EU citizenship for Latvian 'non-citizens': a concrete proposal.

• Author: Kochenov, Dimitry

1. INTRODUCTION AND THE STRUCTURE OF THE ARGUMENT II. THE STATUS OF A "NON-CITIZEN" OF LATVIA III. EU CITIZENSHIP AND THE "NON-CITIZENS" OF LATVIA A. EU Citizenship Rights B. Acquisition of EU Citizenship C. EU Citizenship for the ""Non-citizens" of Latvia IV. THE QUESTION OF COSTS V. CONCLUSION I. INTRODUCTION AND THE STRUCTURE OF THE ARGUMENT

   This contribution explains that European Union (EU) law allows for the extension of the status of EU citizenship and important rights associated with it to "non-citizens of Latvia." (1) It argues that such an extension, while having no internal effect in the Republic of Latvia and building on the doctrine of continuity with the pre-World War II Latvian Republic, (2) will clearly contribute to the improvement of the legal situation of the "non-citizens," who are in a vulnerable position. (3) The authors fully realize that extending EU citizenship does not, as such, amount to a grant of full Latvian citizenship. This will obviously be viewed by many as disappointing. It is submitted, however, that ignoring the likely positive impact of EU citizenship, with its rights and entitlements, on purely ideological grounds would be unwise. Even if not full Latvian citizenship, EU citizenship--which could be extended automatically, immediately and at virtually no cost (either economic or political) to Latvia--should not be dismissed outright. (4) If there is a viable possibility to improve the legal situation of a vulnerable group, such a possibility should be discussed in the most serious terms. This is even more so in the current international context, marked by the clear attempts of the Russian Federation to use the Russian-speaking minorities in the 'near-abroad' as a vehicle of destabilization of the neighbouring countries. (5) Such attempts have intensified with the illegal annexation of the Crimean peninsula, (6) which has strained EU-Russia relations. (7) The intention of this paper is to discuss seriously the viable legal possibilities for Latvian non-citizens and to put on the table a concrete proposal for the Latvian authorities. A draft Declaration for the Latvian government to append to the EU Treaties in order to act on this proposal is included in the Annex.

   In the short- to medium-term future, any political change leading to the full embracing of minorities is difficult to imagine in a divided society like Latvia's. (8) The starting assumption of this paper is thus: the large number of Russian-speaking Latvians without Latvian citizenship will not disappear. Consequently, the problem of the societal split between "citizens" and "non-citizens" should be solved by looking in all directions for possible tools. Particularly, in order to ensure that the "non-citizens" are not utilized by Russia to destabilize the situation in Europe even further. The paper demonstrates that EU citizenship can help this marginalized group of "non-citizens" by providing a viable (even if only partial) solution to the current problems. Such a solution is in everybody's interest.

   The starting assumption underlying this article is chiefly based on four interrelated factors. Firstly, at more than 250,000 (in a country of 2,000,000), the number of persons holding "non-citizen" status is quite high and has remained so over the years. (9)

   Secondly, their naturalisation rates are low, (10) ensuring, alongside the inheritability of the non-citizenship status, (11) that the group will not disappear within the body of Latvian citizens in the immediate future: the status is "no longer treated as temporary." (12) Thirdly, discrimination against this group is widespread, causing concerns, inter alia, in the UN Human Rights Committee. (13) Fourthly, because non-citizens cannot participate in elections, they lack the political power to effectuate change within the democratic society in Latvia (14), which demonstrates clearly decipherable ethnically-biased traits. (15)

