Original to La Russophobe, the noted Russia scholar Professor Ethan Burger of Georgetown University Law Center and American University offers the following analysis of the Georgia apocalypse.
Note that LR has previously published other work by Professor Burger, click the “Burger” link in the categories section of our sidebar to peruse it. Professor Burger’s legal expertise makes him uniquely well positioned to explain the legality (or lack thereof) of what Russia is doing in Georgia and its worldwide consequences.
LA RUSSOPHOBE: Welcome Professor Burger, and thanks for taking time out of your busy schedule to talk about Georgia with us. It’s being reported that Russia is attempting to issue passports to Ukrainians in Crimea. Do you see a parallel, as some have suggested, between that action and Russia’s similar behavior in Ossetia? In your view, does this action violate international law? Does the U.S., for instance, have the right to issue passports in Chechnya?
PROFESSOR BURGER: If this were the case it would be most unfortunate and potentially explosive, I see the situations as similar but not identical. Perhaps, Russia’s recent actions can best be understood within the context of the situation with Kosovo, when Russia was only able to sit on the sidelines and complain about NATO’s actions.
As a preliminary matter it is important to distinguish between the concept of citizenship — which is determined by a state usually pursuant to a law and nationality — which typically is a matter of self-identification. On occasion, states have issued passports to persons that are not their citizens (or nationals). While there may be a variety of reasons why this is done, typically states issuing passports to foreign citizens or stateless persons do so on humanitarian grounds.
In some situations, the recipients of the passports wish to become citizens of the states issuing the passports (usually they must comply with a formal administrative process) or take of residence in such states (again usually involving complying with the requirements of an administrative process); in other instances, the persons receiving the passports desire to leave the countries they are in and seek refuge in third countries.
Customary international law on the subject of citizenship requires one to look at the relevant laws of the countries involved. In the present example, it would make sense to look to the laws of Ukraine and Russia. The Organization for Security and Cooperation in Europe (OSCE) provides on the Internet many laws of its member states and for the purposes of consistency of the translations; I will rely on such information. The Law on Ukrainian Citizenship was adopted in 2001. Article 1 of this Law provides some important definitions including:
- citizen of Ukraine: a person granted Ukrainian citizenship in keeping with procedures established by the laws of Ukraine and international agreements to which Ukraine is a party;
- foreigner: a person that does not have Ukrainian citizenship and is a citizen (subject) of a different country or countries; and
- stateless person: a person not considered by any country as that country’s citizen under that country’s legislation[.]
The first paragraph of the aforementioned law provides that “(1) single citizenship, namely Ukrainian citizenship, ruling out the possibility of citizenship of political subdivisions of the territory of Ukraine; if a citizen of Ukraine becomes a citizen of any other country or countries, the Ukrainian law shall recognise that citizens only as a Ukrainian subject; if a foreign citizen receives Ukrainian citizen, the Ukrainian law shall recognise that citizen as a Ukrainian subject[.]“
Consequently, if persons holding Ukrainian citizenship were to obtain Russian citizenship, their Ukrainian citizenship would be a nullity and they could be deported in accordance with Ukrainian law.
In contrast, Russia permits dual citizenship. FEDERAL LAW NO. 62-FZ OF MAY 31, 2002, “On Russian Federation Citizenship,” as amended), contains two articles that relate to the acquisition of Russian citizenship. I reproduce the full text of these articles below so to make clear that I am not quoting something out of context:
Article 13. Admission into Russian Federation Citizenship on General Terms
1. Foreign citizens and stateless persons who have reached the age of 18 and have dispositive capacity are entitled to file a naturalisation application asking for Russian Federation citizenship on general terms on the condition that the said citizens and persons:
a) have been residing in the territory of the Russian Federation since the day when they received a residence permit and to the day when they file a naturalisation application asking for Russian Federation citizenship for five years without a break, except for the cases specified in Part 2 of the present article. The duration of residence in the territory of the Russian Federation shall be deemed without a break if the person left the Russian Federation for a term not exceeding three months in one year. The term of residence in the territory of the Russian Federation for the persons who had arrived to the Russian Federation prior to July 1, 2002 and do not have residence permits, shall be estimated, as of the date of their registration at the place of residence;
b) undertake to observe the Constitution of the Russian Federation and the legislation of the Russian Federation;
c) have a legal source of means of subsistence;
d) have filed applications with the competent body of the foreign state whereby they waived their other citizenship. No waiver of foreign citizenship is required if this is envisaged by an international treaty of the Russian Federation or the present Federal Law or if the waiver of another citizenship is impossible due to reasons beyond the person’s control;
e) are in command of the Russian language; the procedure for assessing the level of knowledge of the Russian language shall be established by regulations on the procedure for considering issues concerning Russian Federation citizenship.
