Chapter 3 The Arrow of Passports in the Quiver of Russia

Eastern Ukraine, Abkhazia and South Ossetia in Perspective

In: Unrecognized Entities
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1 Introduction1

The authority of States to freely decide who their citizens are is, for one thing, firmly established in international law.2 Indeed, in the parlance of the European Convention on Nationality, citizenship represents the “legal bond between a person and a State”3 and it is – as formulated in the 1930 Convention on Certain Questions relating to the Conflicts of Nationality laws – “for each State to determine under its own law who are its nationals.”4 If this assertion is truly accurate and also translates into politically tangible results, this very assertion will succumb to certain critical questions: why does the European Council in its conclusions of 20 June 2019 deplore the practice of mass extraterritorial naturalization by Russia of Ukrainian citizens as contrary to “the spirit and the objectives” of the Minsk Protocol?5 Why is it that in the most recent judgment handed down by the ECtHR on the conflicts in Georgia, the term ‘passportization’6 is claimed to be one important element giving evidence as to Russian jurisdiction over both entities – Abkhazia and South Ossetia – after the August War of 2008.7 So, is passportization nothing more than an utterly cynical tool to artificially provide a casus belli, as suggested by Asmus considering the cases of Abkhazia and South Ossetia?8

Indeed, no rule exists without an exception and the right to regulate citizenship rubricates accordingly. Citizenship suffers from legal uncertainties and those very uncertainties become manifest when States provide this precious item extraterritorially. Numerous academic works as well as soft law documents9 reflect a vigorous ongoing political and scholarly debate.10

Particularly sharp criticism is levelled at behavior by Russia in what it considers to be its backyard in post-Soviet space, not least by, most recently, introducing the practice of a fast-track naturalization procedure for residents of the separatist regions of Donetsk and Lugansk in Eastern Ukraine.11 This chapter places a comparative focus on Russian passportization policies in Eastern Ukraine as well as the two Georgian breakaway regions of Abkhazia and South Ossetia.12

The present chapter is structured as follows. The framework of international law relevant for the present conflict is briefly overviewed (Part 2); then follows a legal and political assessment of Russian passportization policies, in an effort to compare the context surrounding policies in Eastern Ukraine and the South Caucasus (Parts 3 and 4). It is argued that in strict terms, a violation of international law is evidently far more overt in the case of Eastern Ukraine; this proposition is based on the fact that the region remains in an ongoing armed conflict in disregard of the Minsk agreements and the fact that, unlike in the South Caucasus, there have never been any doubts as to the citizenship status of the population in Eastern Ukraine. In addition, the conflict cases in Georgia feature as gray zones, for which – although Russia may have breached its obligation to comply with the principle of good faith – international law will render only ambiguous assessment. In conclusion, it will be argued that robust remedies to address these situations are scarce as we are still faced with some profound inadequacies in international law.

2 The Legal Framework: Some Remarks

2.1 Nottebohm: Obscuring Rather than Enlightening

Are States truly operating in a legal gray zone, which they are permitted to twist to their advantage? Even if the argument put forward by Green, namely that “Russia was and is entitled to grant nationality to whomsoever it likes”13 is not entirely inaccurate, the margin of appreciation of States in determining the prerequisites for granting citizenship has gradually come under scrutiny.

Some brief reflections should suffice in this context. In one of the earlier disputes on the State’s discretion to grant nationality, the 1923 Advisory Opinion of the Permanent Court of International Justice (pcij) on nationality decrees in Tunis and Morocco held that while nationality is not governed by international law, this general rule extended only to laws that are not applied extraterritorially.14 The Convention concerning Questions relating to the Conflict of Nationality Laws of 193015 confirmed this approach. However, neither the 1930 Hague Convention nor the 1948 Universal Declaration of Human Rights (udhr) lay down concrete rules on the relationship between naturalization and a State’s obligations regarding the extraterritorial effects of naturalization.

Legal assessment of exterritorial naturalization has been affected, at least from the perspective of scholarly dogmatic literature, by the concept of the so-called ‘genuine link’ invoked by the icj in the 1955 case of Nottebohm.16 In this judgment, the Court held that, while States remain free to determine the conditions of naturalization, they are only entitled to demand recognition of such naturalization if the State “has acted in conformity with this general aim of making the legal bond of nationality accord with the individual’s genuine connection with the State.”17 A genuine connection was described as “the exact juridical expression of a social fact of a connection”,18 encompassing personal interests, activities, family ties, and intentions.19 This by and large echoes the still existing idea floating around some States that citizens are tantamount to a soft inventory of the State and that shared loyalty in the form of dual citizenship is both impossible and undesirable.20

The Nottebohm doctrine, despite allegedly reflecting the principle of effectiveness, has not been broadly reflected in other treaties, though.21 There is thus no echo thereof in the 1997 European Convention on Nationality, which leaves the decision over consequences of multiple nationality to the discretion of States and embraces the possibility of multiple nationality.22 Only in cases of resolving questions of conflict relating to dual or multiple citizenship has it been considered a helpful deciding criterion.23 As the genuine link principle lacks clarity and fails to produce reliable benchmarks, its effect on international law scholarship has been obscuring rather than enlightening.24

2.2 Kin-States and National Minorities

As the applicable law in this field remains disputed, it gives rise to equally contentious political problems, as cases from Eastern Europe demonstrate. In practice, issues of this kind pervade the policies of so-called kin-States, which attempt to politicize the dimension of co-ethnics residing abroad.25 And interestingly, they do not pertain exclusively to the Russian dimension, even if the 1993 amendment to the Russian citizenship law permitting dual citizenship was seen as a first step in a more harrowing broader cultural context after the demise of the USSR in which Russia started to display rather hegemonic ambitions.26 Indeed, a prominent feature in this discussion is the 2001 Hungarian Status Law, providing benefits on grounds of ethnic and cultural markers to citizens of States such as Romania,27 evoking sharp opposition therefrom.28 As the law in its initial form also provided benefits for the Hungarian minority in Austria, the Austrian government also issued a protest against this bill to which Hungary, finally, gave in.29 Other Central and East European States such as Croatia, albeit until the 2000s,30 have also relaxed their citizenship laws to make persons belonging to “their” ethnic kin in other countries eligible for citizenship.31

Thus, the practice of East European States highlights that citizenship by naturalization not only forges a link between an individual and a State but has a major outward effect on other States.32 That said, the content and limits of extraterritorial naturalization remain vague,33 a conclusion which the European Commission for Democracy through Law (“Venice Commission”) had also implicitly drawn in the dispute between Hungary and Romania over the Hungarian Status Law. The Commission found that unilateral measures on protection of kin-minorities are by and large lawful, provided that these very measures do not conflict with foundational principles of international law such as respect for a State’s territorial sovereignty.34 Yet, the Commission had been rather explicit in its desire to encourage Hungary to resort to bilaterally acceptable measures and to restrict preferential treatment to the fields of education and culture.35 Thus, attempts have been made to draw limits by ‘soft-law’ instruments. Echoing these developments, the Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations and other recommendations by the osce High Commission on National Minorites (hcnm)36 have gradually been adopted. While acknowledging the State’s interest in supporting minority communities abroad,37 they encourage States – very much following the philosophy of the Venice Commission’s Opinion – to refrain from taking unilateral steps through extension of benefits on the basis of ethnic, cultural, religious, or linguistic ties,38 and specifically to refrain from conferring citizenship “en masse”.39

One may pause here and reflect that these cases are, despite their contentious nature, politically less virulent since they occurred as disputes among EU member States or then-candidate States respectively. Thus, citizenship of both home and kin States gives rise to EU citizenship, which, in the parlance of Kochenov, marked since 199340 the commencement of an entirely new era in European integration for it eliminated the division of Member States’ citizens into those who fell into the prior personal scope of ec law and those who did not.41 Even if Member States are still in a position to freely adopt rules on acquisition and loss of nationality, citizens of the Union enjoy profound rights and fundamental freedoms pursuant to Article 20 tfeu on an equal basis. To put it in a practical perspective: A Romanian who seeks to reside and work in Austria will not be able – in the context of Union law – to move to a more or less favorable position vis-à-vis a Hungarian or Austrian citizen, should he decide to apply for Hungarian or Austrian citizenship, as the provision of Article 45 tfeu remains equally applicable to all of these putative citizens. Thereby, it crystallizes that EU citizenship mirrors the autonomous nature of the EU legal order. And even apart from these considerations, Hungary did, in fact, react positively to some suggestions by the Venice Commission.42