   The argument proceeds as follows. The status of a "non-citizen of Latvia," although not a nationality sensu stricto, does not amount to statelessness either. (16) Under Latvian law, it implies mutual obligations between the "non-citizens" on the one hand and the Republic of Latvia on the other, signifying a durable legal bond between the holders of this status and the Latvian state. (17) Under EU law--just as under international law (18)--it is up to Latvia to decide who its nationals are. (19) This includes such determinations for the purposes of EU law as who among the Latvian population will acquire EU citizenship (20)--an autonomous legal status that depends on the nationality of a Member State. (21) A Member State nationality for the purposes of EU law can have a different meaning and scope compared with "citizenship" in national law. (22) A simple declaration clarifying who Latvian nationals are for the purposes of EU law, if issued by the Latvian government, would suffice with immediate effect, to extend EU citizenship to all those in possession of the "non-citizen of Latvia" status. (23) EU citizenship, with its attached rights of work, residence and equal treatment across the territory of the EU, represents a considerable bundle of rights of potential benefit for the "non-citizens of Latvia." (24) The extension of EU citizenship to the "non-citizens of Latvia" is particularly attractive, as it will have virtually no economic or political cost for the Latvian Republic: it is associated with rights in other Member States, like France, Croatia, and the United Kingdom, not at home. (25) Equally, it will not create burdens on the other Member States (26) due to the relatively small number of "non-citizens" involved compared to the half a billion EU citizens and given that all of them cannot possibly leave Latvia to benefit from these newly-acquired rights. (27) It thus makes sense to discuss the conferral of EU citizenship in the interests of the "non-citizens of Latvia" in all seriousness.

2. THE STATUS OF A "NON-CITIZEN" OF LATVIA

   For historical reasons, the weight of guilt by association for the Soviet aggression against the tiny Latvian Republic has been born by the ethnic minorities whose ancestors settled in its territory after the Second World War. For such minorities, a special legal status has been created by the Latvian state: they are the "non-citizens" of Latvia, unless they naturalize. (28) This status is now held by more than 250,000 people belonging to ethnic minorities--a large share of the population of a tiny state --and this situation is self-perpetuating: "non-citizens" are born every day. (29) Moreover, Latvian law in some cases allows foreign national parents to register their child as a "non-citizen." (30)

   Legally speaking, "non-citizenship of Latvia" verges on a nationality without citizenship or political participation. (31) To the bearers it brings a large array of rights traditionally associated with citizenship, including the unconditional right to enter Latvian territory, to remain, and to build a life there: work, non-discrimination and permanent residence are all included in the package. (32) It definitely does not imply "classical" statelessness in the sense of international law. The Latvian Constitutional Court clarified that the status of "non-citizens" is a "new, up to that time unknown category of persons" (33) but was careful not to describe them in terms of Latvian nationality, despite the durable connection with the Latvian government and many of the associated rights and obligations of nationals. This venture into the unknown has been criticized by the UN Human Rights Committee, which underlined the problematic nature of perpetuating this kind of half-way solution. (34) The very "continued existence" of the status of "non-citizens" caused concern for the UN Committee Against Torture among other international bodies. (35)

   Crucially, while a number of differences in Latvian law persist in the treatment of citizens and "non-citizens," two particularly important distinguishing features of the latter status can be outlined. The first of the two is full exclusion from elections. (36) To vote, naturalisation is required. (37) The second is full exclusion from the enjoyment of EU citizenship rights in the territory of the EU, which Latvia joined more than ten years ago on May 1, 2004. This paper is concerned with EU law as a possible way of improving the situation of these "non-citizens," thus dealing merely with one of the two core limitations of this legal status outlined above.

   The legal history of the status of "non-citizens of Latvia" is closely intertwined with the recent past of the Republic itself. On October 15, 1991 the Latvian Supreme Council (interim Parliament) passed the Decision "On the Renewal of the Rights of the Citizens of the Republic of Latvia and on the Fundamental Principles of Naturalisation," which was based on the concept of continuity of the citizenship of the Latvian Republic that existed before the Soviet occupation. (38) The doctrine of continuity holds that only those persons who had been citizens of independent Latvia in 1940 and their descendants had their citizenship restored. (39) This approach was confirmed by the Citizenship Law of 1994, (40) which reflects the continuity of Latvian citizenship between those who were citizens in the Latvian Republic, which gained independence after World War I, and those in the current Latvian state, which regained independence after the dissolution of the USSR.

   The legal status of people who were not recognized as citizens of Latvia remained unclear until 1995 when the Law on the "Status of Former USSR Citizens Who Do Not Have the Citizenship of Latvia or of Any Other State" was adopted. The law introduced a special legal status of "non-citizens," granted to those who enjoyed registered domicile in Latvia on July 1, 1992 and who did not have citizenship of Latvia or any other country (except for some retired USSR army...