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Hebrew University
Yael Ronen [postdoctoral fellow, Minerva Center for Human Rights, Hebrew University] STATUS OF SETTLERS IMPLANTED BY ILLEGAL REGIMES UNDER INTERNATIONAL LAW

Electronic copy available at: http://ssrn.com/abstract=1280364
The Hebrew University of Jerusalem
Faculty of Law
Yaël Ronen *
* Postdoctoral fellow, Minerva Center for Human Rights, Hebrew University in Jerusalem,
Email: yael.ronen@cantab.net.
October, 3, 2008
Published by the International Law Forum of the Hebrew
University of Jerusalem Law Faculty
Editor: Dr. Tomer Broude
Assistant Editor: Yonatan Berman
To subscribe, free of charge, contact:
This paper can be downloaded free of charge
Research Paper No. 11-08
September 2008
Electronic copy available at: http://ssrn.com/abstract=1280364
Yaël Ronen∗
This article concerns settlers introduced into a territory under a territorial regime that is
illegal under international law. Such regimes usually take one of two forms. One is of entities
which effectively operate as States and claim statehood on the basis of acts unlawful under
international law; the other is established States which act as sovereigns over areas outside
their recognized national territories, in violation of international law. The article focuses on
one specific phenomenon associated with illegal regimes, namely the introduction or
implantation of large settler populations into the territory under dispute.
Illegal regimes often transfer of their own populations or populations loyal to them
into the territory, and subsequently grant these populations residence or nationality in the
territory. This is done in order to change the demographic composition of the territory
under dispute and thereby solidify the regime.
The article examines this phenomenon at a specific moment, namely when the illegal
regime is replaced by a lawful one. The legal power of the lawful, post-transition regime to
reverse the acts of the illegal regime by removal of settlers may be limited in various ways.
There may be an obligation to give effect to whatever status the illegal regime conferred
upon the settlers, on the basis of the law of occupation or of the law of non-recognition.
Expulsion may also be limited by the operation of human rights law and standards applicable
to long-term residents, in regardless of the original impermissibility of their arrival in the
The article studies in depth six cases of transition from an illegal regime to a lawful
one. In five of them the process of transition to a legal regime has been completed: the
transition from Ian Smith’s regime in Rhodesia to independent Zimbabwe (1980), Namibia’s
transition from South African administration to Independence (1990), the restoration of the
independence of the Baltic States following the annexation by the Soviet Union (1991),
South Africa’s transition from apartheid to democracy and the elimination of the TBVC
States (Transkei, Bophuthatswana, Venda and Ciskei) (1994), and East Timor’s
independence following Indonesian annexation (2002). The sixth case is the prospective
reunification of the Republic of Cyprus with the Turkish Republic of Northern Cyprus
(TRNC), which has yet to take place but has been negotiated in detail.
Part 2 sets out the historical and legal circumstances of each of the cases examined.
Part 3 focuses on potential constraints on expulsion of settlers based on the status of the
settlers. Part 4 focuses on constraints on expulsion of settlers arising from substantive
human rights law. Part 5 concludes by comparing the practice in the various cases
investigated by reference to the parameters established earlier.
∗ © Yaël Ronen, Postdoctoral fellow, Minerva Center for Human Rights, Hebrew University in Jerusalem.
Email: yael.ronen@cantab.net. Research for this study was generously funded by the Minerva Center. I am
grateful to Prof. Yuval Shany for his comments on this paper.
Electronic copy available at: http://ssrn.com/abstract=1280364
1. INTRODUCTION................................................................................................................................. 5
2. THE PHENOMENON.......................................................................................................................... 7
2.1 Rhodesia.....................................................................................................................................7
2.1.1 Background........................................................................................................................7
2.1.2 Settlers under the Rhodesian regime...............................................................................9
2.1.4 Transitional arrangements for nationality in Zimbabwe..............................................9
2.2 The TBVC States.................................................................................................................... 10
2.2.1 Background..................................................................................................................... 10
2.2.2 Settlers in the TBVC States ........................................................................................... 12
2.2.3 Post-Apartheid arrangements for South African nationality.................................... 12
2.3 East Timor.............................................................................................................................. 13
2.3.1 Background..................................................................................................................... 13
2.3.2 Settlers under the Indonesian administration............................................................. 15
2.3.3 East Timor’s policy on nationality and residence ...................................................... 16
2.4 The Baltic States ..................................................................................................................... 17
2.4.1 Background..................................................................................................................... 17
2.4.2 Settlers under the Soviet regime ................................................................................... 19
2.4.3 Transitional arrangements common to all three Baltic States .................................. 20
2.4.4 Transitional Arrangements in Lithuania...................................................................... 20
2.4.5 Transitional arrangements in Estonia .......................................................................... 21
2.4.6 Transitional arrangements in Latvia............................................................................. 22
2.5 Cyprus ..................................................................................................................................... 25
2.5.1 Background..................................................................................................................... 25
2.5.2 Settlers in the TRNC...................................................................................................... 27
2.5.3 Transitional arrangements under the Annan Plan ..................................................... 30
2.6 Summary ................................................................................................................................. 33
3. LIMITATIONS ON EXPULSION BASED ON STATUS .............................................................. 33
3.1 Relevant categories of individuals ........................................................................................ 33
3.2 Status granted to settlers, considered under the law of occupation................................ 36
3.3 Status granted to settlers, considered under the law of non-recognition....................... 38
3.3.1 The legal framework....................................................................................................... 38
3.3.2 Recognition of status under the Namibia exception .................................................. 39
3.3.3 Survival of the Namibia exception through transition to a lawful regime............... 41
3.4 Practice.................................................................................................................................... 42
4.1 Introduction ............................................................................................................................ 43
4.2 The Prohibition on Discrimination ..................................................................................... 44
4.3 Protection from severance from social environment – the right to private life............ 46
4.3.1 ECHR Article 8............................................................................................................... 46
4.3.2 ICCPR Article 17 ............................................................................................................ 48
4.3.3 Protection of status v. protection of fundamental rights.......................................... 49
4.3.4 EU Directive 2003/109 ................................................................................................. 51
4.4 The Prohibition on collective expulsion ............................................................................. 52
4.5 The prohibition on inhuman treatment .............................................................................. 53
4.6 Grounds for expulsion........................................................................................................... 54
4.6.1 Introduction.................................................................................................................... 54
4.6.2 Illegality of the settlers’ presence.................................................................................. 55
4.6.3 Protection of the post-transition regime’s national identity ..................................... 56
4.6.4 Continued influence of the former illegal regime ...................................................... 59
4.6.5 National security and fear of a ‘fifth column’............................................................. 60
4.6.6 Redressing historical injustice ....................................................................................... 64
4.6.7 Protection of the rights of others to property ............................................................ 65
5. CONCLUSIONS................................................................................................................................... 66
5.1 Diversity in transitional arrangements................................................................................. 66
5.2 Human rights and conflict resolution.................................................................................. 68
This article concerns settlers introduced into a territory under a territorial regime that is
illegal under international law. Such regimes usually take one of two forms. One is of entities
which effectively operate as States and claim statehood on the basis of acts unlawful under
international law; the other is established States which act as sovereigns over areas outside
their recognized national territories, in violation of international law. The article focuses on
one specific phenomenon associated with illegal regimes, namely the introduction or
implantation of large settler populations into the territory under dispute. Furthermore, it
examines this phenomenon at a specific moment, namely when the illegal regime is replaced
by a lawful one. This is done through a study of six cases In five of them the process of
transition to a legal regime has been completed: the transition from Ian Smith’s regime in
Rhodesia to independent Zimbabwe (1980), Namibia’s transition from South African
administration to Independence (1990), the restoration of the independence of the Baltic
States following the annexation by the Soviet Union (1991), South Africa’s transition from
apartheid to democracy and the elimination of the TBVC States (Transkei, Bophuthatswana,
Venda and Ciskei) (1994), and East Timor’s independence following Indonesian annexation
(2002). The sixth case is the prospective reunification of the Republic of Cyprus with the
Turkish Republic of Northern Cyprus (TRNC), which has yet to take place but has been
negotiated in detail.1
This is not an exhaustive catalogue of regimes that were or still are refused recognition
because of their illegality. Conspicuously absent from its coverage is Israel’s purported
annexation of East Jerusalem in 1967 and of Golan Heights in 1981. This case differs from
others in a number of aspects. Two are particularly important. First, there has been no
concrete negotiation over these areas, and therefore there has been absolutely no attempt to
regulate the status of Israeli settlers in them. Accordingly, the present study may shed light
on potential avenues of discussion, but there is as yet nothing to learn from this case.
