After Alyosha: Baltic Citizenship Requirements Twenty Years After the Fall of Soviet Communism

• Author: Charles E. Brasington
• Position: J.D. Candidate, The University of Iowa College of Law, May 2011
• Pages: 197-238

After Alyosha: Baltic Citizenship Requirements Twenty

Years After the Fall of Soviet Communism

Charles E. Brasington*

I. INTRODUCTION ......................................................................................... 198

II. HISTORICAL CONTEXT ............................................................................. 201

III. CITIZENSHIP — THEORY AND SUBSTANCE ............................................ 203

A. Jus Soli .............................................................................................. 205

B. Jus Sanguinis ................................................................................... 205

C. The Human Rights Model as an Alternative Approach .................. 207

D. International Case Law .................................................................... 205

E. Conclusion ......................................................................................... 210

IV. BALTIC CITIZENSHIP LAWS .................................................................... 211

A. Estonian Naturalization Requirements ........................................... 212

B. Latvian Naturalization Requirements ............................................. 215

C. Lithuanian Naturalization Requirements ....................................... 217

V. BALTIC STATES’ HUMAN RIGHTS OBLIGATIONS ...................................... 219

A. United Nations Conventions ............................................................ 220

B. European Human Rights Conventions ............................................ 225

C. Conclusion ......................................................................................... 229

VI. STATE PRACTICE .................................................................................... 229

A. United States ..................................................................................... 230

B. Europe ................................................................................................ 231

VII. CONCLUSION......................................................................................... 236

* J.D. Candidate, The University of Iowa College of Law, May 2011; M.A. Candidate, The

University of Tartu Centre for Baltic Studies. The author would like to thank Vania Draguieva

for her love and support, Sten Andresen and family for their friendship and hospitality in

Estonia, Felix Münch for his comments and contributions to this Note, Anastasija Snicarenko for

help locating Latvian sources, William and Elizabeth for their honest opinions, and his parents,

without whom none of this would be possible. This Note is de dicated to the memory of Ned

Willis, Class of 1948, who fostered his love of law, and James P. Brasington, whose company he

misses on a daily basis.

198 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 20:197

I. INTRODUCTION

On April 27, 2007, the Estonian government removed the “Bronze

Soldier” monument—known to Balts and Russians as “Alyosha”—from

Tallinn’s city center.1 A number of Russian speakers immediately rioted; 2

Russian Foreign Minister Sergei Lavrov denounced the removal as

“inhuman.”3 On May 2, members of Molodezhnoye demokraticheskoye

antifashistskoye dvizhenye “Nashi” (Youth Democratic Anti-Fascist

Movement “Ours!”), a Russian nationalist organization, attacked the

Estonian embassy in Moscow and began camping by the Estonian border to

harass border traffic.4 Estonian President Toomas Hendrik Ilves called the

rioters “criminals,” asserting that “[a]ll this had nothing to do with the

inviolability of graves or keeping alive the memory of men fallen in World

War Two.”5

This was just another unfortunate episode in a long line of controversies

originating with the liberation of the Baltic States of Estonia (“Eesti”), Latvia

(“Latvija”), and Lithuania (“Lietuva”) after forty years of Soviet occupation.

Politicians, international lawyers, and scholars have debated Baltic

citizenship policy since the beginning of the independence period.6

This Note examines whether the current citizenship laws of Estonia,

Latvia, and Lithuania comply with international law, as identified by Article

1 Russia Enraged as Estonia Takes Down Soviet War Memorial, GUARDIAN (Apr. 27, 2007, 11:50

AM), http://www.guardian.co.uk/world/2007/apr/27/russia [hereinafter Russia Enraged].

Estonians and Russians colloquially refer to the Bronze Soldier as “Alyosha,” a Russian name.

Estonian Wrestler Confirmed as Model for Controversial Soviet Statue, HELSINGIN SANOMAT,

http://www.hs.fi/english/article/Estonian+wrestler+confirmed+as+model+for+controversial+Sovie

t+statue/1135227259036 (last visited Feb. 24, 2011). “Alyosha” is a common colloquial name for

war memorials in the former Eastern Bloc that may derive from the name of the main character

in the Oscar-nominated Sov iet film Ballad of a Soldier. FELIX MÜNCH, DISKRIMINIERUNG DURCH

GESCHICHTE? DER DEUTUNGSSTREIT UM DEN „BRONZENEN SOLDATEN“ IM POSTSOWJETISCHEN

ESTLAND [DISCRIMINATION BY MEANS OF HISTORY? THE CONFLICT OVER THE MEANING OF TH E

“BRONZE SOLDER” IN POST-SOVIET ESTONIA] 17–18, n.12 (2008) (a thoroughly researched history

of the monument and current dispute).

