Kochenov: The Status of a ‘Non-Citizen’ of Latvia: Second-Rate Citizenship?

Prof. Dr. Dimitry Kochenov, University of Groningen

8 November 2016

While the majority of countries in the world tend to grant only one, single, nationality to their citizens, two well-known exceptions occur: one at the level of status (the formal legal attachment to the state), and the other at the level of rights (the entitlements that the status brings). The UK, with an array of different citizenship categories, leads the pack of status differences; and China and Israel, with different categories of travel documents for citizens depending on residence, provide examples of differentiation at the level of rights. Latvia offers an interesting addition to this exceptions camp, as its second nationality is not even called such, the legislator opting for a ‘non-citizen’ status, but which, upon closer analysis, amounts to nothing else but a second category of citizenship of the Latvian Republic.

For historical reasons, the weight of guilt by association for Soviet aggression against the tiny Latvian Republic has been borne by the ethnic minorities whose families settled in its territory after the Second World War. For such minorities, a special legal status has been created by the Latvian state: they are the ‘non-citizens’ of Latvia, unless they naturalize. This status is now held by more than 250,000 people belonging to ethnic minorities — a large share of the population of a tiny state — and this situation is self-perpetuating: ‘non-citizens’ are born every day.

Legally speaking, ‘non-citizenship of Latvia’ is a nationality without a right of political participation. To the bearers it brings a large array of rights traditionally associated with citizenship, including the unconditional right to enter Latvian territory, to remain, and to build a life there: work, non-discrimination and permanent residence are all included in the package. Most importantly, this status is inheritable. It thus definitely does not imply ‘classical’ statelessness in the sense of international law. The Latvian Constitutional Court clarified that the status of ‘non-citizens’ is a ‘new, up to that time unknown category of persons’ (Latvian Constitutional Court, Case No. 2004-15-0106, para. 15), but was careful not to describe them in terms of Latvian nationality, despite the durable connection with the Latvian government and many of the associated rights and obligations of nationals.

Crucially, while a number of differences in Latvian law persist in the treatment of citizens and ‘non-citizens’, two particularly important distinguishing features of the latter status can be outlined. The first of the two is full exclusion from elections. To vote, naturalization is required. The second is full exclusion from the enjoyment of European Union (EU) citizenship rights in the territory of the EU, which Latvia joined more than 10 years ago on 1 May 2004.

Without EU membership, thus, the difference in rights would be solely political in essence, but joining the EU gave Latvian citizens the right to work and reside in all the EU’s member states, radically distinguishing this status from ‘non-citizens’. The quality of the two statuses is radically different, as the Quality of Nationality Index shows, ‘non-citizen’ of Latvia is by far the worst European nationality. A recent article published in the Houston Journal of International Law argues that EU citizenship could be extended to the ‘non-citizens’ of Latvia by a simple unilateral declaration. Legally speaking, it is very easy to remedy an important part of the discrepancy between the two Latvian statuses of nationality, which stigmatizes the minorities by extending to them guilt by association. EU citizenship rights originate in the EU, not in individual member states, allowing the characterization of the legal status of EU citizenship as ‘autonomous’ from the legal orders of the member states of the EU, as per Advocate General Poiares Maduro (AG Opinion in Case C-135/08 Rottmann, para. 23).

It is up to the Latvian government to extend EU rights to the holders of the ‘non-citizen’ status, thereby granting them EU-wide work, residence, and non-discrimination rights. All it takes is to re-classify the ‘non-citizens’ of Latvia as nationals of Latvia for the purposes of EU law and thereby turning them into EU citizens overnight and dealing, at least in part, with one of the shameful legacies of Latvian post-Communist transition.

For more information on the Quality of Nationality Index, please visit nationalityindex.com. To read the academic paper cited in this article, please go to http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2351181

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