Thus disputes revolving around extraterritorial naturalization that exclusively occurred between EU States have arguably lost much of their previous toxic steam in the course of EU enlargement in 2004 and 2007. As far as Georgia and Ukraine and their relations with Russia are concerned, one is, however, charting much more turbulent political ground, as, first of all, the existence of a comparative autonomous legal order is non-existent. By 1995 plans had been pursued by the Russian government to advocate the introduction of a Commonwealth of Independent States (cis) citizenship.43 Yet, expectedly, this initiative found but little sympathy among the successor States of the ussr and failed eventually.44 However, this alone highlights a second major problem: The inadequacy of the norms relating to conferral of citizenship creates considerable elbow room through which relations between Russia and former Soviet Republics can not only be shaped and reshaped but through which a geopolitical tool is provided that extends the State’s competence to exercise sovereignty over certain individuals. And indeed, to shift the protective function of citizenship away from internal nationals to nationals abroad has increasingly been discussed as either creeping annexation or in the contours of “citizenship as a weapon against sovereignty rights of States”.45 This was also reflected by the former Russian ECtHR judge Anatoly Kovler, who provided a stunning critique of Article 62 of the Russian Constitution, which allows dual citizenship. He argued: “The promises of dual citizenship to compatriots abroad are another mythologized political slogan, a bargaining chip in a geopolitical game, or simply put, the result of state and political irresponsibility.”46 Yet, not all shared these concerns. If we decide to follow the reasoning of one of the doyens of international law scholarship in Russia, Stanislav Chernichenko, it is necessary to protect 25 million Russians living abroad who have no Russian citizenship.47 While not explicitly calling for massive extraterritorial naturalization, he conceded by 2002 that bilateral treaties as well as the multilateral framework for protection of minorities is not effective.48 Moreover, thus Chernichenko:

“In Ukraine, the Russian language is artificially forced out where people mainly speak this very language – in Crimea, in Donbass, in Kharkov, in Odessa. These are vast territories and an attempt to consider their population as a minority artificially separating the Russians from the Ukrainians speaking the Russian language is, at best, fruitless. By the way in Kiev, the capital of Ukraine, no less than 50 percent of inhabitants speak Russian.”49

Indeed, this argument – against the background of an undeniable interconnectedness between politics and law scholarship in Russia50 – does not bode well for those countries within the orbit of the Russian Federation, given the self-picture of a derzhava with imperial ambitions very much in the Schmittian sense of Russia.51 And one may be inclined to see these approaches as spelled out by scholars like Chernichenko as harbingers of the tragedy that unfolded in 2014 in Ukraine. This highlights the profound dilemma that the obligation of States to achieve good neighborly relations, something which in this very thematic context is demanded by Article 2 of the Framework Convention for the Protection of National Minorities (fcnm),52 seems absent. The Venice Commission has already cautioned that friendly relations, also echoed by the Bolzano/Bozen Recommendations in paragraph 9, ought to give guidance to States regarding the preferential treatment of national minorities abroad. Hence, against the background of deteriorating relations between Russia and Georgia as well as Russia and Ukraine since 2014, all of these actions are legitimately to be viewed within only a twilight of lawfulness.

3 Extraterritorial Naturalization in the Post-Soviet Space

3.1 Abkhazia and South Ossetia

Following Georgia’s declaration of independence and its admission to the United Nations in 1992,53 armed conflicts between the Georgian authorities and South Ossetian and Abkhazian separatists escalated, resulting in de facto secession from Georgia in 1992 and 1993, respectively.

Paradoxically, though, the massive scale of citizenship conferral by Russia in these regions only started almost ten years after the first hot phase of conflict in both cases.54 In fact, in the early 1990s, Russia recognized Georgia in congruence with the territory of the Georgian ssr,55 including Abkhazia and South Ossetia. Only following the Russo-Georgian war of August in 2008 did Russia recognize both Abkhazia and South Ossetia as independent States.

Yet, the relative ease with which Russia’s conduct in Ukraine could be construed as an unmistakably clear breach of international law, making the ex iniuria principle applicable, cannot be sufficiently substantiated in the case of Georgia. Even if the erstwhile, yet always severely doubted, neutrality of Russia in the Caucasus conflicts was gradually abandoned in the 2000s, the ‘real’ conflict over these territories broke out much earlier than in 2008. Likewise, when Georgia acceded to the echr, it declared that it alone was unable to guarantee the rights and freedoms of the echr in Abkhazia and the Tskhinvali region (South Ossetia). Russia was not mentioned as the legally responsible culprit at all.56

Ironically, the conferral of Russian citizenship ensued on the basis of, one might argue, a rather contradictory application of Russian domestic law: Initially, the 1991 citizenship law of the rsfsr57 embodied the idea of Russia as continuator (“prodolzhatel’”) rather than legal successor (“pravopreyemnik”) of the USSR.58 It provided an expansive policy allowing non-rsfsr residents to become Russian citizens under a simplified procedure and without being obliged to renounce their other citizenship.59 The citizenship law reform of 2002, however, ended the privileged position of former Soviet citizens.60 The new rules61 reinforced the traditional “nexus between territory and citizenship”;62 only those former Soviet citizens who were born on Russian soil may be entitled to citizenship. This law was designed to prevent the naturalization of migrant workers from Tajikistan and other Central Asian States.63 Yet, this law had a “loophole”,64 which, as shown further, was invoked in the naturalization of residents of secessionist entities.

As mentioned above, passportization en masse in Abkhazia and South Ossetia started years after the first wave of armed conflicts. By 2004, the number of Russian citizens in Abkhazia had increased, from 20% to 70%, and in South Ossetia from 56% to an impressive 98%.65 Hence, even if the Russian citizenship law of 2002 was originally meant to reduce the number of new citizens, it provided a gate to citizenship for residents in post-Soviet secessionist entities. The so-called loophole concerned the rules applicable to stateless persons: Under Article 14, para 1 lit a of the citizenship law as promulgated on 31 May 2002, stateless persons who had possessed ussr citizenship and resided in States that were part of the ussr, yet had not received citizenship of those States, were eligible for naturalization under a simplified procedure.66

However, it is not clear which legal rule was applied to handle applications from both entities. It has been argued that the vast majority of applications were handled under the 1991 law, as the 2002 law took effect only on 1 July 2002, whereas most applications were submitted between 1 and 30 June. Many residents of the separatist regions have considered the 2002 amendment as a threat to their desire to become Russian citizens.67 Strikingly, although this provision was formally invoked for naturalization, in all cases it actually revolved around the statelessness of the applicants.68 This obviously creative reading of the law may be argued to have constituted a new strategy of the Russian Federation in its post-Soviet political affairs.

Georgia vigorously protested against the Russian move. The Georgian government argued that these persons are Georgian citizens and that dual citizenship is not automatically allowed unless special approval is secured in advance.69 Hence, in essence, the fundamental question is whether Ossetians and Abkhaz residents of Georgia were legally stateless after the erstwhile end of the conflicts stretching between 1992 and 1993. And this stands in stark contrast to Eastern Ukraine, where it is undisputed that individuals who had received Russian citizenship were undisputedly Ukrainian citizens prior to the crisis.

Up to 2002, most of the residents in Abkhazia and South Ossetia continued to use their old Soviet identification documents as their locally issued passports were not recognized. Indeed, prior to 2002 both Abkhazia and South Ossetia had enacted their own citizenship laws70 which granted most of the residents in both regions citizenship of these secessionist entities. Yet, as a consequence of lack of recognition, that citizenship was legally irrelevant. It had to be disregarded by Georgia, which could therefore not claim that those individuals had de lege lost their Georgian citizenship,71 as well as by Russia, at least prior to 26 August 2008.72 Following the upheavals of 2008, a Treaty allowing dual citizenship was concluded between both entities and the Russian Federation after recognition.73 The possibility for residents of these entities to obtain Russian citizenship was further strengthened in two subsequent treaties.74

Importantly, the majority of Abkhazians and Ossetians did not cross the administrative boundary line to Georgia proper to do the paperwork for a Georgian passport (although, notably, passports do not grant or terminate a citizenship status, but merely attest to it).75 So the assertion of de facto statelessness in this context stands on shaky grounds. It is unknown whether some residents had officially relinquished their Georgian citizenship in accordance with the Georgian citizenship law. Most likely this number has been negligible at best.76 Hence, Abkhazian and Ossetian residents were indeed de lege Georgian citizens.

3.2 Eastern Ukraine

The case of Crimea, which is not in the focus of this chapter, can nonetheless usefully be discussed in brief: So-called ‘hard-law’ instruments offer guidance in cases of conferral of citizenship resulting from violations of ius cogens. Under Article 41 (2) ilc Draft Articles on the Responsibility of States for Internationally Wrongful Acts,77 which reflects the principle of ex iniuria ius non oritur, the consequences of impairing peremptory norms of international law by other States must not be recognized. This would generally require not treating residents of Crimea – following the Russian annexation of the peninsula – as Russian citizens as the conferral of citizenship only ensued from and through annexation. Yet, there is even more evidence to seriously doubt the lawfulness of passportization in Crimea: According to Human Rights Watch, Russian policies immediately after the annexation were clearly focused on bestowing Russian citizenship on the residents of Crimea through a quasi-coercive process,78 placing those not wishing to become Russian citizens under the threat of statelessness.79

Even if allegations of the widespread practice of Russian passportization in Ukraine had been floating for some time prior to the unfolding of the crisis in Ukraine,80 the policy did not gain traction any earlier than after the events of Euromaidan. The most recent case in which Russia’s passportization policy has been applied concerns Eastern Ukraine. To recall, the separatist entities of Donetsk and Lugansk emerged in Eastern Ukraine in the wake of the Euromaidan events of 2014. After the annexation of Crimea in March 2014,81 pro-Russian separatist groups, supported and equipped by the Russian Federation, established two separatist entities. This in turn leaves hardly any doubt as to their position being under effective control, at least overall control, by the Russian Federation. These entities are the so-called Lugansk People’s Republic (lpr) and Donetsk People’s Republic (dpr), both of which declared independence from Ukraine in May 2014.82

After attacks by militants, the Ukrainian government lost control over the two separatist regions – a situation that continues to this day. In September 2014 the Ukrainian government and the militants signed the Minsk Agreement,83 which provided for a ceasefire, decentralization of power in Ukraine and, inter alia, special status for the two regions, albeit as part of Ukraine. However, only half a year later the armed conflict resumed. The second attempt at peace talks – the Minsk ii Agreement of 201584 – provided for local elections in Donetsk and Lugansk, and entailed a plan for constitutional reform in Ukraine involving decentralization and special status for the two regions. Neither the reform nor the local elections have been conducted at the time of writing, and tensions remain high in Eastern Ukraine.

