Statelessness: ‘democracy not for everybody’, and how to fight it


On 10 December, within the framework of the Conference on the Future of Europe, the Forgotten Europeans online conference was held, which addressed the issue of the stateless permanent residents of Estonia and Latvia.

Among the participants of the conference were MEPs Yana Toom (Estonia) and Nils Ušakovs (Latvia), human rights advocates Laura van Waas (Netherlands), Boriss Cilevics (Latvia) and Kari Käsper (Sweden), and lawyers of the European Parliament Aleksejs Dimitrovs and Vadim Poleštšuk (Belgium), with the latter acting as moderator.

As noted by Yana Toom, the goal of the conference was to collect and submit to the Conference on the Future of Europe any proposals, the implementation of which would allow stateless permanent residents of Estonia and Latvia to become citizens of the EU and receive corresponding rights, such as the right to freedom of movement and the right to participate in European elections. Yana Toom is sure that this will only be possible in a federal Europe: ‘I am a supporter of a more federal Europe, which has longer reach, and which can regulate something without becoming hostage to ethnic selfishness.’

Nils Ušakovs agreed with his colleague: ‘The only way to solve the problem is to have a more federal Europe. We must fight for the EU to have a unified regulation that concerns ethnic and linguistic minorities.’ According to Ušakovs, the emergence of people without citizenship (so called ‘non-citizens’) in Latvia and Estonia was a fraud, which has had a very painful impact on hundreds of thousands of people who continue to love their homeland. The reason for the fraud was a cynical calculus: to prevent these people from voting in elections to the local parliament, to the European Parliament and, in the case of Latvia, to local governments. ‘This fraud had ruined our ‘karma’. Estonia ten did something to remedy the situation, but Latvia, unfortunately, has not even done that. It is very important to understand that we cannot change the situation regarding the stateless permanent residents in Estonia and Latvia on our own. And if we manage to raise the problem of stateless people in any form at the Conference on the Future of Europe, this will already be a great success for our countries.’

The MEPs also universally agreed on the absurdity of the notion that the naturalisation of the stateless permanent residents of Estonia and Latvia without additional conditions would somehow represent a threat to national security. In fact, the threat to security, social security, is precisely in the fact that these are stateless people, and not their transformation into citizens.

Nightmare 30 years later

Laura van Waas, founder and co-director of the Institute of Statelessness and Inclusion, the first and only non-profit organisation to promote the right to nationality and the rights of stateless people, cited alarming statistics. There are about 15 million stateless persons in the world today, and they all live without many rights, including the right to influence the politics of their country. In Europe, there are more than 500 000 stateless persons, more than half of whom are the stateless people of Estonia and Latvia. Even worse, children become stateless in Europe because of the doctrine of jus sanguinis, the ‘right of blood’, where children acquire nationality from their parents.

‘Nationality provides us with a community that recognises our belonging to it, shapes our identity, provides us with a place called ‘home’ where we are entitled to live our lives, provides us with a government that is responsible for our protection and is accountable to us. Nationality is the gateway to rights and services, as well as to political participation, allowing us to shape the laws and policies that affect us. In the European Union, nationality is even more important, as it is a key to EU citizenship, which is another layer of rights,’ said Laura van Waas.

Kari Käsper, Associate Legal Officer at the Representation for the Nordic and Baltic Countries of the United Nations High Commissioner for Refugees (UNHCR), spoke about the legal aspect to the issue. The UNHCR has a mandate to identify stateless people, prevent and reduce statelessness around the world and protect the rights of stateless people. ‘The Universal Declaration of Human Rights says that everyone has the right to a nationality. The UNHCR defines statelessness under the 1954 Convention relating to the Status of Stateless Persons: a stateless person is anyone who is not considered a national by any State under the operation of its law. There is also the 1961 Convention on the Reduction of Statelessness,’ Käsper said.

