Published: 09 July 2020 Authors: Stefan Talmon and Mary Lobo
In the wake of the Euromaidan revolution in Ukraine in February 2014, the Russian Federation annexed the Crimean peninsula in March of the same year and tensions between pro-Russian groups in the Eastern Ukrainian oblasts of Donetsk and Lugansk (also spelled Luhansk) and the central government in Kiev developed into an outright armed conflict. In April 2014, these groups established the so-called “Lugansk People’s Republic” (LPR) and “Donetsk People’s Republic” (DPR) which, in May of the same year, declared their independence from Ukraine. The declarations of independence, however, were not recognised either by Germany or the international community of States more generally. On 5 September 2014, the Ukrainian Government and the pro-Russian separatists signed a 12-point Protocol in the Belorussian capital Minsk (“Minsk Protocol”) which provided, inter alia, for an immediate ceasefire and the decentralization of power in Ukraine by means of enacting a Law of Ukraine “On interim local self-government order in certain areas of the Donetsk and Lugansk regions”. The Law provided for a special status for the two regions but recognized them as an integral part of Ukraine. By January 2015, however, the Minsk Protocol ceasefire had completely collapsed and renewed heavy fighting resumed.
At the initiative of Chancellor Angela Merkel and French President François Hollande, the leaders of France, Germany, Russia and Ukraine conducted talks at Minsk on 11 and 12 February 2015 which led to a 13-point package of measures for the implementation of the Minsk Protocol (“Minsk II Agreement”). The measures included an immediate and comprehensive ceasefire monitored by the Organization of Security and Co-operation in Europe (“OSCE”), the withdrawal of heavy weapons, the conduct of local elections in the Donetsk and Lugansk regions, and the carrying out of constitutional reform in Ukraine with the adoption of a new constitution providing for decentralization and special status for certain areas of the Donetsk and Lugansk regions. The Minsk II Agreement was subsequently endorsed by the United Nations Security Council. However, by 2019 neither had constitutional reform been carried out nor had local elections been held in the separatist areas.
Against this backdrop – and with tensions in the Donbass region still high – Russian President Vladimir Putin signed the “Executive Order on Identifying Groups of Persons Entitled to a Fast-Track Procedure when Applying for Russian Citizenship on Humanitarian Grounds” on 24 April 2019. This Order facilitated the issuing of Russian passports to residents of certain districts of the Donetsk and Lugansk regions. The Kremlin press release on the signing of the Order stated:
“With a view to protecting human and citizens’ rights and freedoms, and guided by the universally recognised principles and norms of international law, in accordance with Article 29 of Federal Law No. 62-FZ of May 31, 2002 On Citizenship of the Russian Federation, the President ordered that permanent residents from certain districts of Ukraine’s Donetsk and Lugansk regions be entitled to a fast-track procedure when applying for the Russian Federation citizenship as per Part 8 of Article 14 of Federal Law No. 62-FZ of May 31, 2002 On Citizenship of the Russian Federation.
The Executive Order sets forth the procedure for submitting applications for obtaining the citizenship of the Russian Federation, contains the list of required documents and establishes the timeframe for application processing.
Instructions to this effect were issued to Russia’s Interior Ministry, Foreign Ministry, Federal Security Service, Federal National Guard Service, supreme executive authorities of Russia’s constituent entities where the Interior Ministry has territorial units vested with the corresponding authority.
The Executive Order comes into force on the day of its official publication.”
The fast-track procedure removed requirements for naturalisation found in Article 13, Part 1 of the Federal Law on Citizenship of the Russian Federation which normally required applicants to have lived for five years continuously in the territory of the Russian Federation prior to the application, have a legitimate source of livelihood, have applied to the competent authorities of a foreign State with a declaration of renunciation of their other citizenship, and to speak Russian at a certain level. The fast-track procedure, allowing the Russian President “for humanitarian purposes” to determine certain categories of foreign citizens and stateless persons who can become citizens of the Russian Federation without meeting the normal requirements, had entered into force only on 29 March 2019. The Russian President’s Executive Order of 24 April 2019 tied in with an earlier Executive Order of 18 February 2017 which recognized documents issued by the Donetsk and Lugansk People’s Republics. As part of the fast-track procedure, applicants for admission to the citizenship of the Russian Federation had to submit an “identity document” issued by the DPR and LPR authorities “with a mark of registration at the place of residence in the territory of the relevant district of the Donetsk or Lugansk region of Ukraine”.