On the Organisation of State Testing in the Russian Language, Which Is Foreign to Foreign Nationals and Stateless Persons, for the Admission to the Citizenship of the Russian Federation, see Order of the Ministry of Education of the Russian Federation No. 2606 of June 20, 2003
See the List of Educational Organisations (Institutions) Conducting the State Testing of Russian as a Foreign Language of Foreign Nationals and Stateless Persons for Admitting them to Citizenship of the Russian Federation, endorsed by Order of the Ministry of Public Education of the Russian Federation No. 735 of February 18, 2004
2. The duration of stay in the territory of the Russian Federation established by Item “a” of Part 1 of the present article is reduced to one year if any of the below grounds exist:
a) the person has high achievements in the field of science, technology and culture; the person has a profession or qualification of interest for the Russian Federation;
b) the person has been granted asylum in the territory of the Russian Federation;
c) the person has been recognised as a refugee in the manner established by a federal law.
3. A person having special merits before the Russian Federation may be admitted to Russian Federation citizenship without the need for observing the conditions stipulated in Part 1 of the present article.
4. Citizens of the states, which have formed part of the USSR, serving at least three years in the Armed Forces of the Russian Federation and in other forces, military units or bodies on a contractual basis, shall be entitled to apply for admittance into the Russian Federation citizenship without observing the terms provided for by Item “a” of Part One of this Article and without presenting the residence permit.
Federal Law No. 151-FZ of November 11, 2003 reworded Article 14 of this Federal Law. The amendments shall enter into force on the expiry of one month as of the date of the official publication of the said Federal Law
Consequently Article 13 envisions that applicants for Russian citizenship be on the territory of the Russian Federation and comply with applicable administrative requirements and under certain circumstances renounce their prior citizenship. I doubt this has occurred in Crimea.
Article 14 is the other provision of Russian law of principal importance to your question.
Article 14. Admittance into the Russian Federation Citizenship in a Simplified Manner
1. Foreign citizens and stateless persons who have reached the age of 18 and who have dispositive capacity are entitled to file naturalisation applications asking for Russian citizenship, in a simplified manner without observing the conditions set out in Item “a” of Part One of Article 13 of this Federal Law, if the said citizens and persons:
a) have at least one parent who is a Russian citizen and resides on Russian Federation territory;
b) have had USSR citizenship, and having resided and residing in the states that have formed part of the USSR, have not become citizens of these states and as a result remain stateless persons;
c) are citizens of the states which have formed part of the USSR, have received secondary vocational or higher vocational education at educational institutions of the Russian Federation after July 1, 2002.
2. Foreign citizens and stateless persons residing on the territory of the Russian Federation shall be entitled to apply for admittance to Russian citizenship in a simplified manner without observing the condition concerning the time of residence established by Item “a” of Part One of Article 13 of this Federal Law, if the said citizens and persons:
a) have been born on the territory of the RSFSR and have been citizens of the former USSR;
b) have been married to a citizen of the Russian Federation within at least three years;
c) are disabled persons and have a capable son or daughter who has reached the age of eighteen years and is a citizen of the Russian Federation.
3. Disabled foreign citizens and stateless persons who have come to the Russian Federation from the states which have formed part of the USSR, and are registered at the place of residence in the Russian Federation, as on July 1, 2002, shall be entitled to file an application for admittance to the Russian citizenship in the simplified manner without observing the condition concerning the term of residence on the territory of the Russian Federation established by Item “a” of Part One of Article 13 of this Federal Law and without submitting the residence permit.
4. Foreign citizens and stateless persons who have been citizens of the USSR who have come to the Russian Federation from the states which formed part of the USSR, who are registered at the place of residence in the Russian Federation as on July 1, 2002, or have received a permit for temporary residence in the Russian Federation shall be admitted to citizenship of the Russian Federation in the simplified manner without observing the conditions provided for by Items “a”, “c” and “e” of Part One of Article 13 of this Federal Law and without presenting a residence permit if they, prior to January 1, 2006, declare their wish to become citizens of the Russian Federation.
5. Veterans of the Great Patriotic War who have been citizens of the former USSR and reside on the territory of the Russian Federation shall be admitted to Russian Federation citizenship in the simplified manner without observing the conditions provided for by Items “a”, “c”, “d” and “e” of Part One of Article 13 of this Federal Law and without presenting a residence permit.
6. There shall be admitted to citizenship of the Russian Federation in the simplified manner without observing the conditions provided for by Part One of Article 13 of this Federal Law children and disabled persons who are foreign citizens or stateless persons:
a) a child one of whose parents is a citizen of the Russian Federation – on the application of this parent and in the presence of the other parent’s consent to the child’s becoming a citizen of the Russian Federation. Such consent shall not be required if the child resides on the territory of the Russian Federation;
b) the child whose only parent is a citizen of the Russian Federation – on the application of this parent;
c) children or disabled persons who are in custody or guardianship – on the application of the custodian or guardian who are citizens of the Russian Federation.
In the scenario you posed, in the vast majority of cases under Article 14, it would seem that Ukrainian citizens residing in Crimea would not qualify for Russian citizenship (with certain exceptions). Thus with the exception of intervening (entering the territory of another state), this would be permissible under international law only for humanitarian purposes such as preventing crimes against humanity (including genocide), which certainly is not occurring in Crimea.