Second, the present study concerns situations where the settlers brought in under the illegal
regime wish to remain in the territory when sovereignty over it reverts or transfers to a legal
regime. In contrast, Israeli settlers are unlikely to wish to remain in territory under Syrian or
Palestinian sovereignty. Thus, their status will raise different questions to those examined
here.2 Another case where an illegal regime transferred population to the territory under
dispute is Morocco with respect to Western Sahara. Thus, the issue of settlers brought in by
an illegal regime is characteristic of illegal regimes, and as such requires special analysis.
Illegal regimes take measures to change the demographic composition of the territory under
dispute. Two main strategies are employed. One is the forced removal of the local
population from the territory and its change of status. In this vein, The Soviet Government
had transferred many of the ethnic Balts to the east of the Soviet Union (and conferred on
them new residence status there); the South African Government congregated some 9
1 For a discussion of the illegality of these regimes see J. Dugard, Recognition and the United Nations (1987). The
process of their transition to legal regimes is discussed in Yaël Ronen Legal Aspects of Transition from Unlawful
regimes in International Law (PhD Thesis) (Cambridge: Cambridge University, 2005) and ‘The Dispossessed and the
Distressed: Land Rights in Transition from Unlawful Territorial Regimes’ (Eva Brems, ed.) Conflicts between
Fundamental Rights (Intersentia, 2008). The analysis of Cyprus conflict is based on the Annan Plan of April 2004,
as discussed below.
2 Given the fact that neither the status of the territory nor of settlers has been seriously negotiated, this
possibility cannot be entirely excluded. Nonetheless, Israel’s policy with respect to settlements in the West
Bank suggests that Israel’s strategy is to utilize the presence of settlers to affect the status of the territory rather
than the other way round.
millions blacks in the TBVC States, and denied them South African citizenship.3 The flight
of Greek Cypriots from the TRNC was mostly spontaneous, complemented by an orderly
movement under UN auspices.4 It left only a few hundred Greek Cypriots in the northern
part of the island.5 From the perspective of the lawful post-transition regime, this
phenomenon presents few legal problems. A post-transition regime wishing to reverse the
situation to counter the demographic effect of the illegal regime’s policy is doubtlessly
entitled to offer nationality and residence status to former nationals and residents.6
Another measure by which illegal regimes have attempted to change the demographic
composition of the territory under dispute is the transfer of their own populations or
populations loyal to them into the territory, and subsequently granting these populations
residence or nationality in the territory.7 This measure was employed in the Baltic States,
East Timor, the TRNC and in Rhodesia. It was also made use of in the TBVC States, but to
a numerically negligible extent. This article is concerned with the response of the posttransition
regime to this measure.
At the time of transition from the illegal regime to the new, lawful regime, it is not surprising
that there are calls at various levels, either for the physical removal of settlers from the
country or at least for their exclusion from the body politik. These calls represent a variety of
interests and sentiments. Common to most situations is resentment towards the settlers as
representatives of the exploiting regime and a common thirst for retribution. This sentiment
hardly singles out situations where an illegal regime ends; rather, it is common to many postcolonial
regimes. Another motive for expulsion is concern of the post-transition regime that
despite its formal withdrawal, the previous, illegal regime will continue to exert political,
economic or military pressure on the territory under the new regime. The existence of a
diaspora population of the illegal regime in the territory exacerbates this concern, as that
diaspora may be used as an excuse for intervention at various levels. A further reason for the
indigenous population to call for the removal of settlers is where local resources are limited.
The post-transition regime must therefore decide what it can and should do with persons
who had settled in the territory during the existence of the illegal regime and under its
instruction or with its blessing. The legal power of the post-transition regime to reverse the
acts of the illegal regime by removal of settlers may be limited in various ways. There may be
3 At the same time South Africa continued to regard them as its nationals for international purposes. For details
of South Africa’s policy with regard to nationality, during apartheid and subsequently, see Jonathan Klaaren
‘Post-Apartheid Citizenship in South Africa’ in T. Alexander Aleinkikoff and Duglas Kousmeyer (eds). From
Migrants to Citizens: Membership in a Changing World (2000) 221. The terms ‘nationality’ and ‘citizenship’ are used
here interchangeably, depending on the context in which they appear. The difference between the two is
ordinarily that ‘nationality’ reflects the international dimension of the relationship between a State and the
individual, while ‘citizenship’ reflects the domestic, constitutional dimension of the same relationship. In some
cases, the phenomenon of secondary citizenship or nationality (for example in federated States) complicates
this delineation; however, in the cases examined in this article there is only one citizenship and one nationality,
both of the single State entity considered.
4 UN Docs S/11789, Interim Report of the Secretary-General Pursuant to Security Council Resolution 370
(1975) (5 August 1975); S/11789/Add.1, Second Interim Report of the Secretary-General Pursuant to Security
Council Resolution 370 (1975) (10 September 1975); S/11789.Add.2 Third Interim Report of the Secretary-
General Pursuant to Security Council Resolution 370 (1975) (13 September 1975).
5 Ayla Gürel and Kudret Özersay ‘The Politics of Property in Cyprus: Conflicting Appeals to ‘Bizonality’ and
‘Human Rights’ by the Two Cypriot Communities’ PRIO Report 3/2006 (2006) 16-18.
6 It may be queried whether the post-transition regime is also entitled to impose such status. It is generally
accepted that a State may not impose its nationality to persons not resident in its territory. The question is
whether the post-transition regime may restore status to a non-resident without that person’s consent.