On 29 April 2019, the fast-track procedure was extended, inter alia, to “citizens of Ukraine and stateless persons who have […] a certificate of participation in the State Programme to facilitate the voluntary resettlement of compatriots living abroad permanently residing in certain districts of the Donetsk and Lugansk regions of Ukraine as of April 7, 2014 and April 27, 2014”, and on 17 July 2019, the right to a fast-track procedure was expressly granted to all “residents of the Donetsk and Lugansk people’s republics” as well as those who previously resided in the Donetsk and Lugansk regions of Ukraine. The fast-track procedure potentially applied to an estimated 6.2 million Ukrainians living in the Donetsk and Lugansk regions. The first centre for issuing Russian passports to Lugansk residents opened in the Russian town of Novoshakhtinsk on 29 April 2019; a centre for the Donetsk region was opened in the Russian village of Pokrovskoye the next day. Ukraine expressed its strong protest against the launch of the centres in Russia’s Rostov Oblast. The first Russian passports were issued in mid-June and by mid-August more than 25,000 residents of the regions had received Russian passports. At the end of 2019, some 227,000 Russian passports had been issued to Ukrainian citizens living in the DPR and the LPR.
The German Federal Government immediately condemned the Russian President’s Executive Order of 24 April 2019 providing for a fast-track procedure to give Russian citizenship to residents of Ukraine’s Donetsk and Lugansk regions. On 25 April 2019, the Federal Foreign Office Spokesperson issued the following statement:
“Together with our French partners in the Normandy format, the Federal Government condemns the publication of a Russian decree aiming to make it easier for citizens resident in the Ukrainian oblasts of Luhansk and Donetsk to gain Russian citizenship.
These regions, just like the entire Donbass, are part of Ukrainian territory. Making it easier for the Ukrainian citizens living there to acquire Russian citizenship runs contrary to the aims and spirit of the Minsk agreements. It is the opposite of the contribution to de-escalation so urgently needed at this time.”
On the same day, the deputy government spokesperson tweeted that the “planned issuance of Russian passports to residents of separatist regions in the Donbass by Russia is a clear violation of the spirit and aims of the Minsk agreements.” Germany also issued a statement together with seven other EU Member States at the United Nations in New York which read:
“We as Member States of the European Union fully support the independence, sovereignty and territorial integrity of Ukraine within its internationally recognized borders.
The signature by the Russian President of a decree entitling, inter alia, people who permanently reside in certain areas of Ukraine’s Donetsk and Luhansk regions to apply for Russian citizenship in a simplified manner undermines Ukraine’s sovereignty.
These regions, just like the entire Donbass, are an integral part of Ukrainian territory. Making it easier for the Ukrainian citizens living there to acquire Russian citizenship runs contrary to the aims and spirit of the Minsk agreements.
The timing of such a decision immediately after Ukraine’s Presidential election, which demonstrated Ukraine’s strong attachment to democracy and the rule of law, shows Russia’s intention to further destabilise Ukraine and to exacerbate the conflict.
We expect Russia to refrain from any such actions that jeopardize the implementation of the Minsk agreements and that impede the full restoration of Ukrainian government control over those areas as prescribed in the agreements. Russia must in particular end its financial and military support to the separatists.
We call on all parties to fully implement their commitments under the Minsk agreements, beginning with a comprehensive, strong and lasting ceasefire and withdrawal of heavy weaponry, and to engage constructively in the Normandy format and the Trilateral contact group. We insist that the Security Council must remain seized of the matter, as these violations of international law are a global concern.”
During a Security Council meeting on 25 April 2019, Germany also aligned itself with, and fully subscribed to, a French statement that the “decision to facilitate the granting of Russian passports to Ukrainian citizens is a flagrant violation of Ukraine’s sovereignty”. It also claimed that by the Executive Order of 24 April 2019, Russia had “demonstrated its disdain for the international rules-based order.” This was echoed on 17 May 2019, when the State Secretary of the Federal Foreign Office, Antje Leendertse, stated in response to a parliamentary question that the granting of Russian citizenship to the Ukrainian citizens living in the Donetsk and Lugansk regions contradicted “the spirit and aims of the Minsk agreements” and represented “a blatant violation of the sovereignty of Ukraine.” She continued: “Whether in exceptional cases identification documents issued on the basis of these executive orders of the Russian Federation may be recognized can only be assessed in the context of the examination of individual cases.”
The Federal Foreign Office, however, was not too keen to provide a clear assessment of the Russian President’s Executive Order in terms of international law. Asked whether the Executive Order was “illegal” in terms of international law or contravened only the “spirit” of the Minsk agreement, the spokesperson for the Federal Foreign Office stated during the regular government press conference on 26 April 2019:
“I do not want to weigh in on the details of the legal evaluation [of the Executive Order]. This much is clear, though: the purpose of the Minsk agreement is the complete reinstatement of Ukrainian sovereignty over the Donetsk and Lugansk regions. The Order goes against this aim […] Five years ago, Russia annexed the Crimea – that is, Ukrainian territory – in contravention of international law, and it supports separatist movements in the Donetsk and Lugansk regions. And the classification of this step must also be seen in light of this context.”