Criticized by osce Secretary-General Zannier85 as well as subject to a controversial UN Security Council meeting on 21 February 2017,86 formal ties between Russia and these entities began to emerge even prior to the actual passportization campaign, when Russia started to officially recognize identity and travel documents87 issued by the authorities of the dpr and lpr.88 Thus, in April 2019 the Russian Federation adopted the “Executive Order on Identifying Groups of Persons Entitled to a Fast-Track Procedure when Applying for Russian Citizenship on Humanitarian Grounds”, known as Decree No. 183,89 which provides a simplified naturalization procedure for the residents of Donetsk and Lugansk, shortening the naturalization process from at least eight years to under three months.90 The executive order enabled acquisition of Russian citizenship without fulfilling the naturalization requirements under Article 13(1) of the Federal Law on Citizenship of the Russian Federation, such as continuous residence on Russian territory for five years, a legitimate source of livelihood or renunciation of the other citizenship of the applicant. An application for Russian citizenship could be submitted with an identity document issued by either of the separatist entities in centers for issuing Russian passports, which had been established in neighboring Russian towns immediately after adoption of the executive order.

The simplified procedure potentially applies to over six million Ukrainians residing in the separatist regions. In spite of protests by the Ukrainian government,91 by the end of 2019 over 220 000 Russian passports had been issued to Ukrainian citizens residing in the East Ukrainian separatist entities.92 Germany and France heavily criticized this Russian policy as contrary to the objectives of the Minsk agreements and, more generally, as contrary to the overall efforts of de-escalation.93 At first, Germany’s Federal Foreign Office was not eager to assess the legality of the executive order of the Russian President in light of international law.94 However, both France and Germany condemned the facilitation of Russian passports to Ukrainian citizens residing in the separatist regions as a clear violation of Ukraine’s sovereignty and, ultimately, a violation of international law.95

Consequently, countries such as Germany treat the naturalization of Donetsk and Lugansk residents as having no legal consequences, quite similar to what Grant claims as a contextual circumstance deeming this action unlawful: Passportization in furtherance of annexation,96 or as the author of this chapter argues, in anticipation of future formal annexation; in other words, passports issued to these individuals are not recognized as valid travel documents in line with the principle of non-opposability.97 Ukraine continues to treat these individuals as Ukrainian citizens. For the purposes of international law, third states should also consider these persons to be Ukrainian citizens, so that statelessness is avoided: if third states were neither to recognize the Russian nationality of these persons nor treat them as Ukrainians, the residents of Lugansk and Donetsk would essentially become stateless – an undesirable status under international law colliding with Article 15 of the Universal Declaration of Human Rights, and thus certainly one to avoid.

4 Assessment in Light of International Law

4.1 Abkhazia and South Ossetia

Let us start with Georgia first. There is a widespread notion that the Russian passportization campaign has been enforced against the will of the populations of Abkhazia and South Ossetia.98 It is established custom in international law that naturalization requires a voluntary act, expressly or implicitly, on the part of the individual, namely, a wish free of threat, force or coercion, to gain the nationality of a State.99 Enforced naturalization has long been deemed an unlawful encroachment upon other States by absorbing one of their central elements of statehood along with their population,100 in line with internationally recognized standards.101

As far as Abkhazia and South Ossetia are concerned, it is reasonable to assume that the applicants acted voluntarily. From a pragmatic perspective of the entities themselves, residents of Abkhazia and South Ossetia benefited greatly from the passportization campaign. They were provided with an internationally recognized travel document after years of isolation and blockade.102 As Russian citizens, they are entitled to work, study and live in Russia, and to travel within the Eurasian Economic Union, as well as to receive pensions and other social allowances which, even if moderate, are still higher than in Georgia, let alone in their secessionist entities.103 As noted above, passportization did not occur during an ongoing armed conflict – unlike in Eastern Ukraine – which would render consent much more dubious.104

Nevertheless, conferral of citizenship was clearly and proactively facilitated by the Russian authorities: In Abkhazia alone, the Association of Russian Communities of Abkhazia set up temporary offices to receive applications in six out of seven political districts, which, subsequently, were brought to Sochi; the officers then returned carrying suitcases full of Russian passports.105 It was reported that special units were dispatched to Sochi to handle incoming applications and that these passports were ready within days,106 all in all pointing to an unusually swift administrative process. In other words: All indicators point to an operation that was well-planned in advance. It has to be emphasized, however, that there have been reports about ethnic Georgians being forced or coerced into accepting Russian citizenship.107 Yet, it is difficult to establish how many ethnic Georgians in these entities became Russian citizens.108 Thus, the actual dilemma in this context pertains to the citizenship or lack thereof of these entities. Abkhazia’s census of 2011 suggests that 98% of the 30,000 residents of the Gali region are ethnic Georgians. The majority still retain their Georgian citizenship.

In the absence of unequivocal indications of coercion, one might still consider other factors which might point to prohibited interference with Georgian sovereignty. Some interrelated questions may arise to address this issue in the present context: Whether passportization constitutes a threat to Georgia’s existence as a State; second, whether it is a threat to Georgian independence; finally, whether it amounts to an unlawful intervention in the internal affairs of Georgia.109

As far as the first two questions are concerned, the policy of passportization did not, as such, unmistakably violate Georgia’s sovereignty. Conferring a nationality en masse to citizens extraterritorially creates legal uncertainty: The question arises as to which State – the State of residence or the State of nationality – may exercise personal jurisdiction over the individuals concerned. Some rules, for instance Article 6 of the ilc Draft Articles on Diplomatic Protection, allow both States to jointly exercise diplomatic protection over persons with multiple nationalities and (only) in this aspect, the Nottebohm principle may be of limited value.110 Yet in accordance with Georgian nationality law, citizens are de lege deprived of their Georgian citizenship upon acquisition of another citizenship. While this constitutes an autonomous decision by Georgia, nevertheless competition with the jurisdiction of another State emerges.111 That notwithstanding, some arguments speak against establishing interference with Georgia’s sovereignty.

While Luchterhandt maintains that Russia’s conferral of citizenship en masse points to an unlawful expansion of Russia’s jurisdiction over a part of Georgia’s population,112 Crawford, for instance, observes that “nationality is dependent upon statehood, not vice versa”.113 To determine a precisenumerical threshold, however, is indeed a challenge, if not an impossibility.114 It has already been argued above that States such as Romania have quite flexibly provided nationality to Moldovan citizens and no one could conceivably argue that Moldova’s jurisdiction had been unlawfully impeded by Romania. Such a claim in the Georgian conflict cases would, moreover, be problematic given the generally low total numbers of naturalizations in Abkhazia and South Ossetia in relation to the overall population of Georgia115 and considering Georgia’s loss of effective control over both entities as long ago as the beginning of the 1990s. The loss of territorial jurisdiction was followed up by the loss of personal jurisdiction years later, This basically means that the population criterion, to put it in the vocabulary of Jellinek, was absent years prior to passportization. Furthermore, in strict terms, independence as an outstanding characteristic of a State116 simply means that a State may not to be required to formally submit to another, superior State.117 Yet, this has not also been the case in the interrelationship between Georgia and Russia.

Therefore, the final question is whether Russia has unlawfully intervened in the internal affairs of Georgia. The domaine réservé of States is, as prescribed by Article 2 (7) of the UN Charter, a field of activity that is off limits for other States.118 In the same vein, the Friendly Relations Declaration reads that no State “may use or encourage the use of economic political or any other type of measures to coerce another State (…)”.119 Yet, not only is it disputed what precisely – and exclusively – falls within domestic jurisdiction; an unlawful intervention must, in addition, have been applied coercively.120 Yet, ascertaining coercion in this context is difficult, as the line between permissible and non-permissible naturalizations is blurry,121 and it appears that in Abkhazia and South Ossetia naturalization occurred broadly speaking on a voluntary basis.

