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State Continuity and Nationality: The Baltic States and Russia. Past, Present and Future as Defined by International Law. By Ineta Ziemele. Leiden: Martinus Nijhoff Publishers, 2005. Pp. 424+xxv, index and bibliography. $162.00.

Reviewed by Dr. Yaël Ronen.

 

State Continuity and Nationality discusses the relationship between two areas of international law.  One is changes to territorial status. The other is the international regulation of nationality. This relationship is addressed by reference to a specific situation, namely the restoration of independence of the Baltic States in the early 1990s. However, what emerges from the analysis may be applicable to other situations.

 

In the early 1990s the Baltic States – Estonia, Latvia and Lithuania – became independent after half a decade of incorporation into the Soviet Union. The three States claimed that they were regaining independence following illegal annexation, and that they were, constitutionally and internationally, the continuation of the pre-1940 States, rather than newly independent. This claim was largely accepted by the majority of States, many of whose position concerning the 1940 annexation was at best vague. One of the major difficulties with which the three States grappled in the years immediately following the dissolution of the Soviet Union and in fact are still not entirely resolved, is the grant or refusal of nationality to various population groups. Generally speaking, all three States automatically considered as nationals those persons who were nationals on the day of annexation and their descendants (with Lithuania excluding residents in third States who have in the meantime acquired other nationalities). As a result, large populations in these three States, primarily immigrants from the Soviet era and their descendents, were not considered nationals and were at most eligible for naturalization under various procedures. The difficulties faced by those individuals are not unrelated to the policy adopted by the Russian Federation, which generally considered automatic nationals only former nationals of the Soviet Union resident in its territory.

 

Ineta Ziemele (now a judge of the European Court of Human Rights) argues that the regulation of nationality cannot be considered separately from the issue of territorial change. She examines this proposition in the context of the Baltic States as incidents of continuity through reversion to independence, and of the Russian Federation as an incident of continuity following boundary changes.

 

Part 2 of the book (following the introduction) focuses on the territorial status issue. It begins with a detailed description of the claims and practice of the Baltic States and the Russian Federation. It establishes that both the Baltic States and the Russian Federation claimed continuity both constitutionally and internationally, albeit of differing types. The international reaction to these claims – upholding them – is also reviewed.

 

Classification of situations within the category of State succession, for example as ones of continuity or identity, is a difficult one. It is marked by both doctrinal differences and the uncertainty as to the underlying facts of individual cases. The discussion of claims and practice is therefore followed by an analysis of the significance of State continuity in international law, doctrinally and with reference to other situations of territorial change.

 

Ziemele classifies the Baltic States as cases of continuity in a situation of reversion after a period of “extinction”, and regards the Russian Federation as a case of continuity following territorial changes that do not involve the extinction of a State. She identifies a presumption of continuity which governs incidents of territorial changes. From this results general continuity of relevant rights and obligations.

 

Part 3 of the book turns to the matter of nationality. It opens with a detailed analysis of the legislative provisions on nationality in each of the four States. It then elaborates on the regulation of nationality in international law, generally and particularly in situations of territorial change. Ziemele identifies the presumption of continuity of nationality, on the basis of the continuity of statehood.

 

Ziemele then compares the practice of the Baltic States and the Russian Federation against the presumption of continuity. First she finds that the practice in all Baltic States to limit automatic nationality to pre-1940 nationals is, on the whole, in conformity with the principle of continuity, with the possible exception of the Lithuanian exclusion. In contrast, she finds that the Russian practice does not conform with the principle of continuity, under which all Soviet nationals, regardless of residence, should have been automatically regarded as Russian nationals.

 

Part 4 of the book adds another element to the analysis of the situation in the Baltic States and the Russian Federation. This is the introduction of international human rights aspects. Ziemele considers three pertinent rights and principles: the right to nationality, the prohibition on discrimination, and the principle of reduction of statelessness. She points out that all three standards have a limiting effect on States’ competence in determining their nationals. A discussion of the legal situation in the Baltic States and Russian Federation in view of these standards follows, including an assessment of the relationship between international law and domestic law in each and of the substantive relevant human rights guarantees provided under each domestic legal system.