The situation in Ossetia is more complex as arguably there were acts of violence being committed against ethnic Ossetians in Georgia. That being said, the Russians acted unilaterally in a military fashion and their military operations were far more extensive than that necessary to carry out their alleged mission. Furthermore, I would like to point out two facts: (i) the Russians did not seem to seek the assistance of the OSCE, the U.N., the Council of Europe prior to intervening, and (ii) the forces the Russians used to enter Georgia could only have been ready for operations only after a period of extensive preparations, which suggests that the Russian leadership was merely looking for a pretext to invade (and perhaps dismember Georgia), which unfortunately Georgian President Mikheil Saakashvili provided.
Such actions would not seem consistent with international law, including numerous documents to which Russia is a party. Under the Russian Constitution, international law has superior force to Russian enacted law. Some analysts have suggested that the Russians by deploying their forces in Georgia may have even violated its own laws.
I would pray that the U.S. and other countries do not give out passports to ethnic Chechens living in Chechnya or the Russian Federation en masse. The situation in Chechnya today is very different from the beginning of this century. The Russians seem for the moment to have successfully “pacified” the Chechens through force. I would not want to create a situation that would lead to further death and destruction in Chechnya.
LA RUSSOPHOBE: Do you think there was anything the EU or NATO could have done just before the crisis to stop the Russian tanks from rolling into Georgia? Was the ball dropped somewhere? If so, by whom?
PROFESSOR BURGER: If there were steps to be taken, the West should have warned Georgian President Saakashvili that reasserting control in South Ossetia could have grave consequences. At the same time, while it is doubtful the Russians were not going to act, the West might have made clear what it considered to be “tolerable limits.” These are activities that should have been made at the highest levels of government.
LA RUSSOPHOBE: You call for a rapid expansion in the delivery of information to Russians by the West. Should we use existing institutions like VOA and RFE/RL or create new ones?
PROFESSOR BURGER: We are not in a new “Cold War” where ideology plays a role and military strength plays a prominent role. The Russian political leadership is not accountable to the Russian people in any major respect. The Russian government controls Russian television, harasses “unfriendly” journalists, etc. Thus, the Russian people have a very distorted view of their government’s policies and world reaction. This must be counter-acted. This involves using a variety of media: radio, satellite television, the Internet, etc. The cost of making an effective public information system work is minute compared with the cost of military defense systems. It is important that information be transmitted not only in Russian, but in the languages of the country’s national minorities. Unfortunately, this takes time but will eventually will have an impact on Russian public opinion and limit the freedom of the Russian government to act as it pleases.
There is no need to create new institutions — so long as they are restructured to reflect current realities and recruit the necessary talent.
LA RUSSOPHOBE: What about the vulnerability created by the EU’s dependence on Russian oil and natural gas?
PROFESSOR BURGER: Russia’s economic strength depends on its ability to sell natural resources. In the near term efforts at conservation should be increased. In the longer term, a Manhattan-like project needs to be initiated in the area of alternative sources of energy. Russia enacted a law limiting foreign investment in certain sectors. The West should adopt identical restrictions and transactions with enterprises in such sectors should be closely scrutinized and prohibited if necessary.
The Russian political elite (and its favorites) control the vast majority of Russian natural resources. These entities are usually opaque. Many of these companies are involved in sham transactions. A huge amount of the wealth of Russian is being sent off-sure to buy Western assets (companies, real estate, etc.). If such funds arise from corruption, they may be deemed to be laundered funds which may be seizable under many countries anti-money laundering rules.
There is a lot of discussion of the new nature of the Russian threat. That threat is primarily economic. The West must ensure that its anti-trust, banking and export control laws are strictly enforced. In a sense, the Russian political elite operate like an organized crime group. Western policy makers should react accordingly.
LA RUSSOPHOBE: What are your thoughts going forward?
PROFESSOR BURGER: Russia has been short-sighted by intervening militarily in Ossetia/Georgia and not understanding the consequences of its actions. It is forfeiting any claim to be a country that is observant of international law. If the Ossetians have a claim to self-determination leading to independence, perhaps the same should be said of Chechnya. Chechnya never signed the Federation Treaty nor does anyone claim seriously that the Chechens ratified the 1993 Constitution. If being a member of an ethnic group concentrated in a given area can give rise to a claim for autonomy or independence, how would this be applied to the Karelians, who are after all ethnic Finns living in territory taken by the USSR in the early 1940s. Since Russia is a multi-national state, it may be releasing forces that cannot be contained. Forces of changes come slowly, but I have read a lot about the Austro-Hungarian Empire, Ottoman Empire, and the Polish-Lithuanian Commonwealth. Demographics is destiny and nationalism (as opposed to the rule of law) is a two-edged sword.
LA RUSSOPHOBE: Thanks for your time, you’ve shed much light on some complicated questions.