Re[2]: FM Alert, Vol. II, No. 1
Date: Fri, 16 Jan 98 11:40:10 -0500
From: MINELRES moderator <[email protected]>
Message-Id: <[email protected]>
To: "[email protected]" <[email protected]>
Subject: Re[2]: FM Alert, Vol. II, No. 1
From: MINELRES moderator <[email protected]>
Ooriginal sender: Francoise Girard <[email protected]>
Re[2]: FM Alert, Vol. II, No. 1
Dear Boris:
I agree with you. Indeed, granting citizenship to children born in Estonia
and Latvia today seems fairly basic. This is the position Alex Grigorievs
and I took in a paper we wrote last year on this subject:
"E. Latvia's obligations under the Convention on the Reduction of
Statelessness
Latvia acceded to the Convention on the Reduction of Statelessness on 14
April 1992, but it is not a party to the Convention relating to the Status
of Stateless Persons. Estonia has adhered to neither.
Pursuant to the Convention on the Reduction of Statelessness, it can be
argued that a stateless person has a right to the citizenship of the country
of his or her birth. Hence, Article 1 of the Convention on the Reduction of
Statelessness provides for the right of persons born on the territory of a
state to citizenship of that state if they would otherwise be stateless.
This right is to be granted at birth by operation of law, or upon
application lodged with the appropriate authorities. Article 1 further
provides that subject to the provisions of its paragraph 2, no such
application may be rejected.
Paragraph 2 of Article 1 allows a state to make the grant of its nationality
upon application subject to one or more of the following conditions:
1) a state may require that the application be lodged during a defined
period; but a state cannot force the applicant to wait to apply past the
time when the applicant turns 18, and cannot end this period earlier than
when the person turns 21; 2) a state may require that the applicant have
habitually resided on its territory for a period which may not exceed five
years immediately preceding the lodging of the application or ten years in
all; 3) a state may
require that the applicant not have been convicted of an offense against
national security nor sentenced to imprisonment of five years or more on a
criminal charge; and 4) a state may require that the applicant have always
been stateless.
The Convention on the Reduction of Statelessness clearly lays down the
principle that the conditions of access to citizenship for stateless persons
cannot be onerous. After a moderate residency period and provided they are
law-abiding individuals, stateless residents should normally be granted
citizenship. The prevailing rationale behind this treaty is simple: since
statelessness is an undesirable phenomenon, states should develop and
implement their citizenship laws in a manner that reduces statelessness.
The Latvian Law on Citizenship appears to fall off that mark. For example,
it provides at Article 14 for naturalization of its non-citizen population
by application. Applications are to be reviewed by age group. Starting on
January 1, 1996, the applications of persons who were born in Latvia and
were 16 to 20 years old on the date of submission of their application will
be reviewed; then, starting on January 1, 1997, the applications of those
persons who were born in Latvia and who were up to 25 years old on the date
of submission of their application will be reviewed. Persons born in
Latvia and who were older than 40 on the date of submission of their
application will have to wait until January 1, 2000 for their application to
be reviewed. This means that a non-citizen born in Latvia, who speaks good
Latvian and is otherwise well-adapted, but has the misfortune of being more
than 40 years old, will not, in the best case, obtain Latvian citizenship
before the turn of the century.
Further, Article 12 of the Law sets out a number of conditions for
naturalization, including having "a command of the Latvian language" (Art.
12 (1) 2); knowing the basic principles of the Constitution of the Republic
of Latvia, and of the Law on the Rights and Obligations of a Citizen and a
Person (Art. 12(1)3); knowing the national anthem and the history of Latvia
(Art. 12 (1) 4), and having a "legal source of income" (Art. 12 (1) 5).
........
In cases of statelessness of persons born in Latvia, therefore, the
conditions for naturalization set out in the Latvian Law on Citizenship
obviously exceed what may be required according to the provisions of Article
1, paragraph 2 of the Convention on the Reduction of Statelessness.
The provisions of the Latvian Law on Citizenship caused the United Nations
Human Rights Committee, in its July 1995 comments on Latvia's performance of
its obligations pursuant to the International Covenant on Civil and
Political Rights, to express concern over the fact that "a significant
segment of the population will not enjoy Latvian citizenship due to the
stringent criteria established by the law, and the policy deliberately
chosen to consider each case on an individual basis and pursuant to a
timetable calculated to delay the naturalization process for many years..."