 

In this part of the book Ziemele also considers the interaction of the applicable human rights obligations with the principle of continuity. She points out that the right to nationality does not obligate a State to grant nationality to a specific individual, but rather to make the acquisition of nationality a realistic possibility. The principle of continuity, on the other hand, appears to dictate more compellingly the right of a specific individual to a specific nationality. Ziemele concludes that insofar as the right to nationality was concerned, the Baltic States acted in conformity with the principle of continuity. The apparent denial of nationality to immigrants of the Soviet era, most of which were not ethnic Balts, was therefore not a discriminatory measure, but one consistent with international law. With regard to those persons, the appropriate question was whether the procedures for naturalization are consistent with human rights. Here the principles of non-discrimination and reduction of statelessness, which do not obligate a State to grant its nationality, have a key role. The procedures in the Baltic States have been criticized for being overly stringent, particularly in requiring applicants to demonstrate a high level of command of the national language. This impeded many Soviet-era immigrants from naturalization until the requirements were relaxed.

 

As to the Russian Federation, Ziemele concludes that under the principle of continuity it was obligated to grant its nationality of former Soviet nationals, especially if they otherwise remained stateless. It failed to do so. However, the Russian naturalization procedures were exceptionally simple, so that many difficulties could be avoided in practice.

 

Ziemele has taken on the analysis of two elusive topics. State Continuity as an aspect of the general category of State succession continues to bog international lawyers, while nationality concerns the interaction between international and domestic law. She has admirably managed to elucidate many aspects of both, and to present their interplay as a matter of theory and practice. This is an excellent addition to literature that appeared in the 1990s following the dissolution of the Soviet Union and Yugoslavia, focusing largely on treaty law, as well as to existing literature on nationality as an aspect of human rights, which is often limited to an almost exclusively doctrinal analysis of treaty law.

 

One issue that appears to be lacking is the interaction between the Baltic States and the Russian Federation. Many of the problems that arose regarding nationality in the Baltic States in the 1990s arose with regard to individuals who found themselves ineligible for nationality under none of the domestic laws. This raises the question of the relationship between the Baltic and the Russian legislations. Not that any special relationship was necessarily called for. But in view of the practical problems, it would have been interesting to learn to what extent each State took account of the other’s policy, and what claims, if any, were put forward by each with regard to the obligations of the other.

 

Another shortcoming of the book is partly linked to its structure. First, it is striking that the practical and political difficulties which underlie it are barely mentioned except in the second to last chapter. Although Ziemele argues that the Baltic States’ nationality policy is well-grounded in international law, when a response is provided (in this case to claims regarding the Baltic States’ nationality policy), it is worth clarifying the question which it addresses. A brief description of the practical difficulties, even if not the political ones (which Ziemele plays down) that arose with regard to nationality in the 1990s would have been helpful to those who are not intimately familiar with the matter.

 

The same problem, of not clarifying the pertinence of an argument or a fact, also appears within each part of the book. In each of the topics – State continuity, nationality and human rights - there is a doctrinal discussion and a separate discussion of the facts relating to the Baltic States and the Russian Federation. These are followed by an assessment of the facts against doctrine. Such a structure would have been excellent, had it not been for the massive amount of details provided. The doctrinal discussion of State continuity reads in some parts as a literature review. The description of individual nationality laws is very detailed, without any pointers as to why the specific provisions are mentioned. This results in the impression that these descriptions are simply indiscriminate paraphrasing of domestic legislation. Nonetheless, the assessment that then follows assumes that the legislative provisions mentioned earlier have certain implications, without those implications having been spelt out. As a result, the reader must revert to the preceding chapters to locate the provision referred to and then infer its implication to which the assessment refers. This difficulty clearly arises from the ambitious - and otherwise successful – undertaking of providing a comprehensive account of practice. Finally, when examining other State practice regarding nationality and State succession, it is not clear what analogies are made. For example, in describing the practice regarding Germany and Austria, one may assume that German legislation is comparable to Russian legislation, but it then appears that the question is the Austrian policy towards German legislation, presumably in comparison with the Baltic States’ position on Russian legislation. However, as pointed out above, this matter is not addressed in the book. Again, clarifying the relevance of the argument would have assisted the reader in following it.

 

In sum, the book presents a clear argument that is convincingly supported through the detailed analysis of a wealth of factual information. It addresses the many aspects that affect the issues and thus provides a comprehensive discussion of the issues. The reliance on sources in Baltic languages and Russian enables the English speaker an insight into a world that until recently has been a mystery.