In September 2019, the question of Russian citizenship for persons residing in Ukraine’s Donetsk and Lugansk regions resurfaced when questions were raised as to whether and, if so, how many Schengen or national German visas had been issued to persons travelling with passports issued under the Russian President’s Executive Order of 24 April 2019. On 6 September 2019, the State Secretary of the Federal Foreign Office, Antje Leendertse, stated in response to a written parliamentary question:
“The Federal Government, together with their partners in the EU, have clearly condemned the relevant Russian executive orders and their objectives […] the considerably simplified granting of Russian citizenship to Ukrainian citizens living in the Luhansk and Donetsk regions goes against the spirit and aims of the Minsk agreements and constitutes a violation of the sovereignty of Ukraine. Discussions are currently taking place between the EU States regarding the treatment of Russian passports issued as a result of the Russian presidential executive orders of 24 and 29 April, as well as the expansion of their scope of application on 17 July 2019.”
On 24 September 2019, the German tabloid newspaper Bild asked: “Why does Germany accept the Putin passports from eastern Ukraine?” The article claimed that Germany did not distinguish between regular Russian passports and those issued to residents in Ukraine’s Donetsk and Lugansk regions since April. It was unclear how many visas had been affixed into these Russian passports. Asked about this report, the spokesperson for the Federal Foreign Office stated on 25 September 2019:
“Let me reiterate what we have said here before – namely, that we condemn the executive orders of the President of the Russian Federation providing for a fast-track approach to Russian citizenship for residents of the Lugansk and Donetsk regions. These orders go against the spirit and aims of the Minsk agreements and violate the sovereignty of Ukraine.
Statements that the Federal Government does not distinguish between Russian passports and those from the Lugansk and Donetsk regions are not correct. The Federal Government is not aware of a single case in which a visa would have been affixed to a passport issued on the basis of these executive orders. I would add that in this case there is probably little incentive for the residents of Lugansk and Donetsk, because Ukrainian residents from these regions can apply for a Ukrainian passport which allows them to travel to Germany without a visa.
We assume that we can recognize what these passports look like. I would not like to provide any further information, so that it stays that way. […] We are not aware of any applications that a visa be affixed to these passports, and no visa would be affixed to them.”
The Federal Government’s position was in line with the position adopted by the European Union which had stated on several occasions that it stood ready to “consider further options, including non-recognition of Russian passports issued in contradiction to the Minsk agreements, in close coordination with its international partners.”
In October 2019, it was reported that the Federal Foreign Ministry had instructed German consulates not to recognize Russian passports issued to Ukrainian citizens in the Donbas region. In addition, residents of the Donetsk and Lugansk regions had to lodge their visa application with the German embassy in Kiev. Visa applications by these persons in the Russian Federation were not possible. After the declaration of independence of the DPR and the LPR, the German Consulate General in Donetsk had been closed and its office had “temporarily” been moved to the city of Dnipro, in the Ukrainian Government-controlled area, on 12 January 2015.
The Russian practice of “passportisation” – the granting of citizenship of the Russian Federation to residents of eastern Ukraine – raises several issues. First, it must be considered whether the practice is in conformity with international law. While the Russian President claimed that he was “guided by the universally recognised principles and norms of international law” when issuing the Executive Order of 24 April 2019, Germany, together with seven other EU member States, considered the Executive Order and other actions by Russia in eastern Ukraine as “violations of international law” of “a global concern.” Citizenship or, better, nationality, as a concept of international law, has been defined by the International Court of Justice (ICJ) as,
“a legal bond having as its basis a social fact of attachment, a genuine connection of existence and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute a juridical expression of the fact that the individual upon whom it is conferred, either directly by law or as a result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.”
According to the ICJ, “it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalisation granted by its own organs in accordance with that legislation.” But, to the extent that the effects of the act of naturalisation occur on the international plane, it is international law that determines whether the act has international effect.
International law distinguishes between individual and collective naturalisation. Individual naturalisation is the conferral of nationality upon a person’s application. Collective naturalisation, on the other hand, is the conferral of nationality to a group of persons by operation of a national law, ipso jure, upon the fulfilment of certain prescribed conditions without individual application by the members of the group. Unlike in the case of Crimea, Russia did not pursue a policy of either de jure or de facto collective naturalisation in the regions of Donetsk and Lugansk. It has long been accepted that for an individualised naturalisation to be valid under international law it requires the free and informed consent of the person concerned. The naturalisations of the residents of the Donetsk and Lugansk regions of Ukraine would by invalid only if their consent had been secured by pressure, threat, or force. International law also requires a factual connection between the person to be naturalised and the naturalising State’s territory or its nationals. However, outside the context of diplomatic protection or resolving questions of dual nationality, the factual connection need not be particularly tight. Neither of these requirements seem to create an insurmountable obstacle to the individual granting of Russian citizenship to residents of the relevant regions in eastern Ukraine who apply for naturalisation.