7 This has been Israel’s policy with respect to the Golan Heights and East Jerusalem.
an obligation to give effect to whatever status the illegal regime conferred upon the settlers;
expulsion may also be limited by the operation of human rights law and standards applicable
to long-term residents, in regardless of the original impermissibility of their arrival in the
Part 2 sets out the historical and legal circumstances of each of the cases examined. Part 3
focuses on potential constraints on expulsion of settlers based on the status of the settlers,
Part 4 focuses on constraints on expulsion of settlers arising from substantive human rights
law. Part 5 concludes by comparing the practice in the various cases investigated by
reference to the parameters established earlier.
This Part provides an overview of the phenomenon in the various cases studied here.
Although later analysis focuses on the Baltic States and in the TRNC, the other cases are also
examined for the completeness of the picture. These cases also offer a basis for comparison
of the various routes open to a post-transition regime.
2.1.1 Background
Until 1965 Southern Rhodesia10 was a British colony enjoying extensive self-government
powers. In the early 1960s, the British Government and the Southern Rhodesian
Government negotiated without success independence for the colony. The point of
contention was the transition to majority rule. On 11 November 1965 the Southern
8 There are other limitations. The Special ILC Rapporteur on the expulsion of aliens (hereafter ‘Special
Rapporteur’) also catalogues limits inherent in the international legal order and limits relating to the procedure
of expulsion. A/CN.4/581 para. 27. The latter category is generally unaffected by the identity of potential
expellees or the circumstances of expulsion (except with respect to national security grounds for expulsion, e.g.
ICCPR Art. 13, ECHR Protocol 7 Art. 1(2). Therefore it is of limited interest in the current context. Moreover,
procedural guarantees, around which a large part of jurisprudence revolves, usually become operative with
respect to actual acts of expulsion. Accordingly, procedural guarantees will only be considered where they affect
policy or are affected by it.
9 On Rhodesia’s declaration of independence, the international reaction and the reversion to colony status, see:
Douglas G Anglin “Zimbabwe: Retrospect and Prospect” 35 Intl J 663 (1979-1980); Simon Beynham (ed)
Zimbabwe in Transition (1992), James Crawford The Creation of States (1979) 103-106; Jeffery Davidow A Peace in
Soutehrn Africa: The Lancaster House Conference on Rhodesia, 1979 (1984); John Dugard “Rhodesia: Does South
Africa Recognize it as an Independent State?” 94 The SALJ (1977) 127, (1987), supra note 1, 90; Vera
Gowlland-Debbas Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of
Southern Rhodesia (1990); Desmond William Lardner-Burke Rhodesia: The Story of the Crisis (1966); Adolphe
Lawson Les Accords de Lancaster House en 1979: l'Aboutissement de Deux Décennies de Débats sur les Conditions de
l'Indépendance du Zimbabwe (1988); Robert O Matthews “Talking Without Negotiating: The case of Rhodesia” 39
Intl J 91 (1979-1980); Myres S McDougal and W Michael Reisman “Rhodesia and the United Nations: The
Unlawfulness of International Concern” 62 AJIL (1968) 1; Wyndraeth H Morris-Jones From Rhodesia to
Zimbabwe: Behind and Beyond Lancaster House (1980); Jericho Nkala The United Nations, International Law and the
Rhodesian Independence Crisis (1985); Claire Palley The Constitutional History and Law of Southern Rhodesia, 1888-1965
with Special Reference to Imperial Control (1966); Parker (1972); Alison Quentin-Baxter Rhodesia and the Law A
Commentary on the Constitutional and International Law Aspects of the Rhodesian Situation (1970); Brad R Roth
Governmental Illegitimacy in International Law (1999); Peter Slinn “Zimbabwe Achieves Independence” 6
Commonwealth Law Bulletin (1980) 1038; Lord Christopher Soames “From Rhodesia to Zimbabwe” 56
International Affairs (1980) 405.
10 Until the Declaration of Independence the territory was called Southern Rhodesia. After the Declaration it
renamed itself Rhodesia. Following the internal settlement of 1978, the name changed to Rhodesia-Zimbabwe,
and upon independence it became Zimbabwe. For convenience, this work will use the name “Rhodesia” for
the period until 1980, and “Zimbabwe” for the following period. “Zimbabwe” is the African name for the
territory, and its use reflects the realization of Black African self-determination.
Rhodesian Government, headed by Ian Smith, issued a unilateral declaration of
Independence (UDI) of Rhodesia.11
Both the UN General Assembly and the Security Council repeatedly called upon all States
not to recognize the illegal racist minority regime in Southern Rhodesia.12 Other international
organizations also took action.13 The UDI was considered illegal because it had been carried
out in violation of the right to self-determination (without consultation with the Black
majority). No less importantly, it was made during a period of negotiations with the UK over
transition to majority rule; its timing was intended to pre-empt a UK ultimatum on the
matter. Thus, it was made in order to perpetuate the existing White minority rule, which was
itself a violation of the right of the Black population to self-determination.14 The adherence
to the policy of non-recognition was universal. No State recognized the statehood of
Rhodesia, although some doubts arose with regard to South Africa.
During a decade of abortive attempts to resolve the Rhodesia problem through negotiated
settlements (in addition to the pressure placed on the Smith regime through the UNimposed
sanctions),15 fighting within Rhodesia escalated, resulting by 1978 in some 12,000
victims of Guerrilla action.16 The conflict was finally resolved in December 1979, when the
British Government brokered the Lancaster House Agreement.17 Under the Agreement,
Rhodesia temporarily reverted to colony status under direct control of a Governor appointed
by the British government.18 Elections were held in February 1980,19 leading to the transition
of Rhodesia in April of the same year into independent Zimbabwe, governed by majority
Black rule.20 Zimbabwe adopted the Independence Constitution,21 also agreed upon in
Lancaster House
11 “Proclamation by Prime Minister” (1966) 5 ILM 230. This was clearly in excess of its powers under the 1961
constitution. Initially Rhodesia purported to remain a monarchy, with the Queen as head of State, but in 1970 it
proclaimed itself a Republic.
12 E.g. GA Res 2024(XX) (11 Nov 1965), GA Resolution 2012 (XX), GA Res 2022(XX) (5 Nov 1965), SC
Resolution 216 (11 November 1965), SC Resolution 217 (12 November 1965), SC Resolution 277 (18 March
1970), SC Resolution 288 (17 November 1970).
13 E.g. Second Ordinary Session of the Assembly of Heads of States of the Organization of African Unity held
in Accra, Ghana from 21 to 26 Oct 1965, AHG/Res 25 (II) (22 Oct 1965) [5], Sixth Ordinary Session of the
Council of Ministers of the Organization of African Unity held in Addis Ababa, Ethiopia from 28 Feb to 6 Mar
1966, CM/Res 75 (VI) [1].
14 E.g. Resolution 2022 (XX) (5 Nov 1965), preambular paras. 4, 5, Gowlland-Debbas (1990) , supra note 9,
221-237; Nineteenth Ordinary Session of the Council of Ministers Held in Rabat, Morocco from 5 to 12 June
1972, CM/Res 267 (XIX) preambular paras 5, 7; Twenty-Ninth Ordinary Session of the Council of Ministers
Held in Libreville, Gabon from 23 June to 3 July 1977 CM/Res 547 (XXIX) preambular para. 5.
