estonia, Latvia and Lithuania proclaimed their independence in 1918. The development of these independent states recognised by the international community was interrupted by the Molotov-Ribbentrop Pact concluded by the totalitarian superpowers of the Soviet Union and Germany in 1939 with the aim of dividing Europe into spheres of political influence. The Pact was a clear violation of the basic principles of international law. The Soviet Union, using military force, occupied the Baltic States and illegally annexed them to the USSR. The Baltic States, existing de jure during the period of occupation, restored their independence in 1991. There are several facts verifying the continuity of these states. However, one of the posed questions in the seminar was whether the continuity of the Baltic States is absolute as there could be tacit international recognition of the illegal acts of the Soviet Union as well. The answer is no, indeed, that is, the continuity of the Baltic States is absolute. According to the principles of international law, no state can be created by such an illegal act as aggression. Both the League of Nations (Article 10) and the United Nations Charter (Articles 1 and 2) refer to this principle.

With regard to Estonian nationality legislation after restoration of independence in 1991,¹⁶ continuity is proven by:

1) the Citizenship Act (1938 and 1940);

2) the Republic of Estonia Supreme Council Resolution on Privatisation of State Enterprises (1991);

3) the Republic of Estonia Supreme Council Resolution on the Application of the Citizenship Act (1992);

4) the Republic of Estonia Supreme Council Resolution on the Application of the Citizenship Act Amendment Act (1993);

5) the Citizenship Act Amendment Act (1993); and

6) the Citizenship Act (1995).

After restoration of independence, the acquisition of nationality was made possible:

1) automatically for persons who were Estonian citizens before 16 June 1940 and their direct descendants (jus sanguinis);

2) upon application for persons whose minors lost Estonian citizenship and wish to restore it; and

3) upon naturalisation which requires inter alia permanent residence of not less than three years (five years under the 1995 Citizenship Act), knowledge of the Estonian language and an oath to the Republic.

Also, certain categories of persons are excluded from citizenship. As the Citizenship Act of 1938 provided only three such categories, the new Act provides the following six categories of persons excluded from citizenship:

1) persons who have intentionally given incorrect information when applying for Estonian citizenship;

2) persons who do not respect the Constitution or the laws of Estonia;

3) persons who have acted against Estonia and its security;

4) persons who have been convicted of a crime and sentenced to a period of imprisonment of more than one year or who have a criminal record of repeated convictions for intentional crimes;

5) persons who have been employed by the security and intelligence services of the USSR; and

6) persons who have served in foreign military forces (including those who are discharged or retired) and their spouses.

Persons who were residents before 1 July 1990 and had a Soviet Estonian passport certainly had an option as they could have applied for work and residence permits irrespective of immigration quotas. Multiple nationality is not permitted, in that, acceptance of citizenship of another state entails the loss of Estonian citizenship. Following the restoration of independence of Estonia, non-citizens totalled about 380,000. However, the Constitution guarantees these people the same fundamental rights as Estonian citizens and they have the same entitlement to social benefits. With regard to the nationality of legal persons, public enterprises under Soviet control are to be privatised according to Estonian legislation and the directors of these enterprises are obligated to terminate any transactions which could result in a change of ownership.

The continuity of the Estonian state cannot be disputed. With regard to matters of nationality, after restoration of independence, the Baltic States based their nationality legislation to a large extent on legislation which had been in force in each of the countries before 1940.