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” monumentknown 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] 1718, 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. INTL 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. INTL 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.” BLACKS 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. INTL L.J. 231, 243, 24849 (1998).
Kalvaitis notes:
[T]here is a clash between the doctrines of ex injuria ius non oritur and ex
factis ius orituralthough 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 24849.
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.

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