2 Ian Traynor, EU Protests over Russian Attacks on Ambassadors, GUARDIAN (May 2, 2007, 6:52

PM), http://www.guardian.co.uk/world/2007/may/02/eu.russia [hereinafter EU Protests].

3 Russia Enraged, supra note 1.

4 EU Protests, supra note 2. The protesters also attacked the Swedish ambassador shortly after

he visited the besieged Estonian embassy. Id.

5 Luke Harding, Protest by Kremlin as Police Quell Riots in Estonia, GUARDIAN, Apr. 29, 2007,

available at http://www.guardian.co.uk/world/2007/apr/29/russia.lukeharding.

6 The citizenship topic tends to elicit emotional responses and strong language from several

scholars. See Mark Holzapfel, Note, The Implications of Human Rights Abuses Currently

Occurring in the Baltic States Against the Ethnic Russian National Minority, 2 BUFF. J. INT’L L.

329, 372 (1996) (stating that Estonian and Latvian policymakers “solicit a Russian invasion”); see

generally Richard C. Vis ek, Creating the Ethnic Electorate Through Legal Restorat ionism:

Citizenship Rights in Estonia, 38 HARV. INT’L L.J. 315 (1997) (placing Eston ian arguments in

quotation marks throughout the majority of the article).

Spring 2011] AFTER ALYOSHA 199

38(1) of the Statute of the International Court of Justice (“ICJ”).7 Specifically,

this Note considers applicable U.N. and European Conventions as well as the

specific citizenship laws of the United States and EU Member States.8 Part II

briefly lays out the history of the Baltic States and their citizenship policy.

Part III examines the concept of citizenship. Part IV examines Baltic

citizenship law. Part V addresses the relevant U.N. and European human

rights conventions. Part VI evaluates state practice by considering U.S.,

German, Luxembourgish, and Danish citizenship laws. Finally, Part VII

concludes that, although Baltic citizenship laws do not violate international

law, restrictive citizenship policies may continue to undermine stability in

the Baltic region.

Importantly, this Note will not examine the claims of state continuity or

the possible linguistic rights of stateless persons after gaining citizenship.9

For the sake of argument, this Note assumes that the twenty-year restriction

of citizenship is a fait accompli10 on the part of the Baltic States.1 1

7 Statute of the International Court of Justice art. 38(1), July 26, 1945, 59 Stat. 1031, T.S. no.

993 [hereinafter ICJ Statute]. The ICJ Statute identifies the sources of international law as:

a. international conventions, whether general or particular,

establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as

law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the

teachings of the most highly qualified publicists of the various nations, as

subsidiary means for the determination of rules of law. Id.

8 As to terminology , many conventions, court decisions, and scholarly articles often use the terms

“citizenship” and “nationality” interchangeably. This Note will use the terms “citizenship” and

“citizen” in the main body, but will leave “nationality” and “national” in quoted text.

9 These considerations are beyond the scope of this Note. For useful sources on state continuity,

compare INETA ZIEMELE, STATE CONTINUITY AND NATIONALITY: THE BALTIC STATES AND RUSSIA

— PAST, PRESENT AND FUTURE AS DEFINED BY INTERNATIONAL LAW (2005), with LAURI MÄLKSOO,

ILLEGAL ANNEXATION AND STATE CONTINUITY: THE CASE OF THE INCORPORATION OF THE BALTIC

STATES BY THE USSR (2003).

10 Fait accompli translates to “a deed accomplished.” BLACK’S LAW DICTIONARY 676 (9th ed.

2009).

11 Two alternative theories concerning state succession are ex iniuria ius non oritur [law does not

arise from illegal acts] and ex factis ius oritur [law arises from facts]. Ruta M. Kalvaitis, Note,

Citizenship and National Identity in the Baltic States, 16 B.U. INT’L L.J. 231, 243, 248–49 (1998).

Kalvaitis notes:

[T]here is a clash between the doctrines of ex injuria ius non oritur and ex

factis ius oritur—although the Baltics’ incorporation into the Soviet Union

was an illegal act from the outset and remained illegal, it was fact for fifty

years and must be addressed by lawmakers, not ignored. Id. at 248–49.

Ex factis ius oritur is certainly an interesting theory, but the concept must be adequately defined

on some principled basis. Otherwise, schol ars will be able to apply the ex factis ius oritur

rationale to justify the present status of any long-term conflict, for instance, arguing that the

denial of citizenship for twenty continuous years makes the deprivation legally valid.