Putin extends the grant of Russian nationality to Ukrainians: a legal and political analysis
Since 2014, Russia and Ukraine have been involved in a military conflict that has led to more than 13,000 deathly casualties. Against that backdrop, two important events coincided in Ukraine in late April. First, Volodymyr Zelensky was elected as president of Ukraine on 21 April after beating incumbent president Petro Poroshenko by a landslide. A few days later, Russian president Vladimir Putin promulgated an executive order on the citizenship status of residents of the Ukrainian Donetsk and Lugansk region. Furthermore, he announced that Russia was considering extending a scheme that allows Ukrainians from the eastern part of the country to obtain Russian citizenship within less than three months to the whole of Ukraine. The US State Department has called the Russian citizenship proposal a “provocative action and an assault on Ukraine’s sovereignty”, and commentaries have argued that “the move is widely seen as a test of the new leader, who the Kremlin hopes will take a softer stance on the frozen conflict”.
While numerous media outlets have reported that the decree allowed the grant of “Russian passports” to inhabitants of these regions, a closer analysis reveals that the executive order does not see on the grant of Russian travel documents, but on the grant of Russian nationality. In this article, we will discuss how this new measure is structured. Next to that, its potentially far-reaching consequences as well as its legality under international law will be critically assessed.
The executive order: how can Russian nationality be acquired?
In principle, persons who wish to naturalize in Russia have to fulfil a relatively stringent set of requirements, set forth in Art. 13 Federal Law from 31 May 2002 № 62-FZ On Citizenship of the Russian Federation (hereafter referred to as “Russian Citizenship Law”). These requirements include five years of continuous residence in Russia, having a legitimate source of income, being able to speak Russian, renouncing any other nationality one might hold (although several exceptions apply) and taking an oath of allegiance. However, several groups are exempted from (a share of) these criteria in order to facilitate their naturalization. These exemptions are listed in Art. 14 of the Russian Citizenship Law and mainly see on persons of Russian origin, persons with family relations to Russia and persons of economic interest to Russia. In December 2018, an additional exemption ground was introduced, which stated that certain groups of foreign nationals- which were to be further defined by the president of Russia – would be exempted from all the abovementioned naturalization requirements, except the requirement to take an oath of allegiance. In April 2019, Putin issued an executive order which determined that “permanent residents from certain districts of Ukraine’s Donetsk and Lugansk regions” fall under this particular provision. Therefore, permanent residents of these regions can now obtain Russian nationality with unprecedented ease, as they can be granted Russian nationality solely upon the condition that they take a citizenship oath. The procedural requirements are not substantial; the main requirement for applicants is to submit a recognized identity document which proves that the applicant is residing in the relevant districts within the Donetsk and Lugansk regions. Upon application, the order requires that a decision should be taken within a period of three months.
On 1 May, an additional executive order was promulgated which expands the grant of Russian nationality to those who have left the territories of Crimea and Sebastopol as well as Ukrainian nationals who are regularly residing in Russia. Meanwhile, Russia has opened a centre for the processing of citizenship applications. According to the Moscow Times, the centre could process up to 200 applications per day.
The executive order in context: the consequences of “passportization”
President Putin seems to have been directly inspired by the co-ethnic policies in Eastern Europe, stating that “For many years already – about 10 years – Poland has been giving out passports, Hungary has also been doing so, to Hungarians, and Romania … so are Russians living in Ukraine worse than Poles, Hungarians?”. As dual citizenship policies and controversies between countries are not uncommon, The Atlantic notes that what makes Russia’s approach unusual is “its use of passports as a tool to further its foreign-policy goals, sometimes meaning territorial expansion”. President Putin is said to repeat in Ukraine his previous efforts in Georgia, when in 2002 “Russia gave citizenship to locals in Abkhazia and South Ossetia, two separatist regions that Georgia claims as its own”.
The question remains what the consequences of this step will be. It is clear that the measure has further heightened tensions between Ukraine and Russia and will likely result in Ukrainian repercussion measures. It is also doubtful whether the Russian measures are acceptable under international law. While international law clearly condemns forced extraterritorial mass naturalizations on the basis of the principles of voluntariness and non-intervention, the Russian measures are of a subtler nature. However, if the measures turn out to be taken for the purpose of destabilization or de facto annexation of a foreign territory, they could potentially be classified as a violations of the principle of non-intervention or an abuse of rights.
When it comes to nationality-related consequences, it is important to acknowledge that, in the end, the naturalization of applicants remains a discretionary power of the Russian State. Therefore, it is possible that a share of the applications will not be accepted, which makes it difficult to assess the impact of the Russian measure. Another important question is whether those who obtain Russian nationality can retain their Ukrainian nationality, as Ukrainian nationality law stipulates that nationals who obtain another nationality will in principle lose their Ukrainian nationality (Art. 19 par. 1 Law N 2235-III (2235-14) of the Citizenship of Ukraine). This could potentially lead to the bizarre situation that numerous inhabitants of the Donetsk and Lugansk regions will become part of the Russian citizenry and will lose their ties to the Ukrainian State. In order to prevent that situation, the Ukrainian Ministry of Foreign Affairs has released a statement which says that it considers the Russian measure as unlawful and that it does not recognize the acquisition of Russian nationality in this case. As a consequence, those persons who acquire Russian nationality on this ground would continue to be nationals of Ukraine. However, it remains unclear how this distinction can be made in practice.
On the Russian side, the measure could also turn out to be a costly affair. After all, Russian nationality comes with Russian rights, for example the right to a pensioner’s allowance. BBC Russia has calculated that these allowances could cost Russia billions of roubles per year. Nevertheless, Putin has pledged that social security rights of the new Russians nationals will be fulfilled.
From a broader perspective, the developments fit into a bigger frame of an ongoing “passportization” in Russia’s neighbouring countries. Recent citizenship scholarship on the region includes GLOBALCIT country reports on Russia and Ukraine, which give a good insight into both the history and current political debates, as well as work by Maxim Tabachnik on citizenship law in “Russia’s buffer zone”, namely Moldova, Azerbaijan and Georgia. This could be seen as a part of a power game between Russia and the West. Russia aims to increase its influence in its neighbouring countries, as it claims to be encircled by the West as a result of the accession to NATO by countries bordering Russia and the strong US military presence in countries like Japan and South Korea. NATO itself considers this a myth and dedicates a special webpage to debunking it. On the other hand, the EU also made efforts to draw Ukraine into its sphere of influence by signing an association treaty that entered into force on 1 September 2017. While the EU feels the treaty “promotes deeper political ties and stronger economic links, as well as respect for common European values”, investigative journalism suggests that so far it mainly benefits a small number of Ukrainian oligarchs.
In the past, nationality was often utilized as an instrument for international power politics. When it comes to Russian-Ukrainian relations, it seemingly will be utilized in a similar way in the future.
Authors: Dr. Olivier Vonk and Luuk van der Baaren