Käsper emphasised that Estonia is the only country among all the Scandinavian and Baltic countries that has not joined either of the two conventions on statelessness. ‘Throughout the EU, there are three non-aligned countries: Estonia, Cyprus and Poland. The only solution that the UNHCR sees is the facilitation of naturalisation. The current rate of naturalisation is completely unsatisfactory: at this rate, the solution of the problem will take decades, or even half a century. There is some progress, however. For example, Estonia and Latvia have done something to reduce the number of stateless children, although they could have done more. And, of course, Estonia must join the conventions. In Latvia, there are more than 200 000 stateless persons, and there are more than 70 000 such persons in Estonia: in total, this is more than there are stateless persons not only in Scandinavia and the Baltic States, but in the rest of the EU. For comparison: there are 27 000 stateless persons in Finland, although the population of Finland is much larger than in Latvia and Estonia,’ Käsper noted.

In 2014, the UNHCR launched the IBelong campaign with the ambitious goal of eradicating statelessness worldwide within 10 years. It is already clear that this will be impossible, but some results have been achieved: since the beginning of the campaign, 800 000 stateless persons have acquired a nationality. The first country in the world that has managed to eradicate statelessness is Kyrgyzstan.

Member of the Latvian Parliament and Chairman of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, former human rights activist Boriss Cilevics is sure that statelessness is not a problem of stateless persons themselves and not one of Estonia and Latvia alone; he regard it as being an EU-wide problem. At one time, there was a forgery: until the autumn of 1991, the very concept of the ‘restored citizenship’, or successor citizenship, was a marginal idea proposed by the so-called Citizens’ Committees. The Popular Front of both Estonia and Latvia opposed this idea and proposed a different, more inclusive approach, although the wording was deliberately loose. International law did not offer a ready-made recipe, but the restored citizenship was seen solely as a temporary solution. As one of the experts who visited Latvia in the early 1990s said to Boriss Cilevics many years later: ‘Even in a nightmare, we could not have imagined that 25 years would pass, and hundreds of thousands of stateless people would still be present in the Baltics.’

In Latvia, Cilevics noted, ‘non-citizens’ are considered as a separate category and are excluded from the definition of stateless persons, although the local ‘non-citizens’ meet the definition of stateless persons under international law. Estonia’s approach is more flexible: its national law avoids calling ‘non-citizens’ stateless, but Estonia does object when others do.

‘Today, 30 years later, statelessness is a problem of quality of Baltic democracy,’ Cilevics said. ‘Because ‘democracy not for everybody’ creates a precedent: if stateless people can be ignored and excluded, why not other groups? Statelessness undermines loyalty and trust between the state and its residents. Therefore, Baltic statelessness is a problem of the European Union, of its legitimacy and effectiveness. After the accession of Estonia and Latvia, statelessness became a part of the entire EU, and now its institutions themselves become victims of this democratic deficit. Therefore, the EU must take up the issue and find the solution. In particular, the EU should consider extending the interpretation of EU citizenship beyond the current definition as merely ‘citizenship of some member states’. The stateless people of Estonia and Latvia are Europeans. The question is how to reflect it legally, in legal terms.’

As Vadim Poleštšuk, Policy Adviser at the European Parliament (Renew Europe), emphasised, although statelessness arises because of the application of laws, the emergence of stateless people is almost always associated with political considerations, which means that it is not easy to eradicate statelessness without political will, whether at the level of Estonia and Latvia or at EU level.

Three paths to eradicating statelessness

Aleksejs Dimitrovs, legal advisor for the Greens/EFA Group in the European Parliament, spoke about specific ways of solving the problem. The traditional understanding of EU citizenship is citizenship attached to nationality of a member state. Is it possible to find space within this concept for stateless people, and for the stateless people of Latvia and Estonia in particular? Dimitrovs believes that this can be achieved and sees three ways to solve the problem.

