Estonia’s Obligations to its Stateless Population
Jennifer P. Nelson, Vol. 37 Associate Editor
In regaining its independence in 1991, Estonia embarked on a political and legal restoration of its national identity in the wake of the Soviet Union’s collapse. Focused on turning back the clock to a more pristine pre-WWII Estonian Republic, the legislature thus decided on November 6, 1991 that citizenship of the newly independent State would be extended only to those who were citizens of the pre-war Estonia and to their descendants. By 1992, the country’s Citizenship Act from 1938 had been re-enacted to actively exclude Soviet-era settlers while simultaneously granting automatic citizenship to those who were Estonian citizens prior to the Soviet takeover in 1940 and their descendants. As a result, a large portion of Estonia’s population suddenly transitioned from holding Estonian citizenship to being “individuals with undetermined citizenship”. While such a label is widely used in Estonian political discourse to refer to the mostly ethnic Russians and other Russian-speaking minorities who lost their official citizenship overnight, “individuals with undetermined citizenship” is not legally defined. Instead, the law and the global community recognize these individuals as stateless persons as defined by the 1954 Convention relating to the Status of Stateless Persons (“1954 Convention”) and the 1961 Convention on the Reduction of Statelessness (“1961 Convention”). Under international law, an individual is de jure stateless if she “is not considered as a national by any State under operation of its law.” Statelessness is a phenomenon born out of human rights abuse which further breeds vulnerability and abuse. De jure statelessness often arises out of discriminatory policies against minority groups according to ethnic, religious, or racial identity, or on the basis of gender. Stripped of citizenship, stateless persons lack a formal, legal identity. Such a lack of official citizenship usually means that states will not recognize a legal responsibility to protect those who are stateless or to ensure many civil, political, economic, and social rights. In a similar way, international instruments, and in particular international human rights instruments, which purport to protect individuals across the globe based on their belonging to the human race, are widely ineffective in protecting the rights of stateless persons because such instruments rely on state protection. Consequently, stateless persons are excluded from protections extended to individuals because they are excluded from protections extended to those considered citizens of a state. In recognizing the severe suffering statelessness engenders, the 1954 and 1961 Conventions were enacted. They serve as the only global conventions specifically focused on protecting stateless people around the world as well as preventing and reducing statelessness. Unfortunately for the estimated 10 million stateless people in the world, however, few states have ratified or acceded to the Conventions. Estonia, for example, is not a party to either Convention nor is it a party to the Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession or the European Convention on Nationality. Instead, Estonia takes the view that “there are no stateless persons in Estonia, just a number of individuals with undefined citizenship”. Despite Estonia’s refusal to recognize this disenfranchised population with the correct international legal terminology, the fact remains that approximately 454,000 adults in Estonia, or almost 40% of the population, were rendered stateless under the country’s 1992 citizenship laws. Despite such blatant disregard for the status of such a large portion of its population, Estonia nevertheless recently amended its problematic citizenship laws to improve access to nationality for those of “undetermined citizenship.” Amended on January 22, 2015, the new law will improve access to nationality for children under 15 years old and people over the age of 65 when it comes into effect on January 1, 2016. Under the new law, stateless parents who have resided in Estonia for at least five years no longer have to apply for Estonian citizenship for their under-fifteen child even if the child was born in Estonia. Instead, such children will receive Estonian citizenship automatically at the moment of birth without application and parents will have the right to refuse such a granting of citizenship during the one-year period following birth. Additionally, those of “undetermined citizenship” over the age of 65 will be able to take an oral language exam rather than a written one as part of the naturalization process under the new amendments. While such changes to the country’s discriminatory laws should be recognized as improvements, it still remains to be decided whether Estonia is fulfilling its international and regional legal obligations to stateless individuals. Regardless of whether Estonia recognizes its stateless population as stateless, and regardless of whether Estonia has signed on to specific instruments tackling statelessness, there remain certain human rights standards to which Estonia can be held accountable which legally require Estonia to recognize and address statelessness in a comprehensive manner. For instance, Estonia is a party to the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of All Forms of Discrimination Against Women. Furthermore, as member of the Council of Europe, Estonia is automatically a party to the European Convention on Human Rights (“ECHR”). While such international and regional conventions may not speak directly to statelessness, they cover relevant rights that are endangered by statelessness and should be viewed in the context of combatting statelessness as a form of human rights abuse. Moreover, “many of the [1954 Convention’s] rights are qualified by the nature of the individual’s presence in the country, to the extent that related provisions in international human rights law treaties may be more helpful,” especially because the Conventions do not clearly stipulate certain rights such as the right of residency or to nationality. Indeed, there is a strong argument which suggests that the ECHR obliges European states to determine statelessness “in order to fulfill their obligations under — at least — Articles 3, 5, 8, 13, and 14 of the [ECHR],” concerning the right to be free from torture and inhuman and degrading treatment; the right to liberty and security; the right to respect for private and family life; the right to an effective remedy; and the right to be free from discrimination. Such arguments have found traction in the European Court of Human Rights even though the ECHR does not explicitly recognize the right to nationality. Beyond the European realm, however, those international legal instruments to which Estonia is a party should also be recognized as requiring further action on the part of Estonia to not only recognize but also to protect stateless people. After all, “the underlying principle of non-discrimination in international human rights law does not preclude any distinctions between citizens and others.” Accordingly, the whole gamut of international human rights instruments taken in the context of relating to various aspects of rights abuse associated with being stateless requires certain standards be met by states regardless of whether they are party to the 1954 and 1961 Conventions. Even so, it must be recognized that the only legal instruments which require the prevention and reduction of statelessness are those to which Estonia is not party. Therefore, even if Estonia can be held to be legally obliged to recognize its stateless population and protect their rights accordingly under the instruments to which it is a party, any complementary obligation to prevent statelessness is much more difficult to argue for. That is, of course, unless the mere rendering of statelessness is ever recognized in and of itself as a true form of human rights abuse.
 Aleksei Semjonov, Jelena Karzetskaja & Elena Ezhova, Ending Childhood Statelessness: A Study on Estonia 1 (Apr. 2015)(on file with the European Network on Statelessness).  Id.  Id.  United Nations Convention Relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S. 117; United Nations Convention on the Reduction of Statelessness, Aug. 30, 1961, 989 U.N.T.S. 175.  United Nations Convention Relating to the Status of Stateless Persons, supra note 4, at 6.  Mark Manly, Laura van Waas, Adrian Berry & Laurie Fransman, The Impact of International Law and Current Challenges 2 (Chatham House, 2014).  Id.  Ruma Mandal & Amanda Gray, Out of the Shadows: The Treatment of Statelessness under International Law 5 (Chatham House, 2014).  United Nations High Commissioner of Human Rights, Who is Stateless and Where?, UNHCR, http://www.unhcr.org/pages/49c3646c15e.html (last visited Oct. 6, 2015).  Semjonov, supra note 1, at 2. Id. at 1.  Eestlased Eestis, Riigikogu simplifies granting Estonian citizenship to children and elderly, Estonian World Review (Jan. 22, 2015), http://www.eesti.ca/riigikogu-simplifies-granting-estonian-citizenship-to-children-and-elderly/article44181.  Id.  Id.  International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171; Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3; International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195; Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.  Caia Vlieks, Strategic Litigation: An Obligation for Statelessness Determination under the European Convention on Human Rights? 1 (European Network on Statelessness, 2014); European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221.  Mandal, supra note 8, at 4.  Vlieks, supra note 16, at 27.  Id. at 1.  Mandal, supra note 8, at 3.