It is, therefore, dubious whether extraterritorial naturalization can create significant pressure as it is sometimes portrayed.122 In fact, Russia’s conferral campaign has not in the least frustrated Georgia’s Euro-Atlantic aspirations. If anything, Georgia – irrespective of Russian opposition – reinforced its foreign policy choices, continued to promote its nato candidate status, and signed the EU-Association Agreement in 2014. One may, thus, argue that if passportization was designed to coercively compromise the internal or external policies of Georgia, it failed and it may even be said that it achieved quite the opposite. Georgia has continued politically to remain on this path, not least by raising the issue of Abkhazia and South Ossetia at different international fora.123

One may still consider a legal assessment from a broader and more inclusive perspective. It may still be argued that Russia breached the bona fides principle, a value-oriented124 general principle of law as specified in Article 38 para 1 lit d of the icj Statute. Where a breach of a legal norm is disputed or difficult to establish, general principles of law offer flexibility in assessing the profound uncertainties prevalent in international law and in determining the lawfulness of a situation.125 In this respect, we may recall The Friendly Relations Declaration, which lays down that all States “shall comply in good faith with their obligations under the generally recognized principles and rules of international law with respect to the maintenance of international peace and security.”126

In this light, Georgia could have expected Russia to refrain from escalating the already volatile situation vis-à-vis its breakaway territories. After the end of the armed conflicts, the sides in both conflicts have only been exchanging maximum demands without substantially contributing to a mutually acceptable solution. The passportization campaign coincided with paralysis of the conflict resolution process; the passportization campaign further demonstrated that Russia was abandoning its role as a neutral mediator in these conflicts. In addition, Russia introduced a visa regime for Georgian citizens, from which Abkhazians and South Ossetians were exempt.127 Evidently, this was interpreted by the Georgian side as a hostile move, which illustrated that Russia is not acting in good faith. Hence, the passportization campaign removed any incentives for the Abkhazians and Ossetians to participate in further talks with their Georgian counterparts.

In addition, we should keep in mind the massive scale of extraterritorial naturalization, which has had a detrimental effect on the overall situation in the country.128 It is worth noting that in Georgia, Russia for the first time deviated from its legal tradition of upholding the connection between territory and citizenship.129

Russia has breached the good faith principle as it conferred its nationality not on stateless persons – the naturalizations were processed according to the simplified procedure for stateless persons – but on de lege Georgian citizens. In this context, any references to de facto statelessness are not applicable: No uniform State practice concerning de facto statelessness can be identified,130 and if it were, it would seemingly only apply to refugees in the case of their well-founded fear of being persecuted.131 This obvious disregard for its own law may indicate that Russia has not been acting in good faith.132 We arrive at a somewhat curious result: The Russian government constantly claims to comply with international law in its foreign affairs, yet, in this context, it did so by disregarding its own domestic law. In other words, to naturalize residents extraterritorially based on statelessness even though those residents were not stateless couple with failure to seek a resolution and by aiming to protect the interests of Abkhazians and Ossetians bilaterally133 allows the Russian passportization campaign to be perceived as not being delivered in good faith.

4.2 Eastern Ukraine

Quite Similarly, Ukraine has retained its pro-Western stance despite the pressure created by the annexation of Crimea, Russia’s support for the pro-Russian separatists in the eastern part of the country as well as the most recent passportization campaign – a factor clearly reflected in a number of constitutional amendments –134 which feature as visible defiance to giving in to Russian political demands. Yet, this is where the similarities with Georgia end. Russia’s passportization policy in Eastern Ukraine has not only been widely criticized by numerous actors among the international community; the legal, political and factual context in which Russian citizenship has been conferred on the individuals concerned leaves little doubt of incompatibility with international law. In the midst of an ongoing armed conflict – which continues to claim the lives of soldiers and civilians alike – and after the annexation of Crimea as well as thinly veiled support for the dpr and lpr rebels, one can start to question whether all applicants for Russian citizenship truly acted voluntarily. Peters rightly further claims that persons must not be “lured into a new nationality by threat or by misrepresentations, or by promising advantages.”135 Accordingly, in Eastern Ukraine, the pressure to obtain Russian passports in an overall humanitarian situation in which entire districts and invaluable amounts of private property have been destroyed136 and families are torn apart by the horrors of war have created profound conflicts of loyalty for a number of individuals. And one must be mindful of the fact that such a conflict over loyalty has a deeper dimension in Russian-Ukrainian affairs as the Ukrainian law on citizenship does not explicitly allow dual citizenship.137 Furthermore, as in Crimea, those who did not obtain or refused to obtain Russian citizenship faced severe restrictions in exercising their property rights,138 their right to public health insurance,139 or their right to gain or retain employment.140 In other words: the context within which passportization is immersed is tantamount to coercive, clearly rendering this campaign unlawful, even if, on the part of the applicants, there are reasons to opt for Russian citizenship.141

The matter of Ukrainian sovereignty also deserves to be addressed: As far as concerns the legal benchmarks mentioned above, the context of the annexation of Crimea and the fact that Ukraine has since 1991ben an undisputedly recognized State in its entirety – including Crimea and Eastern Ukraine – a fact that also has been expressly recognized by Russia in various bilateral treaties,142 makes it clear that passportization was and is additionally intended to encroach upon Ukraine’s sovereignty in many different aspects. The initial military and logistic support provided by Russia to the dpr and lpr separatists as well as control over them, which was gradually formalized into adoption of a fast-track procedure for obtaining citizenship delivers the background to Russia’s efforts to be the sole determiner of Ukraine’s political future, not least by cultivating closer ties with the Donbas region.143 And even if, in a broader analysis, Russia has only in a very limited way achieved its political objectives in Ukraine with these policies, some of the most important elements of the cases of Abkhazia and South Ossetia do not apply here: Not only were the residents of Donbas neither de lege nor de facto stateless prior to their extraterritorial naturalization, but the very creation of the dpr and lpr as entities was to an eminent degree either effectively or, at least, in an overall manner directed by Russia. It is precisely for this reason that, as put by Korotkyi and Hendel, the “dpr and lpr cannot claim the status of unrecognized states”144 as they do not feature convincingly enough as legal gray zones, such as Abkhazia and South Ossetia, which defy categorization along the self-determination vs. territorial integrity divide. Thus, the case of Eastern Ukraine is in this respect a model case in which conferral of Russian citizenship is illegal because it is “part and parcel of a breach of international duty”.145 Indeed, as Brownlie put it, “much will depend on the context in which the issue arises.”146 And the context of the conflict in Ukraine seems entirely clear.

5 Concluding Remarks

This chapter highlighted that even if Russia has not stricto sensu violated ‘hard law’ in Georgia, the passportization policies pursued by it have nonetheless involved bad faith. In contrast, in the case of Ukraine, we are presented with an entirely different situation. The circumstances of an ongoing armed conflict, continuous encroachment upon Ukraine’s sovereignty, and the harm these policies did to the Minsk agreements – all suggest that Russia’s actions amount to a situation where an assessment in international law is and cannot be ambiguous as in the case of Georgia: It is and continues to be clearly unlawful.

Three concluding aspects may thus be drawn: First of all, international law is a reliable normative barometer for clear-cut cases such as those discussed in the context of Eastern Ukraine, while it gives only moderate guidance for the gray zones such as those emerging from Georgia. That leads to the second aspect: The dichotomy of lawfulness vs. unlawfulness in the context of passportization notwithstanding, relatively few international-law constraints apply to States regarding their choice of who may become a citizen. Moreover, there has been little appetite by the international community to break new ground in codifying these questions in a sufficient manner.147 Thus, passportization helps crystallize international law as a self-help system;148 drawing on the ex iniuria principle, other States may, as a consequence, choose to treat the affected individuals as citizens of Ukraine and Georgia, respectively as, for example, proposed by Peters.149 Still, some significant caveats in applying the ex iniuria principle must not go unnoticed, though. The ex iniuria principle has not been consistently upheld and,150 and if it is indeed strictly upheld, it may create non-traversable trenches between law and fact: Even if certain violations are seen as grave enough to trigger the ex iniuria principle, how long would such an obligation apply? Besides, is it politically wise to go to great lengths to defy recognizing these individuals as Russian citizens? Attempting to push Abkhazians and South Ossetians into Georgia’s embrace by non-recognition of their Russian citizenship and hoping they will acquiesce is unrealistic. It was the history of an ethnically felt conflict and the isolation of Abkhazia and South Ossetia after their recognition by Russia in 2008, which forced both entities even deeper into the Russian orbit. A more innovative and relaxed approach, therefore, could and should be implemented.151 Similarly, in Eastern Ukraine, efforts to implement the Minsk agreements as well as confidence-building measures should be at the forefront, gaining preference over issues pertaining to passportization, as the key measure and as a softer approach nudging the conflicting sides towards cooperation.

There is a third and final and perhaps more sinister aspect: Russia’s practice of passportization painfully reveals that it is not willing to treat other States in its backyard on equal eye level as peers as this practice cannot be entirely untied from the legal narratives that give meaning to Russia’s official position concerning ius ad bellum. The protection of ethnic Russians and, in particular, of Russian citizens has always been an instrument designed to justify regional interventions.152 Former Russian President Dmitry Medvedev quite candidly made this point in 2020, when in retrospect, he reflected about the reasons why Russia intervened in August 2008 in Georgia: “At the same time, Russia, and one has to understand that, will never allow anyone to attack our citizens, wherever it happens.”153 This echoes precisely with what Mälksoo argues, namely that a profound change has taken place in the Russian stance on ius ad bellum, as the Soviet Union did not have a large number of nationals living abroad, unlike the situation of Russia today.154 At the same time, passportization can also fulfill the function of providing partial legitimacy to the existence of those entities, while – in contrast to Abkhazia and South Ossetia – no formal recognition of the independence of dpr or lpr has been rendered.155 That having been said, one may again recall the Venice Commission’s Opinion on Hungary’s Status Law, according to which unilateral measures are in tune with the requirements of international law provided they, inter alia, do not breach the territorial sovereignty of States, the principle of pacta sunt servanda, as well as the principle of friendly relations among States. Yet, for this to work effectively, it needs the ambition by all actors to comply with these normative values.