The 1993 UNHCR report on "Nationality Laws in former USSR Republics"
concludes that, pursuant to the Convention on the Reduction of Statelessness
, Latvia must grant its citizenship to those stateless residents born on its
territory: On April 1992, Latvia acceded to the Convention on the Reduction
of Statelessness of 1961. According to Art. 1 of the Convention, Latvia
"shall grant its nationality to a person born in its territory who would
otherwise be stateless". Nationality shall be granted at birth by operation
of law, or upon an application which may not be rejected. Thus, children of
stateless persons, including Russians and other immigrants, who did not
acquire any nationality, have a right to be granted Latvian nationality. The
obligation to confer nationality includes people born on the territory of
Latvia before the day of accession, provided they fulfill the age and
residence requirement that a state may set up. On the basis of this
provision, a considerable part of permanent residents, and in particular the
younger generation, has a right to become Latvian nationals.
Unfortunately, even though it would appear that its refusal to recognize the
stateless status of its non-citizen residents puts Latvia in breach of the
Convention on the Reduction of Statelessness, few legal consequences are
likely to ensue from this stance since the Convention lacks implementation
and enforcement mechanisms.
That is unfortunate, for if Latvia conformed only to its obligations under
Article 1, paragraphs 1 and 2 of the Convention on the Reduction of
Statelessness, and granted citizenship to those stateless persons born in
Latvia, that gesture would go a long way towards resolving the problem at
hand. In Latvia alone, about a third of the non-citizen community was born
in the country (and children born today in Latvia whose parents are both non
-citizens are also non-citizens).
F. Estonia and statelessness
Estonia's first post-independence Law on Citizenship (the 1938 Law on
Citizenship, in the version valid on 16 June 1940, re-enacted and modified
by a Decree of the Supreme Soviet of the Estonian Republic on 26 February
1992), set out various conditions for naturalization, including a waiting
period of three years - that is, two years residency and a waiting period
of one year after filing the application (Article 6(2) of the Law),
knowledge of the Estonian language (Art. 6 (3) of the Law), and a regular
legal source of income (Art. 15 of the Decree). The 1995 Law on
Citizenship has maintained these requirements, but extended the required
residency to five years (Art. 6 (2) of the 1995 Law). According to the first
post-independence Estonian Law on Citizenship, stateless persons had to
reside in Estonia for ten years before they become eligible for citizenship
(Art. 7(3) of the 1938 Law on Citizenship, as re-enacted in 1992). This
provision has been removed from the 1995 Law.
By contrast to the Latvian language requirements, the Estonian requirements
for knowledge of the Estonian language have consistently appeared less
stringent, and given more guidance as to what level of proficiency is
expected.
.............
It is worth noting that, in a letter to the Estonian government dated 6
April 1993, the High Commissioner for National Minorities of the OSCE, Max
van der Stoel, ... invoked a number of international legal instruments to
urge Estonia to reduce statelessness:
2) Taking into account Article 15 of the Universal Declaration of Human
Rights, it is recommended that Estonia proceed to reduce the number of
stateless persons permanently residing on its territory. To this end, the
High Commissioner recommended the following:
3) Children born in Estonia who would otherwise become stateless should be
granted Estonian citizenship, taking also into account Article 3, paragraph
6, of the Estonian Citizenship Act, Article 24, paragraph 3, of the
International Covenant on Civil and Political Rights, and Article 7,
paragraph 2, of the Convention on the Rights of the Child.
These recommendations were repeated, almost verbatim, in a similar letter
dated April 6, 1993, and sent to Georgs Andrejevs, the Minister for Foreign
Affairs of Latvia.
In our view, the overarching goal of reducing statelessness should be kept
in mind by both Latvia and Estonia in the development and the implementation
of their citizenship policies. Thus, while Estonia is not a party to the
conventions on statelessness, it could also consider the principles outlined
in these treaties as guidelines for integration of its stateless population.
In addition, Articles 4bis and 5(4) of the 1995
Draft European Convention on Nationality and Military Obligations in Cases
of Multiple Nationality could serve as a source of inspiration to both
countries:
4bis The internal law of each State Party to this Convention shall be
based on the following general principles:
1 everyone has the right to a nationality;
2 statelessness should be avoided;
(...)
5 Each State Party shall provide in its internal law for its nationality to
be acquired by the following persons under more favourable conditions than
those generally required:
(...)
e persons who were born on its territory and reside there lawfully and
habitually;
f persons who have been lawfully and habitually resident in its territory
for a period of time beginning before the age of 18 as determined by the
internal law of the State Party concerned;
g stateless persons and recognized refugees lawfully and habitually
resident on its territory."
--
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