As a first option, a country itself can declare that its stateless persons are EU citizens for the purposes of EU law. There has already been such a precedent: at one time the United Kingdom declared that, for the purposes of EU law, certain categories of its residents would be qualified as EU citizens, while others not. Particularly, residents of Gibraltar were not nationals of the United Kingdom; however, in order to implement one of the judgements by the European Court of Human Rights, the United Kingdom decided to treat them as EU citizens.

Nothing prevents, for example, Latvia from doing the same. At the same time, non-citizens of Latvia would not have acquired the rights under domestic law, say, the right to participate in local parliamentary elections, but they would have acquired the rights of EU citizens, such as the right to free movement within the EU and the right to participate in European elections. The Latvian Constitutional Court showed the openness of this concept by ruling in one case in 2003 that the question of whether the stateless people of Latvia would become EU citizens belonged within the competence of the parliament. That is, the Latvian parliament could make such a decision. Whether this option is applicable in Estonia is a question: in Latvia, being stateless is a special legal status, while, in Estonia, it is not. But, in the opinion of Aleksejs Dimitrovs, the Estonian parliament (Riigikogu) could decide to declare that a certain category of the country's residents has European rights.

The second option, albeit an unlikely one, is to give stateless people some of the rights enjoyed by EU citizens. Here Dimitrovs referred to the case of ‘Spain vs. The United Kingdom’ in the European Court of Human Rights, when Spain argued that the right to participate in European elections should belong only to EU citizens (that is, to nationals of the EU member states), and the court ruled that this right was not exclusive. Yes, indeed, citizens of an EU member state vote in European elections, but the member states can also grant this right to other categories of their residents.

There is also a precedent: only EU citizens could send petitions to the European Ombudsman, but the European Parliament decided to extend this right to all permanent EU residents. The European Parliament and the Council of the EU can grant certain categories of people the rights associated with European citizenship.

And the third option is to use the concept of long-term residence under Directive 2003/109, according to which, after five years of permanent residence in the territory of an EU member state, third country nationals, including also stateless persons, could get certain rights normally associated with EU citizenship, such as the right to non-discrimination and free movement across the EU. The European civil initiative called Minority SafePack included a proposal to give stateless persons this status without any additional procedures, e.g., without assessing income (which is required by the directive) and without fulfilling integration requirements (in Latvia, to obtain this status, you also need to pass a language exam). The European Commission, unfortunately, did not support this initiative, but the European Parliament could put some pressure on the European Commission to act in this direction.

Can the EU take a radical step and simply grant the status of EU citizens to the stateless people of Latvia and Estonia? The European Court in one famous case concluded that citizenship issues fall within the competence of the local legislator, but when deciding on the withdrawal of nationality of the country, which means the withdrawal of EU citizenship, the member states are bound by the principles of European law. ‘Nothing prevents us from concluding,’ said Aleksejs Dimitrovs, ‘that when granting nationality (and EU citizenship), member states are also bound by the principles of European law.’

The EU cannot decide that nationality should be given to stateless persons. But the EU can decide which ways of granting nationality are not good or not good enough. Currently, the European Parliament is preparing a report on so-called ‘golden visas’, also known as ‘citizenship and residence for investment’ schemes, with the aim of outlawing such schemes. That is, in certain cases, the EU intervenes and says that no; such and such a method of naturalisation does not comply with the general principles of the EU. In theory, the EU can say this about the means of the naturalisation of permanent residents of the country through a language exam, as opposed to the naturalisation of recently arrived migrants, who would still have to take such an exam.

‘The most radical way would be to detach EU citizenship from nationality of member states and attach it to long-term residence on the territory of the EU, so the issue would be resolved both for the stateless permanent residents of Estonia and Latvia and those of other countries,’ concluded Aleksejs Dimitrovs.

The conference participants also answered the online questions received.

The online conference was organised by MEP Yana Toom under the auspices of Renew Europe, the third largest group in the European Parliament, which brings together more than one hundred MEPs from 23 EU countries to defend European values and liberal principles. The online conference was held within the framework of the Conference on the Future of Europe.

You can watch and listen to the entire conference (in Russian, English and Estonian) here.