This article is, particularly with regard to its Georgia-focused parts, based on a prior rigorous engagement with the topic in Benedikt Harzl, “Passportizatsiya revisited: Extraterritorial naturalization in the cases of Abkhazia and South Ossetia”, 58(1) Archiv des Völkerrechts (2020), 73–101. This book chapter does not seek to reproduce but, when necessary, briefly recalls some of the findings discussed more in detail in the journal article.


Art. 3(1) European Convention on Nationality of 6 November 1997 proclaims: “Each State shall determine under its own law who are its nationals”.


European Convention on Nationality, Strasbourg, 6 November 1997, Art. 2.


Convention on Certain Questions relating to the Conflicts of Nationality Laws, 1930, Art. 1.


Conclusion of European Council, 20 June 2019.


This term is not a legal term of art. It is a political term broadly describing the heavily criticized practice of conferring citizenship en masse abroad to individuals not residing on the territory of that very State even if it still requires an application filed by the individual seeking to become naturalized.


See Georgia v. Russia [gc], App. no. 38263/08, Judgment of 21 January 2021, para. 147, 156, 169–170.


Ronald Asmus, A Little War that Shook the World (St. Martin’s Press, Palgrave Macmillan, New York, 2010), 42.


Principle 11 of osce/hcnm Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations, 2 October 2008, available at This practice is also called “weaponization” of international law.


Several States in the cee region have adopted expansive citizenship laws allowing affinity and cultural-based preferential treatment for external kin-nationals without requiring residence in the State. In 2010 alone, more than 300,000 third country nationals of Hungarian ethnic origin obtained Hungarian citizenship. See Szabolcs Pogonyi, Extra-Territorial Ethnic Politics, Discourses and Identities in Hungary (Palgrave Macmillan, London, 2017), 66. The EU had been criticized for failing to contest these ethnically-based citizenship laws prior to EU enlargement; see Timofey Agarin, “Conclusion: Is it Time to Cut the Umbilical Cord?” in Timofey Agarin and Ireneusz Pawel Karolewski (eds.), Extraterritorial Citizenship in Postcommunist Europe (Rowman & Littlefield, London, 2015), 197–213, at 200.


For more, see Stefan Talmon and Mary Lobo, “The Russian policy of ‘passportisation’ in Ukraine’s Donetsk and Lugansk regions as a violation of the sovereignty of Ukraine”, GPIL German Practice in International Law (9 July 2020), available at; Anne Peters, “Passportisation: Risks for international law and stability – Part I”, ejil:Talk! (9 May 2019), available at; Anne Peters, “Passportisation: Risks for international law and stability – Part II”, ejil:Talk! (10 May 2019), available at


The cases of Transnistria and Nagorno-Karabakh are intentionally not covered in this contribution. Even if they would enrich the ongoing debate, including these cases would have unduly overburdened this already comparatively longer chapter. Apart from this, the cases of Eastern Ukraine and Abkhazia and South Ossetia are interesting and well-chosen insofar as they differ in terms of their legal analysis.


James A. Green, “Passportization, Peacekeepers and Proportionality: The Russian Claim of the Protection of Nationals Abroad in Self-Defence”, in James A. Green and Christopher P.M. Waters (eds.), Conflict in the Caucasus, Implications for International Order (Palgrave Macmillan, London, 2010), 54–79, 67.


Nationality Decrees Issued in Tunis and Morocco (French Zone) on 8 November 1921, Advisory Opinion, 1923 p.c.i.j. (ser. B) No. 4, at 24 (Feb. 7), at 28.


Art. 1 reads “it is for each state to determine under its own law who are its nationals”.


icj, Nottebohm (Liechtenstein v Guatemala, Judgment of 18 November 1953.


Nottebohm, ibid., 23.


Ibid., 24.




Just consider the hostility of the Austrian citizenship act vis-à-vis dual citizenship which is built around the fixed idea of preventing multiple citizenships. The law requires an applicant for naturalization to relinquish their citizenship before obtaining Austrian citizenship, making them temporarily even stateless. Precisely such a case is currently subject to a preliminary ruling of the ecj.


There may be one exception: Art. 5 1958 Convention on the High Seas, preceding Art. 91 (1) 1982 UN Convention on the Law of the Sea prescribes that a “genuine link” must exist between a ship and a State purporting to confer its nationality upon that ship. Yet, it must be noted that drawing analogies with individuals is problematic as ship nationality follows a different logic. It helps to maintain an orderly system of identification for ships on the high seas and provides protection that only flag States offer. Ships, as “inanimate objects” thus do not share any of the characteristics which were critical for the icj in Nottebohm. See: David F. Matlin, “Re-evaluating the Status of Flags of Convenience under International Law”, 23 Vanderbilt Journal of Transnational Law (1991), 1017–156, 1025 and 1034.


Under Art. 14, States are even required to allow dual citizenship for children born to parents with different nationalities. Additionally, the Council of Europe’s Parliamentary Assembly Recommendation 1081 (1988) regarding problems of nationality in mixed marriages recommends that children born to mixed marriages should also be entitled to require and keep the nationality of both their parents.


See e.g., Art. 7 2006 ilc Articles on Diplomatic Protection: “A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim” (ilc, Draft articles on Diplomatic Protection, 2006, available at


See Kochenov’s seminal blogpost on the “Tjebbes Fail” in which he tears to pieces the dogma of – what he rightly refers to as – the “absurd genuine link logic”. Dimitry Kochenov, “The Tjebbes Fail”, 4(1) European Papers (2019), 319–336, available at


Admittedly, the term “kin State” is not a precise legal term. See: Karin Traunmüller, “‘Kin-States’ and ‘Extraterritorial Naturalization’ – Some Reflections Under International Law”, 18 Austrian Review of International and European Law (2013), 99–152, at 99. Uncertainties prevail: With regard to South Ossetia and Abkhazia, using the term “kin” is problematic in relation to Russia, as neither Abkhaz nor Ossetians regard Russians as their ethnic kin.


It is noteworthy that these developments did not occur in isolation; Russia adopted quite early the Federal Law “About the State Policy of the Russian Federation in Regard to Compatriots Living Abroad” (Federal Law 179–fz of 23 July 2010), echoing this approach.


For more, see George Schöpflin, “Citizenship and Ethnicity: The Hungarian Status Law”, in Zoltán Kántor, Balázs Majtényi, Osamu Ieda, Balázs Vizi, Iván Halász (eds.), The Hungarian Status Law: Nation Building and/or Minority Protection (Slavic Research Center, Hokkaido University, Hokkaido, 2004), 87–104, 88.


Selim Kurt, “A Possible Drawback in Romanian-Hungarian Relations: Historical Region of Transylvania”, in Pınar Yürür, Arda Özkan (eds.), Conflict Areas in the Balkans (Lexington Books, Lanham, 2020), 163–182, at 172.


As Hungary was an EU candidate State at that time, it could not simply ignore Austrian concerns. Thus, the Hungarian minority in Austria was deleted from the initial list of beneficiaries. See: Carmen Kettley, “Ethnicity, Language and Transition Politics in Romania: The Hungarian Minority in Context”, in Farimah Daftary and Francois Grin, Nation-Building, Ethnicity and Language Politics in Transition Countries (Open Society Institute, Budapest, 2003), 243–266, 262.


Croatia has seen a particularly interesting practice in granting citizenship to the “Bunjevci” of Serbia. A simple statement of one’s ethnicity was sufficient. That only changed in the 2000s, when those individuals were required to furnish proof as a precondition for naturalization. See: Dejan Stjepanović, “Claimed Co-ethnics and Kin-State Citizenship in Southeastern Europe”, 14 Formerly Global Review of Ethnopolitics (2015), 140–158, 152.


One may consider in this respect the case of Romania and Moldova. Romania has been at the forefront of relaxing its citizenship regulations in respect to citizens of Moldova, with the result that currently a staggering almost ten percent of all Moldovan parliamentarians also possess Romanian citizenship. Szabolcs Pogonyi, Extra-Territorial Ethnic Politics, Discourses and Identities in Hungary (Palgrave Macmillan, London, 2017), 32.


Traunmüller, op.cit. note 25, at 111.


Ibid., 112.


However, the problematic gray zone of the effect of unilateral action in between lawfulness and unlawfulness is nicely captured in one sentence: “When the law specifically aims at deploying its effects on foreign citizens in a foreign country, its legitimacy is not so straightforward. It is not conceivable, in fact, that the home State of the individuals concerned should not have a word to say on the matter.” See: Venice Commission, “Report on the Preferential Treatment of National Minorities by their kin-State”, adopted by the Venice Commission at its 48th Plenary Meeting (Venice, 19–20 October 2001).


“Preferential treatment may be granted to persons belonging to kin-minorities in the fields of education and culture, insofar as it pursues the legitimate aim of fostering cultural links and is proportionate to that aim.”, ibid.


Under the auspices of the osce High Commission on National Minorities, between 1996 and 2019, practitioners, experts and scholars have compiled nine comprehensive thematic guidelines and recommendations ranging from national minorities in inter-State relations (“The Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations”, 2 October 2008) to linguistic rights of national minorities (“Oslo recommendations”, 1998). They are all available at


Bolzano/Bozen recommendations, ibid., para. 1.