15 Nkala (1985), , supra note 9; Gowlland-Debbas (1990), supra note 9, 17-23; Matthews (1979-1980), , supra note
9; Stephen J Stedman Peacemaking in Civil War, International Mediation in Zimbabwe, 1974-1980 1991).
16 Margaret Doxey “The Making of Zimbabwe: From Illegal to Legal Independence” 36 The Year Book of
World Affairs (1982) 150, 161.
17 For an analysis of the negotiations and their outcome see Lawson (1988) supra note 9.; Davidow (1984), supra
note 9.
18 The Independence Constitution, Pre-Independence Arrangements [2].
19 Elections for the White seats were held on 14 Feb 1980, and for the Black seats on 27, 28 and 29 Feb 1980.
20 Because of the short period of time between the reversion to Colony status and Zimbabwe’s independence,
this article considers the process of transition to independence and not only reversion to colony status.
21 United Kingdom Southern Rhodesia - Report of the Constitutional Conference, Lancaster House, London,
September-December 1979 (Lancaster House, 21 December 1979) (Cmnd 7802 1979).
2.1.2 Settlers under the Rhodesian regime
In 1965, the population of Rhodesia comprised about five million people, 4% (210,000) of
whom were White.22 The UDI was followed by a brief period of emigration of non-Blacks,
arising from insecurity about the political future of the country. Thereafter, the emigration of
Whites, Asians and Coloureds23 from the country slowed. At the same time, immigration
increased throughout the late 1960s and early 1970s.24 This was partly the result of a
governmental immigration campaign which began in 1964, aimed to attract a million White
settlers to the country.25 The Government's campaign involved considerable incentives,
including travel subsidies, housing, customs concessions, tax relief, job placement
expenditures, social services provision, and language programs for non-English-speaking
immigrants.26 In addition, during the late 1960s and early 1970s, as African States gradually
achieved independence, Rhodesia became the destination of many Whites who sought to
maintain a colonial lifestyle. Even in the late 1970s, by which time Rhodesia’s deteriorating
political and economic situation27 discouraged immigration and emigration was on the rise,
large, numbers of immigrants were still arriving from newly-independent Mozambique and
Overall, from 1966 to 1980, the net population of non-Blacks grew only marginally, by less
than 5%. Moreover, because the growth rate of the Black population increased, the relative
size of the non-Black population consistently grew smaller.29 But the composition of the
non-Black population changed dramatically: by 1980, about half of it was post-UDI
2.1.4 Transitional arrangements for nationality in Zimbabwe
During the Lancaster House negotiations on withdrawal of the Smith regime and
establishment of Zimbabwe, the Popular Front (PF), representing the black population of
Rhodesia, objected to the validation of citizenships granted since 1965. It assumed that post-
UDI immigrants were for the most part supporters of the illegal regime who presented a
security risk for the new Zimbabwe. The assumption as to the ideological background of the
settler immigrants was not without basis, given that many of them arrived from newlyindependent
States and saw in Rhodesia the type of privileged life to which they had become
accustomed.31 The PF was particularly concerned that validating citizenships granted since
1965 would create large population of dual nationals of both Zimbabwe and South Africa,
which was then an island of White minority dominance over a Black majority. The PF
considered such dual nationality ideologically unacceptable, but was also concerned that it
would result in excessive South African involvement in Zimbabwe under the guise of
22 Barry M. Schutz ‘European Population Patterns, Cultural Persistence, and Political Change in Rhodesia’ 7
Canadian Journal of African Studies/Revue Canadienne des Études Africaines (1973) 3, 21.
23 Under Rhodesian law there was a distinction between the three racial groups.
24 Lovemore M. Zinyama, ‘International Migrations to and from Zimbabwe and the Influence of Political
Changes on Population Movements, 1965-1987’ 24 International Migration Review (1990) 748, 751.
25 Glenn V. Stephenson ‘The Impact of International Economic Sanctions on the Internal Viability of
Rhodesia’ 65 Geographical Review, Vol. 651975) 377, 385.
26 Zinyama (1990), supra note 24, 751.
27 Zinyama (1990), supra note 24, 752.
28 Schutz (1973), supra note 22, 21-22.
29 Schutz, supra note 22, 20.
30 In the 1969 census their total number was only 252,414. The net immigration of about 11,000 non-Blacks
consisted of some 145,000 immigrants and 134,000 emigrants. Based on data provided in Zinyama (1990), supra
note 24, 751-752.
31 Schutz, supra note 22, 21-22.
protection of its nationals.32 The PF therefore suggested that potential dual nationals would
be required to opt for either Zimbabwean or the other nationality within one year of
These proposals were not adopted in the Lancaster House Agreement. In line with the
arrangmenet on other matters, the Independence Constitution confirmed the validity of pretransition
Rhodesian citizenship and provided that persons holding it immediately prior to
the date on which Zimbabwe became independent would automatically become
Zimbabwean citizens. It did not distinguish the date on which that citizenship had been
acquired. Moreover, Persons not holding Rhodesian citizenship but entitled to it under
existing law would have an unqualified right to claim Zimbabwean citizenship for a period of
five years following independence.33 On the basis of ius sanguinis, descendants of
Zimbabwean citizens were also entitled to Zimbabwean citizenship, regardless of the basis
on which their parents had acquired that citizenship.34
The status of Whites as Zimbabwean citizens (and residents) was thereby guaranteed. In
practice the Zimbabwean Government took measures to encourage the White population to
emigrate from the country, mostly through economic incentives such as the right to remove
funds from the country under favourable terms. The precise composition of the White
population, namely whether it was recently-arrived immigrants or long-term inhabitants, was
of little significance. Zimbabwe acted in this respect, as in others, as a State emerging from
colonialism, similar to other newly independent States in Central and Southern Africa, and
the incentives were not related in anyway to the illegality of the previous regime.
2.2.1 Background
Between 1976 and 1981 South Africa granted independence to four States within its
territory: Transkei, Bophuthatswana,36 Venda and Ciskei (the TBVC States37). This was
perhaps the most extreme measure that the South African government carried out as part of
its apartheid policy; it was certainly the ultimate extension of that policy. It was an attempt to
produce a new version of racial segregation, seemingly in line with contemporary
international standards. The South African Government presented the granting of so-called
32 Lawson (1988), supra note 9, 145.
33 Independence Constitution, annexed to the Report of the Constitutional Conference, Lancaster House
(1979) B1.
34 Independence Constitution, annexed to the Report of the Constitutional Conference, Lancaster House
(1979) B3. At the same time, the Agreement empowered Parliament to make provisions for taking away the
Zimbabwean citizenship of a person who had acquired it other than by birth or descent. Theoretically this left
the door open to deny citizenship of post-UDI immigrants. Independence Constitution, B6(B). Finally, it was
also agreed that upon independence, provisions would be made for the recovery of nationality by persons who
had forfeited it or have been deprived of it since UDI. Independence Constitution, B8.