According to Article 15 of the Universal Declaration of Human Rights, no one shall be denied the right to change his nationality. Ukrainian residents of the Donetsk and Lugansk regions are thus generally free to opt for Russian nationality. There is, however, no absolute, unlimited, individual (human) right to change one’s nationality. A naturalisation does not only concern the individual, but also the original State of nationality of the naturalised person. The right of individuals to change their nationality must be balanced against the legitimate rights and interests of their former State of nationality.
By the act of naturalisation, the conferring State necessarily interferes with the sovereignty of the original State of nationality. States are constituted by their nationals. By naturalising citizens of another State on a large scale, the naturalising State erodes one of the constituent elements of sovereign statehood – population. One emanation of statehood is the State’s personal jurisdiction over its citizens. Naturalisation undermines that personal jurisdiction and forecloses the right to exercise diplomatic protection. In addition, extra-territorial mass naturalisation undermines the State’s territorial sovereignty. By conferring its nationality on persons residing in the territory of another State, the naturalising State decides on the composition of the population in that State; in other words, it imposes its own nationals upon the other State without the latter’s consent. In the same vein, just as an occupying power is not allowed to transfer parts of its own civilian population into the territory it occupies, the occupying power cannot validly make the citizens of the occupied territory its own citizenship while the occupation is still ongoing. In such a situation, it does not make a difference of whether the persons in the occupied territory “voluntarily” opt for the citizenship of the occupier or not. The same must be true for the citizens of a State under the control of separatists backed by the nationalising State. The large-scale naturalisation of Ukrainian citizens thus undermined the personal and territorial jurisdiction of Ukraine, and to that extent violated Ukrainian sovereignty; especially if one considers the Russian practice of passportisation in the wider context of Russian aggression against Ukraine. As the ICJ pointed out: “In order to appraise its [a naturalisation’s] international effect, it is impossible to disregard the circumstances in which it was conferred”. The mass-conferral of Russian citizenship on persons residing in Ukraine could be seen as a significant component of Russia’s policy of creeping de facto annexation of parts of eastern Ukraine and could also serve as a pretext for Russian military intervention in the country. Germany was thus correct in labelling the Russian passportisation policy “a blatant violation of the sovereignty of Ukraine” and, accordingly, a violation of international law. It consequently treated the nationalisation of Ukrainian citizens residing in the Donetsk and Lugansk regions of Ukraine as not having any legally consequences with regard to Germany. In response to a parliamentary question the Federal Government declared its view that “the issuing of Russian passports does not entail the acquisition of Russian citizenship.”
The Federal Government also claimed that Russia’s passportisation policy ran “contrary to the aims and spirit of the Minsk agreements.” This was a very vague claim and seemed to be aimed more at criticising the politics of Russia’s foreign policy than accusing the Russian Government of a separate violation of international law. A breach of the Minsk agreements – either of their wording or their aims and spirit – could not constitute a violation of international law for the simple reason that these “agreements” were not international treaties legally binding upon Russia but political understandings, involving Russia, Ukraine and the leaders of the pro-Russian separatists. Nevertheless, this was not an unfounded claim. The agreements were aimed at the stabilisation of the situation in eastern Ukraine and the reintegration of the separatist regions in a way acceptable to both the Government in Kiev and the de facto authorities in Donetsk and Lugansk; or, as the Federal Government termed it, “the complete reinstatement of Ukrainian sovereignty”. Large-scale naturalisations of residents which embedded Russian control in the Donbass certainly went against this aim.
The active passportisation of Ukrainian citizens in the Donbass region must be viewed in the context of Russia’s wider foreign policy in its “near abroad”; that is the independent republics that emerged after the dissolution of the Soviet Union. This policy includes its annexation of Crimea, but also passportisation in the Georgian regions of Abkhazia and South Ossetia and the Moldovan region of Transnistria. The practice of passportisation in these cases does not constitute an abuse of rights by Russia. The concept of abuse of right is based on the assumption that there is a right to be abused that in the circumstances of the case was improperly exercised. However, Russia does not have the right to large-scale naturalisations in violation of the sovereignty of Ukraine or any other of the former Soviet republics. In any case, the doctrine of abuse of rights could not be relied upon by Germany against Russia as a justification for not recognizing Russian passports issued to the residents of eastern Ukraine. The doctrine of abuse of right cannot be invoked by one State against another unless the State which is admittedly exercising its rights under international law causes damage to the State invoking the doctrine. Russia’s passportisation policy, however, does not cause any damage to Germany.
Category: Territorial sovereignty