Ibid., para. 10.


Ibid., para. 11.


Adoption of the Maastricht Treaty (entered into force 1993), see Treaty on European Union, oj c 191, 29.7.1992, 1–112.


Dimitry Kochenov, “A Real European Citizenship: A New Jurisdiction Test: A Novel Chapter in the Development of the Union in Europe”, 18(1) Columbia Journal of European Law (2011), 55–110, 65–66.


See Resolution by the Assembly of the Council of Europe 1335 (2003), entitled “Preferential treatment of national minorities by the kin-state: the case of the Hungarian law of 19 June 2001 on Hungarians living in neighbouring countries (“Magyars”)”, 25 June 2003.


Andrei P. Tsygankov, Russia’s Foreign Policy. Change and Continuity in National Identity (Rowman & Littlefield, Lanham, 2016), 125.


It must not be forgotten in this context that practically all successor States of the Soviet Union chose not allow dual citizenship in their citizenship laws. This can without too much difficulty also be interpreted as a political attempt to shift away from the Russian orbit.


Thomas Simon, “Citizenship as a weapon”, 17(3–4) Citizenship Studies (2013), 505–524, 516.


Quote translated by the author and found in: Elena Smirnova, Mezhdunarodno-pravovye problemy grazhdanstva stran SNG I Baltii v svete evropejskogo opyta (Izd-vo ipe, Moscow, 1999), 76. However, it should not be swept under the carpet that judge Kovler was a rather outspoken on the bench of the ECtHR who had not only been finding against Russia in a number of high-profile cases but who had also been very candid about lack of compliance with the echr in Russia. See e,g., Anatoly I. Kovler, “European Convention on Human Rights in Russia: Fifteen years after”, in Iulia Motoc and Ineta Ziemele (eds.), The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives (Cambridge University Press, Cambridge, 2016), 351–372, 370.


Stanislav Chernichenko, “Protection of kin-minorities: International standards and Russian legislation”, in European Commission for Democracy Through Law (ed.), The Protection of National Minorities by their Kin-State (Science and technique of democracy No. 32, Athens, 7–8 June 2002), 189–195,






In analyzing Russian approaches to international law, Mälksoo argues that it would be rather naïve to believe that there are no constraints on scholars in Russia in the way they formulate international law positions. See: Lauri Mälksoo, Russian Approaches to International Law (oup, Oxford, 2015), 82.


Ibid., 103.


Art. 2 fcnm reads: “The provisions of this framework Convention shall be applied in good faith, in a spirit of understanding and tolerance and in conformity with the principles of good neighbourliness, friendly relations and co-operation between States.” See Framework Convention for the Protection of National Minorities, Strasbourg, 1 February 1995, European Treaty Series – No. 157.


It took until 31 July 1992 for Georgia to be admitted to the UN (see UN General Assembly Resolution 46/241, 31 July 1992). O’Keefe argued that the admission of Georgia and Moldova, which was also affected by separatism, at that time “appreciably indulged” the admission criteria of Art. 4(1) UN Charter. See: Roger O’Keefe, “The Admission to the United Nations of the Ex-Soviet and Ex-Yugoslav States”, 1(1) Baltic Yearbook of International Law (2001), 167–189, at 175. Even then, both Abkhazia and South Ossetia were beyond the effective control of the then-Georgian government. For more details on citizenship and State succession in the Georgian conflict cases, see Harzl, op.cit. note 1, at 82–86.


In the Abkhazian conflict, both sides agreed under Russian brokerage, in Geneva in December 1993 and January 1994, on the Memorandum of Understanding between Georgian and Abkhazia (S 1993/26875, 15 December 1993, Letter from the Permanent Representative of Georgia to the United Nations addressed to the President of the Secretary-General) The Georgian-Ossetian conflict was primarily settled in 1992 with the Agreements on Principles of Settlement of the Georgian Ossetian conflict (“Sochi Agreement”).


It was admitted within these borders to the UN on 31 July 1992, whereby both South Ossetia and Abkhazia were considered to be part of that State. See: Angelika Nußberger, “South Ossetia”, Max Planck Encyclopedias of International Law [mpil], Oxford Public International Law (online) (January 2013), para. 12.


This is similar to Moldova’s declaration, which reads that “until the full re-establishment of the territorial integrity of the Republic of Moldova, the provisions of the Convention will be applied only on the territory effectively controlled by the authorities of the Republic of Moldova”. Available at:


Federal Law of the rsfsr No. 1948-1-fz of 28 November 1991.


Ibid. Yet, interestingly, the recently amended Art. 67.1 para 1 Russian Constitution suggests both concepts for Russia and thus confuses two rather opposite concepts in international legal doctrine, which, according to Mälksoo, signifies a “pragmatic decision and essentially suggests that the Russian Federation intends to use both concepts interchangeably and strategically, depending on the context.” See: Lauri Mälksoo, “International Law and the 2020 Amendments to the Russian Constitution”, 115(1) American Journal of International Law (2021), 78–93, 84.


That was possible due to the amendment of 1993, which was criticized by other successor States of the ussr. Shevel argues that initial expansive citizenship policies were meant for ethnic Russians abroad to be theoretically eligible and to have a feeling of security, which means less likelihood of migrating to Russia. See Oxana Shevel, “The Politics of Citizenship Policy in Post-Soviet Russia”, 28(1) Post-Soviet Affairs (2012), 111–147, at 123.


Given the partly undesirable migration to Russia, Putin was reportedly also convinced that the rules must be tightened and that the perceived “open-door” policy must come to an end, Shevel, ibid., at 134.


Federal Law No. 62-fz of 31 May 2002, adopted by the State Duma on 19 April 2002, approved by the Council of the Federation on 15 May 2002, amended and supplemented on 11 November 2003 and 2 November 2004 (Statutes of the Russian Federation (Sobranie Zakonodatel’stva Rossiyskoy Federatsiy)) 2002, No. 22, p. 2031; 2003, No. 46, p. 4447). The third amendment was signed into law by the President in January of 2006, official publication on 3 January 2006 (and 11 January 2007), available at Immigration and Refugee Board of Canada, Russia: Russian Citizenship Law signed into law by the President in January 2006, 1 March 2007. RUS102357.E. Online. unhcr Refworld, available at


Traunmüller, op.cit. note 25, at 118.


Eric Lohr, Russian Citizenship: From Empire to Soviet Union (Harvard University Press, Cambridge, 2012), 186.


Toru Nagashima, “Russia’s Passportization Policy toward Unrecognized Republics”, 66(3) Problems of Post-Communism (2019), 186–199, 190.


Gordienko Anatolii, “Yuzhnaya Osetiya – eto uzhe Rossiya”, Nezavisimaya Gazeta (17 September 2004), available at; Igor’ Glanin, “V Abkhazii pochti ne ostalos’ gruzinskikh grazhdan”, Vremya novostey (13 August 2003), available at


See Federal Law, No. 62-fz of 31 May 2002 On Citizenship of the Russian Federation, available at the residence prerequisite of five years pursuant to Art. 13(1)a was skipped in this case. It bears noting that in other publications, the legal base for passportization was seen to be fulfilled in Art. 14(4). See e.g., Mats Cuvelier, Passportization in International Law: Theory and Practice of Large Scale Extraterritorial Conferrals of Nationality, 2018, Master Thesis, Ghent University, available at


Nagashima, op.cit. note 64, 190.


Eric Lohr, Russian Citizenship: From Empire to Soviet Union (Harvard University Press, Harvard, 2012), 267; See also Franziska Smolnik, Secessionist Rule: Protracted Conflict and Configurations of Non-state Authority (University of Chicago press, Chicago, 2016), 132.


Lohr, ibid., at 187.


The Abkhazian citizenship law discriminates on ethnic grounds as it indirectly prevents ethnic Georgians from obtaining Abkhazian citizenship. See: Tom Trier, Hedvig Lohm and David Szakonyi, Under Siege: Inter-Ethnic Relations in Abkhazia (Hurst and Company, London, 2010), 82–83. See also Roman Petrov, Gaga Gabrichidze, Paul Kalinichenko, “Constitutional Orders of Non-Recognized Entities in Georgia and Ukraine. Can façade Constitutions Ensure Adequate Protection of Human Rights?”, 45 Review of Central and East European Law (2020), 92–125.


See Art. 21(1) lit c of the Georgian citizenship law: “A Georgian citizen shall lose Georgian citizenship if he/she: acquires foreign citizenship, except as provided for in Art 21-1 of this Law.” Art. 21(1) allows retention of Georgian citizenship only if an individual secures consent prior to acquiring their new citizenship.


“A nationality which is that of an unrecognised ‘state’ is not a true nationality in the international sense, and need not be recognised in other countries.” Robert Jennings, Arthur Watts, Oppenheim’s International Law, Vol. 1 part 1 (Longman House, Harlow, 9th ed., 1992), at 854.