35 On the establishment of the TBVC States, the international reaction and the reincorporation of the TBVC
States into South Africa, see George N Barrie “The “Absorption” of Bophuthatswana March 1994: Extinction
of State Personality from a South African perspective, Irrelevancy from an International Perspective” Tydskrif
Vir Die Suid-Afrikaans Reg (J of South African L) (1994) 348; AJ Christopher The Atlas of Changing South Africa
2nd ed (2001); Andries Cilliers “Reincorporation of Bophuthatswana and Certain Other States in to the
Republic of South Africa” 19 South African YBIL (1993/1994) 93; Paul Daphne “Undoing Apartheid is Going
to Cost Us” 96 Work in Progress (1994) 14; Donald E deKieffer and David A Hartquist “Transkei: A
legitimate Birth” (1978) 13 New England L Rev 428; Dermott J Devine “International Law Tensions Arising
from the South African Situation 1976-1986” Acta Juridica (1987) 165; Dugard (1987), supra note 1, 98; John
Dugard “The Future of the TBVC ‘States’” 8 SAJHR (1992) iii;
36 Transkei and Bophuthatswana were each made up of numerous enclaves.
37 Also referred to as “Bantustans”, together with six non-independent units within South Africa.
independence to the TBVC States as “internal decolonization”.38 It claimed that it was
responding to requests by the representatives of these entities. In practice, the
representatives of the TBVC States were subordinate to the South African Government. The
independence of Transkei in 1976, Bophuthatswana in 1977, Venda in 1979 and Ciskei in
1981 was effected by domestic legislation entitled Status Acts,39 which created the TBVC
States and severed them from South Africa. The TBVC States were governed by civil and
military dictatorships, often subjected to states of emergency, and always prone to coups.
Their governments depended on the South African Government to maintain power, which
was held through repression of opposition and frequent resort to violence. Ordinarily, these
governments also followed policies demanded by the South African Government.40
The grant of independence to the TBVC States was condemned by the UN General
Assembly as a tool for the perpetuation of apartheid and for dispossessing the black
population of its right to self-determination.41 The TBVC States were never recognized by
any State except South Africa and the other TBVC States.42 Their existence was also
vehemently opposed by the leading opposition movement, the African National Congress
(ANC), as well as by residents of the TBVC States, who resented the material deprivation
which characterized the TBVC States in comparison with the rest of South Africa.43
The 1989 elections in South Africa marked the beginning of a new era and the gradual
renunciation of apartheid. In February 1990 the South African Government began the
dismantling of the apartheid regime.44 It soon became clear that the TBVC States would be
reincorporated within the new democratic South Africa.45 On 27 April 1994, elections were
held throughout South Africa, including the TBVC States. After the elections the Interim
Constitution came into force, repealing the provisions granting independence to the TBVC
38 John Dugard “Collective Non-recognition: the Failure of South Africa's Bantustan States” in Boutros Boutros-
Ghali Amicorum Discipulorumque: Liber, Peace Development, Democracy (1998) vol 1, 383-387.
39 Status of Transkei Act 1976, Status of Bophuthatswana Act 1977, Status of Venda Act 1979, Status of Ciskei
Act 1981.
40 Inteview with Mr. Zam Titus, Special Advisor to the minister of Provincial and Local Government and
formerly Director-General of the Ministry of Constitutional Development, Administrator-General of Ciskei,
participant in the MPNF (Pretoria 7 Apr 2004).
41 GA Resolution 31/6A (26 October 1976) on Transkei, GA Res 32/105 N (14 Dec 1977) on
Bophuthatswana, S/13549 Note by the President of the Security Council (21 Sept 1979) on Venda, GA Res
37/69 A (9 Dec 1982) on Ciskei.
42 Although not being recognized themselves, they were incapable of recognizing the statehood of other
entities. Dermott J Devine “Recognition, Newly Independent States and General International Law” 10 SAYIL
(1984) 18.
43 Race Relations Survey (1989-90) 435.
44 Race Relations Survey 1991/92 (1992) 79.
45 Tanya Woker & Sue Clarke “Homelands” 2 South African Human Rights Yearbook (1991) 104, 105; Race
Relations Survey (1992-93) 506, Firoz Cachalia “A Report on the Convention for a Democratic South Africa” 8
SAJHR (1992) 249, 261; Interview with Mr. Zam Titus, Special Advisor to the minister of Provincial and Local
Government and formerly Director-General of the Ministry of Constitutional Development, Administrator-
General of Ciskei, participant in the MPNF (Pretoria 7 Apr 2004); Interview with Prof. Francois Venter,
University of Potchefstroom, participant in the MPNF (Potschefstroom 6 Apr 2004); Interview with Mr. Rolf
Meyer, South Africa’s Minister of Defence, of Communication and of Constitutional Affairs 1991-1996
(Pretoria 8 Apr 2004).
46 Interim Constitution Art. 230. The Interim Constitution was later replaced by the Constitution of the
Republic of South Africa, 1996, entered into force on 7 February 1997.
2.2.2 Settlers in the TBVC States
A large number of persons became citizens of the TBVC States, who had not been South
African citizens previously. These naturalized TBVC citizens were of two types. One group
was criminals and mafia members from around the world, who profited from the lack of
international relations and cooperation with the TBVC States to find refuge from the hand
of the law. They often acquired TBVC citizenship through illegal payment to the TBVC
States’ despot leaders. The other, much larger, group comprised people from various African
States who wanted to immigrate to South Africa, such as Ugandan doctors. They preferred
to naturalize in the TBVC States since this was more easily done than in South Africa, and
because the rural TBVC States were more similar to their States of origin than urban White
South Africa.47
2.2.3 Post-Apartheid arrangements for South African nationality
At the early stages of the negotiations over the transition to apartheid, there was a debate on
the status of naturalized TBVC citizens. Eventually it was decided to give legal validity to
whatever had already been done.48 From there on it was a matter of drafting rather than
substance. The 1993 Restoration and Extension of South African Citizenship, which
constituted part of the package of legislation agreed up on between the parties negotiating
the interim Constitution,49 generally reversed the apartheid-era legislation on nationality. In
this context it adopted the principle that persons who were citizens of the TBVC States but
not of South Africa, namely post-‘independence’ naturalized TBVC States’ citizens, would
have to apply for South African citizenship by naturalization.50 This provision was criticized
as discriminating against TBVC States citizens.51 Accordingly, the 1995 South African
Citizenship Act made the acquisition of South African citizenship by these people
automatic.52 Granting South African as of right to naturalized TBVC citizens resolved the
practical problem. At the same time, the Minister of Home Affairs may deprive a person of
South African citizenship if his or her certificate of naturalization was obtained by fraudulent
means.53 This paved the way for a distinction between good faith settlers and criminals
fleeing the law.
47 Interview of the author with Dr. Jonathan Klaaren, Witwatersrand University, 5 April 2004.
48 Interview of the author with Dr. Jonathan Klaaren, Witwatersrand University, 5 April 2004.
49 Klaaren, (2001), supra note 3, 228.
50 Restoration and Extension of South African Citizenship Act 196 of 1993 Art. 4.
51 Klaaren (2001), supra note 3, 234-235.
52 South African Citizenship Act no. 88 of 1995 Art. 4(1)(iii). The Act was amended by the South African
Citizenship Act Amendment Act no. 69 of 1997, deleting this subpara., to rectify the fact that the 1995 wording
did not grant South African citizenship as of right to persons who were citizens of the former TBVC states by
registration. South African Citizenship Act Amendment Bill, 1997, p. 8.