Treaty on Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Republic of South Ossetia (17 September 2008) (in Russian), Art. 8, available at; Treaty on Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Republic of Abkhazia (17 September 2008) (in Russian), Art. 8, available at


Treaty on Alliance and Strategic Partnership between the Russian Federation and the Republic of Abkhazia (24 November 2014) (in Russian), Art. 13 and Treaty on Alliance and Integration between the Russian Federation and the Republic of South Ossetia (18 March 2015) (in Russian).


See the critical account by Kochenov of the Tjebbes case: Dimitry Kochenov, op.cit note 24.


Still, as Georgia lost control of the breakaway regions of Abkhazia and South Ossetia, it was difficult for the inhabitants of these areas to reject Georgian citizenship by formal declaration within the short term of three months due to insufficient institutional structures, strained relations with Tbilisi and the overall political atmosphere. The same applies to possible later renunciation. Those wishing to formally relinquish their Georgian citizenship could face an unduly excessive burden.


In the parlance of Crawford, the ilc’s work particularly in this context is “part of a process of customary law articulation”. See: James Crawford, “The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect”, 96(4) American Journal of International Law (2002), 874–890, 890.


“Rights in Retreat. Abuses in Crimea”, Human Rights Watch (17 November 2014), available at In addition, Crimean residents were forced to relinquish their Ukrainian citizenship; failing to do so has resulted in many cases of dismissal from employment. See: Alisa Gdalina, “Crimea and the Right to Self-Determination: Questioning the Legality of Crimea’s Secession from Ukraine”, 24 Cardozo Journal of International & Comparative Law (2016), 531–563, at 563.


ohchr, “Report on the Human Rights Situation in Ukraine” (15 April 2014), para. 73, found in Thomas D. Grant, “The Annexation of Crimea”, 109(1) The American Journal of International Law (January 2015), 68–95, at 86–87.


Agnia Grigas, Beyond Crimea: The New Russian Empire (Yale University Press, New Haven, London, 2016), 121.


For more, see Sergey Sayapin, Evhen Tsybulenko (eds.), The Use of Force against Ukraine and International Law. Jus Ad Bellum, Jus in Bello, Jus Post Bellum (Springer, Heidelberg, Berlin, 2019).


For more, see inter alia the chapter by Roman Petrov in this volume. See also Michael Kofman, et al., “Lessons from Russia’s Operations in Crimea and Eastern Ukraine” (2017), 73, available at


See Protocol on the outcome of consultations of the Trilateral Contact Group, signed in Minsk, 5 September 2014, available at (Original: Russian); (English translation).


See “Package of Measures for the Implementation of the Minsk Agreements”, agreed by the Trilateral Contact Group at the Summit in Minsk on 12 February 2015, available at


“OSCE frowns at Russia’s recognition of L/DNR passports”, (20 February 2017), available at


See the comment of the American UN ambassador Nikki Haley: “Russia’s recognition in recent days of purported passports and other illegitimate documents distributed by Russian backed separatists in Ukraine’s Donetsk and Luhansk regions is another direct challenge to efforts to bring peace to eastern Ukraine.”, unsc, 7886th meeting, 21 February 2017, s/pv.7886.


Recognition was adopted by the so-called ““Presidential Decree on the Recognition by the Russian Federation of Documents and Registration Numbers of Vehicles Issued to Citizens of Ukraine and Stateless Persons Permanently Residing in the Territories of Certain Districts of the Donetsk and Luhansk Regions of Ukraine”. Tymur Korotkyi and Nataliia Hendel, “The Legal Status of the Donetsk and Luhansk ‘Peoples’ Republics’”, in Sergey Sayapin, Evhen Tsybulenko (eds.), The Use of Force against Ukraine and International Law. Jus Ad Bellum, Jus in Bello, Jus Post Bellum (Springer, Heidelberg, Berlin, 2019), 145–172, 155.


Thomas Hoffmann and Archil Chochia, The institution of citizenship and practices of passportization in Russia’s European neighbourhood policies”, in Thomas Hoffmann and Andrey Makarychev (eds.), Russia and the EU – Spaces of Interaction (Routledge, London, New York, 2020), 223–237, 232.


Available at


Fabian Burkhard, “Russland’s ‘Passportisierung’ des Donbas”, 58 swp-Aktuell (2020), 1, available at


“The decree of the President of the Russian Federation on a simplified procedure for acquiring citizenship of the Russian Federation by Ukrainian citizens living in the temporarily occupied territories of Donetsk and Luhansk regions is another unprecedented interference by the Russian Federation in the internal affairs of an independent state, a brutal violation of sovereignty, territorial integrity and independence of Ukraine and a complete trampling upon its obligations in the framework of the Minsk agreements.” See Statement by former Ukrainian president Petro Poroschenko, 24 April 2019, available at


For a detailed analysis, see Talmon and Lobo, op.cit. note 11.


Franco-German statement on the situation in Ukraine, Federal Foreign Office of Germany, 25 April 2019, -ukraine/2213370.


Talmon and Lobo, op.cit. note 11.


“Granting Russian passports to Ukrainian citizens is a violation of Ukraine’s sovereignty”, Statement by Mr. François Delattre, Permanent Representative of France to the United Nations Security Council (25 April 2019), available at


Grant, op.cit. note 79, at 92.


Peters (Part ii), op.cit. note 11. This is also arguably in line with EU policies. As stated by the EU Ambassador to Russia, Markus Ederer, Crimeans who obtained Russian passports after the annexation of Crimea will be unable to get a Schengen visa to Europe. See “No Schengen Visas for Crimeans Who Obtained Their Passports After Crimea’s Annexation”, Shengenvisainfo News (23 July 2019),


Georgia Republic Criminal Laws, Regulations and Procedures Handbook Volume 1, 26; see also: “Human Rights in the Occupied Territories of Georgia”, Information Note by the Delegation of Georgia, osce Review Conference – Human Dimension Session, Warsaw, 30 September–8 October 2010, For more details concerning the legal assessment in the case of Georgia, see also Harzl, op.cit. note 1, 91–99.


Collectively stripping the nationality of certain individuals or entire groups is a more common unlawful practice by States (See Saddam Hussein’s Decree 666 determining the loss of citizenship of Feyli Kurds in 1980); a coerced imposition of citizenship is equally unlawful, see ECtHR, Kuric v Slovenia, App. No. 26828/06, Judgment of 26 June 2012. Such a situation may in practice concern, for instance, those residents of Crimea who wish to retain their Ukrainian citizenship. They find themselves in a comparable position to the applicants in Kuric. See also: Regional Centre for Human Rights, Ukrainian Helsinki Human Rights Union, Expert-analytical group chrot, Crimea beyond Rules. Right to nationality (citizenship) (Ukrainian Helsinki Human Rights Union, 2014), 13.


Anne Peters, “Extraterritorial Naturalizations: Between the Human Right to Nationality, State Sovereignty and Fair Principles of Jurisdiction”, 53 gyil (2010), 624–725, 692.


See: Harzl, op.cit. note 1, at 91.


It is important to consider that some of these blockades were imposed by Russia.


Attempts have been made to provide these people with neutral travel documents, yet these initiatives were thwarted, often by the Georgian side. See Smolnik, op.cit. 68, at 132.


Peters (Part i), op.cit. note 11.


Nagashima, op.cit. note 64, at 188.


Gatis Pelnens (ed.), The Humanitarian Dimension of Russian Foreign Policy Toward Georgia, Moldova, Ukraine and the Baltic States (Centre for East European Policy Studies, Riga, 2009), 120.


That includes reports about ethnic Georgians being faced with the choice of accepting either Russian or Abkhazian/South Ossetian nationality or being forced into exile and giving up their homes. See osce, “Human Rights in the Occupied Territories of Georgia”, Information Note, 18 October 2010, available at This concern has also been echoed by the Parliamentary Assembly of the Council of Europe, See: Parliamentary Assembly of the Council of Europe, Resolution 1683: The war between Georgia and Russia: one year after; 29 September 2009. To recall: Abkhazian citizenship law only allows dual citizenship if the other citizenship is Russian, see Art. 6 Abkhazian citizenship law.


It is estimated that about ten percent of the Georgian population in Abkhazia claim to be in possession of Russian identity documents. See: Vincent Artman Passport Politics’: Passportization and Territoriality in the De Facto States of Georgia, Master’s thesis, 2011, University of Oregon, 144, available at Although this number seems low, it is still quite stunning, because – as Markedonov aptly argues – Russia is not interested in supporting Abkhazia’s ethnocratic policy which discriminates against its own citizens. That also applies to ethnic Georgians residing in Abkhazia who are Russian citizens. See: Sergey Markedonov, “The conflict in and over Abkhazia”, in Anton Bebler (ed.), “Frozen conflicts” in Europe (Barbara Budrich Publishers, Opladen, Berlin, Toronto, 2015), 71–106, 104.


In this context, the the outstanding analysis by Karin Traunmüller is of particular interest for the structure of this sub-chapter (Traunmüller, op.cit. note 25).


This has also been recognized by the Tagliavini Commission: “The strict requirement of a Nottebohm-type genuine or effective link for all cases of naturalisation would unduly limit and curtail the conferring state’s sovereign right to confer its nationality upon persons according to its own rules.” See Independent International Fact-Finding Mission on the Conflict in Georgia (“Tagliavini Commission”), Report, Volume ii, p. 159, available at


Traunmüller, note 25, 133.