53 South African Citizenship Act no. 88 of 1995 Art. 8(1)(a).
2.3.1 Background
The island of Timor is situated in the Indian Ocean, about 400 miles north-west of Darwin,
Australia. The eastern part of the island (East Timor) was until the mid-1970s a colony of
Portugal.55 In 1974 Portugal began a process of decolonization, which included the territory
of East Timor. Neighbouring Indonesia opposed independence for East Timor.56 In 1975,
disagreement among factions within East Timor on the future of East Timor spurred a civil
war. Indonesian forces intervened on 7 December 1975 and occupied it. In July 1976
Indonesia annexed East Timor as its 27th province.57
Portugal claimed that Indonesia was occupying East Timor illegally58 because it violated the
prohibition on the use of force and in the denial of the right to self-determination.59
Individual States accepted the Portuguese contention,60 although few concrete measures
54 For general reference on the annexation of East Timor, the international reaction and the transition to
independence, see: M. Alkatiri, The Democratic Republic of East Timor (Statement in the Fourth Committee
of the United Nations General Assembly), 7 Journal of Contemporary Asia 280 (1977); A. Cassese, supra note
13,223-230; R.S. Clark, Obligations of Third States in the Face of Illegality – Ruminations Inspired by the
Weeramantry Dissent in the Case Concerning East Timor, in: A. Anghie and G. Stugess (eds), Legal Visions of
the 21st Century: Essays in Honour of Judge Christopher Weeramantry (1998); R.S. Clark, The “Decolonization” of East
Timor and the United Nations Norms on Self Determination and Aggression (1995) updated and corrected
version of R.S. Clark, The “Decolonization” of East Timor and the United Nations Norms on Self
Determination and Aggression, 7 Yale Journal of World Public Order 2 (1980) (on file with the author); C. Drew,
The East Timor Story: International Law on Trial, 12 European Journal of International Law 651 (2001); J. Dunn,
East Timor: A People Betrayed (1983); G.C. Gunn, East Timor and the United Nations, the Case for Intervention (1997);
L. Hannikainen, The Case of East Timor from the Perspective of jus cogens, in: Catholic Institute for
International Relations and International Platform of Jurists for East Timor, International Law and the Question of
East Timor 103 (1995); S.D. Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law
and Practice 281-292 (1996); H. Krieger (ed.), East Timor and the International Community: Basic Documents (1997); J.
Fox J and D. Babo Soares (eds), Out of the Ashes: Destruction and Reconstruction of East Timor (2003); I.G.M.
Scobbie and C.J. Drew, Self-Determination Undetermined: The Case of East Timor, 9 Leiden Journal of
International Law 185 (1996); H. Strohmeyer, Policing the Peace: Post-Conflict Judicial System Reconstruction in
East Timor, 24 University of New South Wales Law Journal 171 (2001); Conflict, Security and Development Group,
A Review of Peace Operations: A Case of Change 215-323 (2003); International Center for Transitional Justice (ICTJ),
Commission for Reception, Truth and Reconciliation in East Timor (CAVR), Chega! (CAVR Final Report), 31
October 2005, available at http://www.ictj.org/en/news/features/846.html (last visit: 3 October 2007).
55 UN. General Assembly (GA) 15 December 1961, Resolution 1542.
56 R.S. Clark (1980), supra note 54, 19-43.
57 Indonesia, Law 7/76 on the Legalization of the Integration of East Timor into the Unitary State of the
Republic of Indonesia and the Formation of the Province of East Timor (1976).
58 E.g. UN Doc A/52/152 Note Verbale dated 19 May 1997 from the Permanent Mission of Portugal to the
UN addressed to the Secretary-General (20 May 1997) [1].
59 Official Records of the Security Council, 30th Year, 1864th Meeting, New York, Statement of the
representative of Portugal, S/PV.1864, [59] (15 December 1975); GA Res 31/53 (1 December 1976); A.
Cassese, supra note 54, 226.
60 For the UK, see statement of the Minister of State, Foreign and Commonwealth Office (Mr. John Battle)
that “East Timor was invaded by Indonesia in 1975,” Hansard HC vol 334 (6th Series) col 764 (15 February
2000); An exception is Australia, which on 14 February 1979 announced it recognized the incorporation of
East Timor into Indonesia de jure. It also claimed that other States have recognized the annexation, ICJ 1 June
1992, East Timor (Portugal v. Australia), Counter-memorial of the Government of Australia, [175]-[176]; ICJ 1
July 1993, East Timor (Portugal v. Australia), Rejoinder of the Government of Australia, [44]-[54]; Judge
Skubiszewski opined that certain the following States might have recognized the annexation de facto:
Bangladesh, India, Iran, Iraq, Jordan, Malaysia, Morocco, Papua New Guinea, the Philippines and the US. ICJ
30 June 1995, Case Concerning East Timor (Portugal v. Australia), Dissenting Opinion of Judge Skubiszewski, Rep.
90, [26].
were taken to sanction the delinquency.61 The collective international position was expressed
in General Assembly Resolution 3485 (XXX) of 12 December 1975, which called upon
to desist from further violation of the territorial integrity of Portuguese Timor and to
withdraw without delay its armed forces from the territory in order to enable the
people of the Territory freely to exercise their right to self-determination and
Subsequent Resolutions were less explicit with regard to the unlawfulness of the Indonesian
In 1999 Indonesia agreed to hold a referendum in East Timor to determine its political
future,63 presenting the population with a choice between independence and integration
within Indonesia as an autonomous region. In August 1999, over 78% of the half million
voters put ballots in favour of independence.64 Once the results of the vote were released,
pro-integration militia groups went on a violent rampage, assisted by the Indonesian
military.65 In October 1999 the UN Security Council established the United Nations
Transitional Administration in East Timor (UNTAET), to administer East Timor before
handing it over to an elected Timorese government. On 20 May 2002 East Timor became
Independent East Timor took the position that it had been occupied by Indonesia in
violation of the prohibition on the use of force and of the right of the people of East Timor
to self-determination.66 The overall implications of this position on the applicable law in East
Timor are yet to be settled,67 although East Timorese law generally provides for continuity
from Indonesian law applicable prior to 1999.68
61 T.D. Grant, East Timor, the UN System, and Enforcing Non-Recognition in International Law, 33 Vanderbilt
Journal of Transnational Law 273, 298-99 (2000).
62 UN Security Council, Resolution 384 (22 December 1975) and UN Security Council, Resolution 389 (22
April 1976); GA, Resolutions 31/53 (1 December 1976), 32/34 (28 November 1977), 33/39 (13 December
1978) , 34/40 (21 November 1979), 35/27 (11 November 1980), 36/50 (24 November 1981), and 37/30 (22
November 1982) In 1983 the Commission on Human Rights adopted a resolution on the right of the East
Timorese to self-determination which reaffirmed the inalienable right of the people of East Timor to selfdetermination
and independence Commission of Human Rights Res 1983/8 noted in UN Yearbook 833-834
(1983). For the position of the ICJ see East Timor, supra note 60.
63 Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor
A/53/951 S/1999/513 Annex I, 2062 UNTS 8; Agreement Regarding the Modalities for the Popular
Consultation of the East Timorese through a Direct Ballot (Portugal-Indonesia) 2062 UNTS 40.
64 UN Secretary-General Press Release SG/SM/7119 SC/6722 of 3 September 1999.
65 By late September, hundreds of people were killed and an estimated 400,000 – over half the population – was
forced to flee their homes. Geoffrey Robinson East Timor 1999: Crimes Against Humanity Report commissioned
by the United Nations Office of the High Commissioner for Human Rights (Geneva) 2005, p.42-44.
66 The preamble to the East Timorese Constitution; Indonesia has attempted to justify its use of force against
East Timor on four grounds: self defence, invitation by the East Timorese, the future stability of Indonesia and
Southeast Asia, and humanitarian purposes. However, none of these claims was sustainable as a matter of fact
or of law. R.S. Clark (1980) supra note 54, 37-43.
67 East Timor, Court of Appeal Judgment, Criminal Offence No. 3/2002 in the name of the appellant Armando
dos Santos v. the Prosecutor General, Dili, 15 July 2003, available in English at
http://www.jsmp.minihub.org/judgmentspdf/courtofappeal/Ct_of_App-dos_Santos_English22703.pdf (last
visit: 7 February 2007). Although the majority’s ruling as to the validity of Indonesian legislation was rejected by
lower courts and later superseded by legislation, its statement on the fact of unlawful occupation was not
contested; Preamble of Law on the Juridical regime Real Estate Part 1 – Ownership over Real Estate, No.
1/2003, adopted on 10 March, 2003. The original version in Portuguese (“A ocupação de Timor-Leste, entre
2.3.2 Settlers under the Indonesian administration
It is estimated that in 1974 East Timor’s population numbered around 650,000.69 During
Indonesia’s rule, East Timor was a migration destination for Indonesians of two types. One
was forced migrants that migrated under the Indonesian ‘transmigration’ policy, aimed at
dispersing populations from dense and poor areas to outlying islands of the archipelago.70
The other type was voluntary migrants, for the most part attracted by economic incentives
which Indonesia offered to settlers in East Timor. At the same time, non-governmental
sources estimate a fall of over 20% in the indigenous population, primarily because of mass
killings by Indonesia, and as a result of famine and of the departure of refugees.71
Although Indonesia conducted a number of censuses, exact data on the demographic
composition of East Timor is hard to obtain. This is due to suspected excess counts and
undercounts, as well as lack of information on internal migration. Low counts provided by
the Indonesian Governments suggest that only about 6% of East Timor’s population was
previously resident in another province. This accounts, however, only for first-generation
migrants. Government censuses would count subsequent generations of internal migrants as
native East Timorese despite their non-East Timorese ethnicity. The Indonesian
Government reported East Timor as a migration destination for little over 10,000 persons.72
The high estimates of non-governmental sources suggest that by 1997 there were 160,000-
180,000 non-Timorese inhabitants in East Timor in the 15-60 age group,73 constituting 20%
of the population.
Two separate classes of people emerged in East Timor: One was the small elite of mainly
Indonesian military and civilians, and the commercial and business class, where native East
Timorese made up a minority;74 and the majority of East Timorese population in urban and
rural areas who were treated as second class citizens. Also, Indonesian transmigrants were
often given the best land while the local population was forced onto poorer land. Only a
small percentage of native East Timorese occupied public service positions.75
In view of the demographic composition of the territory, namely the Indonesian dominance
of the political and economic elite, the presence of Indonesians in independent East Timor
might have given cause for concern. However, following the referendum and in the midst of
the ensuing violence, Indonesia conducted a massive pre-planned evacuation following the
referendum. About 250,000 persons were evacuated, of them over 26,000 military personnel
and families, 43,000 non-Timorese civil servants and 180,000 East Timorese.76 By 2002,
1975 e 1999, foi um acto ilegal, conforme reconhecido a nível internacional”) is available at
http://www.gov.east-timor.org/L1bens.htm (last visit: 7 February 2007).
68 Lei No. 2/2002 de 7 de Agosto Interpretação do Direito Vigente em 19 de Maio de 2002, and Lei No.
10/2003 de 10 de Dezembro Interpretação Do Artigo 1 da Lei No. 2/2002, de 7 de Agosto e Fontes do
69 Ben Kiernan ‘The Demography of Genocide in Southeast Asia, The Death Tolls in Cambodia, 1975-79,
and East Timor, 1975-80’ 35 Critical Asia Studies (2003) 585, 590.
70 Mark J. Miller, ‘Demography and Security (M.I.T. Center for International Studies, December 11-12, 1998)’
33 International Migration Review (1999) 193, 195.
71 Kiernan (2003), supra note 69, 594.
72 One percent of all official transmigrants in the period 1968-2000, quoted at over a million. p. 95, table 1 and
figure 1 of source unknown, provided to me from Graeme Hugo.
73 Kiernan (2003) supra note 69, 597. A different estimate is that of 5000 transmigrant families; Miller, supra note
70, 195.
74 Stephen Sherlock ‘Political Economy of the East Timor Conflict’ 36 Asian Survey (1996) 835, 837-838.
75 UNDP, ‘East Timor: Building Blocks for a Nation’ (2000) 22-23
76 Geoffrey Robinson East Timor 1999: Crimes Against Humanity Report commissioned by the United Nations
Office of the High Commissioner for Human Rights (2005) 78-81.
when East Timor’s Nationality Law77 was formulated and came into effect, the residence and
nationality of non-East Timorese Indonesians was of little practical significance.
2.3.3 East Timor’s policy on nationality and residence
East Timor’s 2002 Nationality law determines its original citizens without any reference to
previous citizenship, neither under Portuguese nor under Indonesian law. Article 8 of the
Nationality Law provides: 78
1. An original citizen of Timor-Leste is one who was born in the national territory:
a) A child of a father or mother born in Timor-Leste;
b) A child of incognito parents, stateless parents or parents of unknown citizenship;
c) A child of a foreign father or mother who, being over seventeen years old, declares to
become an East Timorese national of his or her own accord.

The status of Indonesian-era settlers is regulated mainly in section 1(a) which provides
original nationality to second generation natives of the territory (person whose parents were
born in the territory). While this applies to most ethnic East Timorese, it grants nationality
only to third-generation Indonesian immigrants, few of whom are likely candidates for East
Timorese nationality.79 Where Indonesian-era settlers satisfy this condition, they are entitled
to East Timorese nationality. Article 1(c) allows Indonesians second-generation Indonesianera
settlers to acquire East Timorese nationality by declaration.