Otto Luchterhandt, “Völkerrechtliche Aspekte des Georgien-Kriegs”, 46 Archiv des Völkerrechts (2008), 435–480, 466.


James Crawford, The Creation of States in international law (oup, Oxford, 2006), 52. For more, see: Traunmüller, op.cit. note 25, at 133, 134.


Ibid., 134.


Contemporary figures speak of about 3.7 Million inhabitants, although it is unclear whether these figures include the numbers from Abkhazia and South Ossetia. Either way, the numbers would not be significant, considering around 250,000 extraterritorially naturalized inhabitants.


Malcolm M. Shaw, International Law (cup, Cambridge, 2014), 211.


See: pcij, Austria-German Customs Case (Series A/B, No. 41, 1931; 6 ad), p. 26.


This principle is firmly established as ius cogens, reflected in several treaties and customary international law.


UN General Assembly Resolution 2625, 24 October 1970.


See this requirement as mentioned in the icj Nicaragua Case, para. 205. For further info: Christopher C. Joyner, “Coercion in international law”, Max Planck Encyclopedias of International Law [mpil], Oxford Public International Law (online) (December 2006).


“There is no clear consensus in international law as to when coercive measures are improper, despite relevant treaties, declarations, and resolutions adopted in international organizations which try to develop norms limiting the use of such measures”, see UN Secretary-General, “Economic Measures as a Means of Political and Economic Coercion against Developing Countries: Note by the Secretary–General”, 25 October 1993, UN Doc A/48/535, Agenda Item 91(a), at 1). Still, international law confirms the prohibition of coercion as a customary rule, which is also enshrined in Art. 52 of the Vienna Convention on the Law of Treaties (vclt).


Traunmüller, op.cit. note 25, 138.


For instance, Georgia regularly sponsors resolutions within the UN General Assembly concerning the right to return of all internally displaced persons to Abkhazia and South Ossetia. See, e.g., Resolution adopted by the General Assembly on 3 September 2020 “Status of internally displaced persons and refugees from Abkhazia, Georgia, and the Tskhinvali region/South Ossetia, Georgia”. In other words: Georgia seems determined to remain on this political path.


Notably, the principle of good faith has generated some criticisms as it seems too abstract and too ambitious. See Joyner, op.cit. note 120, at para. 26. For a more detailed analysis of Russia’s obligations under the principle of good faith, see Harzl, op.cit., note 1, at 96–98.


According to Shaw, international law is prone to situations where no law precisely governs a certain incident. Hence, “In such instances the judge will proceed to deduce a rule that will be relevant, by analogy from already existing rules or directly from the general principles that guide the legal system, whether they be referred to as emanating from justice, equity or considerations of public policy (…).”, Shaw, op.cit. note 116, at 98. General principles do not strictly feature as formal sources of international law, but yield significant material value.


UN General Assembly Resolution 2625, op.cit. note 119. The bona fides principle is also reflected in a vast number of other repositories in international law (UN Charter, vclt and other Treaties). The principle of duty to cooperate is much more pronounced in international environmental law.


This was harshly criticized by the European Parliament: European Parliament Resolution B5-0056, 0058, 0064, 0071, 0076 and 0081/2001 on the visa regime imposed by the Russian Federation on Georgia (18 January 2001) oj C262/259.


Anne Peters, “Extraterritorial Naturalizations: Between the Human Right to Nationality, State Sovereignty, and Fair Principles of Jurisdiction”, 53 German Yearbook of International Law (2010), 623–725, 705.


Erik Lohr, Russian Citizenship: From Empire to Soviet Union (Harvard University Press, Cambridge, 2012).


“De facto stateless persons are persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country.”, Hugh Massey, “Legal and Protection Policy Research Series. UNHCR and De Facto Statelessness”, Division of International Protection (April 2010), 61, available at


Art. 1A(2) 1951 Refugee Convention provides that the term refugee applies to anyone who “… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as results of such events is unable or, owing to such fear, is unwilling to return to it.” See Convention Relating to the Status of Refugees, 28 July 1951. Some even argue that the very term de facto statelessness lacks a firm basis in international law. See: Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (Hart Publishing, Oxford/Portland, 2016), 101.


Russia could not argue on the basis of a nationality option in the wake of State succession, as conferral of nationality en masse only occurred more than ten years after the collapse of the ussr, See: Kristopher Natoli, “Weaponizing Nationality: An Analysis of Russia’s Passport Policy in Georgia”, 20 Boston University International Law Journal (2010), 389–417, at 409.


The duty to protect minority communities has often been the subject of a bilateral approach: They could have tried to conclude bilateral treaties like the 1995 and 1996 treaties on good-neighborliness between Hungary and Slovakia or Hungary and Romania (Ari Bloed and von Dijk, Protection of Minority Rights Through Bilateral Treaties – the Case of Central and Eastern Europe (Brill Nijhoff, Leiden/Boston, 1999), 370–377). Also reflected in Art. 3 of Bozen/Bolzano Recommendations; a bilateral approach was also chosen for South Tyrol in the 1949 Treaty between Austria and Italy.


In particular, in 2018 Ukraine has amended its Constitution quite symbolically by adding clauses on Euro-Atlantic integration in order to “formalize the irrevocability of the strategic course of Ukraine”. See: Roman Petrov, “The Impact of the Court of Justice of the European Union on the Legal System of Ukraine”, in Arie Reich, Hans W. Micklitz (eds.), The Impact of the European Court of Justice on Neighbouring Countries (oup, Oxford, 2020), 173–198 197.


Peters (Part i), op.cit. note 11.


The Vienna Institute for International Economic Studies recently estimated that the reconstruction of Donbas will at least cost 21,7 billion usd. See: “Ukraine: reconstruction of Donbas will cost at least usd 21.7 billion or 16% of Ukraine’s gdp” (25 June 2020), available at


Under Art. 4 Constitution of Ukraine – and relatively unusual for the most supreme normative document – only sole Ukrainian citizenship is permitted in the country. This may be interpreted as visible defiance on the basis of the most supreme normative document against Russia, which is compounded by Art. 1 Ukrainian citizenship law, which allows dual citizenship only in accordance with international treaties with other States as well as Art. 19 of this law, which provides a ground for loss of Ukrainian citizenship if a Ukrainian citizen is naturalized voluntarily, available at


Freedom House. 28 January 2019. “Crimea.” Freedom in the World 2019.


Yulia Gorbunova, “Crimea: ‘Not Our Home Anymore’”, Human Rights Watch (3 May 2017), available at


“Die Lage der Menschenrechte auf der Krim“, Report of the Human Rights Assessment Mission on Crimea (6–18 July 2015), 17 September 2015, available at,


Again, the right to move to Russia, to study and work there can serve as a strong incentive for individuals from this war-torn region to apply for Russian citizenship. This, however, does not apply to pensioners. According to the pension fund of the Russian Federation, individuals who are naturalized under the fast-track procedure are only eligible for a Russian pension if they physically move to Russia. See:


See e.g., the “Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation” of 31 May 1997, which obliges both sides to respect each other’s territorial integrity and reaffirms the inviolability of existing borders (Art. 2); Likewise, the earlier Budapest Memorandum of 7 December 1994 was a political agreement designed along these contours (See: UN General Assembly/Security Council A/49/765; S/1994/1399 of 19 December 1994).


Lance Davies, “Russia’s ‘Governance’ Approach: Intervention and the Conflict in the Donbas”, 68(4) Europe-Asia Studies (2016), 726–749, 737. Yet, it still needs to be stated that the dominant Ukrainian view, which fully conflates the de facto leadership of dpr and lpr with Russia, is neither helpful nor entirely accurate. See: icg Report, “Rebels without a Cause: Russia’s Proxies in Eastern Ukraine”, Europe Report N°254 (16 July 2019), 19.


Korotkyi and Hendel, op.cit. note 87, at 161.


Ian Brownlie, “The Relations of Nationality in International Law”, British Yearbook of International Law 1963, oup 1965, 339. Quote found in: Eric Fripp, “Passportisation: Risks for International Law and Stability – Response to Anne Peters”, ejil:Talk! (30 May 2019), available at -stability-response-to-anne-peters/.


Brownlie, ibid.


Fripp, op.cit. note 145.


One may even be inclined to call international law, in the parlance of Kelsen, “primitive law”.


Peters (Part ii), op.cit. note 11.


Consider the illegal war against Iraq, which amounted to an act of aggression by the USA. If narrowly applied, the ex iniuria principle would have precluded recognition of the Iraqi government installed by US occupation forces. However, the Iraqi government was recognized even by States which initially protested against the war.


Harpaz has advocated for a more flexible approach towards these entities and called for a relaxation of the EU’s commitment to “strict observance of international law.” See Guy Harpaz, “The European Union’s Conflict-Resolution Policy in Georgia: The Way Forward”, in European Foreign Affairs Review 23, No. 2 (2018), 243–262.


Lance Davies, Russian Conflict Management and European Security Governance: Policy and Practice (Rowman & Littlefield, Lanham, 2020), 46.


“Medvedev on events in Abkhazia, South Ossetia 12 years ago: ‘declaration of war on Russia’”, Tass (8 August 2020), available at


Mälksoo, op.cit note 50, at 133.


Likewise, no plans seem to be on the table as to annexation of these territories into the Russian Federation. See: icg Report, op.cit. note 143, at p. i.