In addition, the Nationality Law provides for discretionary naturalization on the basis of
long-term residence for persons who have been ‘usual and regular resident of Timor-Leste
for at least ten years prior to 7 December 1975 or after 20 May 2002’80 and able to speak one
of the official languages of East Timor.81 Settlers under Indonesian rule may thus acquire
nationality on the same footing as other foreigners. Section 12(1)(b) clarifies, however, that
in calculation of their lawful residence period, the period of Indonesian rule would not be
counted. This exclusion is emphasized in Section 2, which provides that ‘A foreign citizen
who has settled in Timor-Leste as a result of transmigration policy or foreign military
occupation shall not be considered as a usual or regular resident’. The overall result is that
the few Indonesian-era settlers that remain in East Timor can claim original East Timorese
nationality. They can acquire nationality by naturalization in the same manner as other
Since East Timorese law does not entitle settlers under Indonesian rule to acquire nationality
on preferential terms, the question arises whether they may remain as residents in East
77 Lei 9/2002 of 5 Nov 2002 (‘East Timor Nationality Law’).
78 These provisions more or less repeat Art. 3 of the East Timor Constitution (2002).
79 The oldest of those would be about 10 years old in 2002 (calculating that the oldest second-generation
immigrants were less than thirty years old in 2002. Minors are unlikely to acquire East Timorese nationality if
their parents do not.
80 East Timor Nationality Law (2002) Art. 12(1)(b).
81 East Timor Nationality Law (2002) Art. 12(1)(c). Since during the Indonesian administration the use of both
languages was suppressed by the dominant Indonesian, the majority of immigrants from that period were
unlikely to be fluent in either of the two official languages, Portuguese and Tetum.
82 with or without the prospect of subsequently becoming its nationals, depending on the interpretation of Art.
Article 131 of the Immigration and Asylum Act (2003) clarifies that Indonesian-era settlers
(Indonesians and others) may not rely on status granted by Indonesia. They must obtain
authorization of the post-transition regime:
Foreigners who entered the country after December 7, 1975, and who are conducting
activities in the national territory for which under the present provisions it is mandatory
to be a resident or holder of a proper visa, must, within 90 days from the entry into force
of this Act, request a visa that will allow them to stay or to practice a professional activity.
2. The granting of the visa described in the previous item shall follow the
requirements established in this law, with the necessary adaptations, and its
application shall be regulated by a ministerial instruction issued by the Minister of the
Unlike the status of post-independence immigrants, residence of settlers under Indonesian
rule is regulated by the instruction of the Minister of Interior, rather than by the standard
immigration authorities.83 Thus, Indonesian-era settlers are by no means privileged in
acquiring permanent status in East Timorese. If anything, they are subject to stricter control.
The mass flight of non-East Timorese from East Timor during the 1999 violence made the
status of Indonesian-era settlers almost moot, although there have been isolated incidents of
dispute concerning the expulsion of non-indigenous East Timorese form East Timor.84 The
matter may re-emerge as the regulation of land rights progresses, since East Timorese law
reserves the ownership of land to East Timorese nationals.85
2.4.1 Background
The signing of the Molotov-Ribbentrop Pact in August 193987 marked the beginning of the
active Soviet campaign for taking over Estonia, Latvia and Lithuania (the Baltic States).88 On
83 East Timor Immigration and Asylum Act (2003) Art. 131(2).
84 US Department of State Human Rights Practice 2005 Report on East Timor, Section 2(c).
85 It is not clear whether this reservation operates prospectively or applies also to existing ownership. Once the
criteria for ownership are clarified, and if transactions carried out under the Indonesian administration receive
any measure of validity, a problem may arise with respect to Indonesian owners of property who under the
current legislation are not entitled to East Timorese citizenship.
86 For general references on the annexation of the Baltic States, the international reaction and the restoration of
independence, see: A. Cassese, Self-Determination of Peoples, A Legal Reappraisal 258-264 (1995); I. Feldmanis, The
Occupation of Latvia: Aspects of History and International Law (undated)
http://www.amgovlv/en/latvia/history/occupation-aspects (last visit: 7 February 2007); W.J.H Hough III,
The Annexation of the Baltic States and its Effect on the Development of Law Prohibiting Forcible Seizure of
Territory, 6(2) New York Law School Journal of International & Comparative Law (1985) 303; A. Lieven, The Baltic
Revolution, Estonia Latvia, Lithuania and the Path to Independence (1993); L. Mälksoo, Illegal Annexation and State
Continuity: The Case of the Incorporation of the Baltic States by the USSR (2003); R. Müllerson, International Law, Human
Rights and Politics: Developments in Eastern Europe and the CIS (1994); Vello Pettai ‘The Construction of State
Identity and its Legacies: Legal Restorationism in Estonia’ 3 Ab Imperio (2007) 1; P. van Elsuwege, State
Continuity and its Consequences: The Case of the Baltic States, 16 Leiden Journal of international Law (2003) 177;
R.A. Vitas, The Recognition of Lithuania - The Completion of the Legal Circle, 24(3) Journal of Baltic Studies
(1993) 247; R. Yakemtchouk, Les Républiques Baltes en Droit International Echec d’Une Annexion Opérée en
Violation du Droit des Gens, 37 Annuaire français de droit international (1991) 259; D. Žalimas, Legal Issues on the
Continuity of the Republic of Lithuania, 1 Baltic Yearbook of International Law (2001) 1; I. Ziemele, State Continuity
and Nationality: The Baltic States and Russia (2005). This article refers to the three States jointly out of
convenience, because much of their relevant history is similar. However, specific differences between them are
noted as necessary. Needless to say, each of the three States has independent policy and character.
87 Treaty of Nonaggression Between Germany and the Union of Soviet Socialist Republics (signed 23 August
1939) and Secret Supplementary Protocol (USSR-Germany) (signed 23 August 1939, amended 28 September
16 June 1940 the Soviet Union issued ultimatums to all three States, requiring full occupation
and the reconstruction of their governments under Soviet supervision. All three States caved
in.89 The puppet governments established in each of them under Soviet military guard
arranged for elections, following which the elected assemblies in each State petitioned the
Supreme Soviet of the USSR for admission to the Union. In August 1940 the Supreme
Soviet passed legislation admitting Estonia, Latvia and Lithuania into the USSR as Soviet
International reaction to the annexation was neither uniform nor clear.91 Some States refused
to recognize the annexation altogether because it was based on a threat to resort to force.92
Other States recognized the absorption of the Baltic States into the USSR only de facto.93
Some States recognized it de jure,94 and some remained silent.95
The reversion of the Baltic States to independence formed part of and indeed precipitated
the breakdown of the Soviet Union. In 1990 all three States began legislative processes
towards renewing their independence.96 By September 1991 all three Baltic States were
admitted to the UN.
An important element in the policy of the Baltic States is their common self-perception as
having emerged from an illegal regime of occupation to restore their pre-1940
independence.97 This position is generally accepted by other States and organizations98
1939) reproduced in I. Shishcanu, V. Varatec (eds), The Pact Molotov-Ribbentrop and its Consequences for Bessarabia:
Documents 6 (Chișinău : Universitas, 1991).
88 S.E. Himmer, The Achievement of Independence in the Baltic States and its Justifications, 6 Emory
International Law Review (1992) 253, 266.
89 A. Lieven (1993), supra note 86, 79-80.
90 On 3, 5 & 6 August 1940; B. Meissner, ‘The Occupation of the Baltic States from a Present-Day Perspective’
in: T. Jundzis (ed.), The Baltic States at Historical Crossroads 480 (1998).
91 W.J.H. Hough (1985), supra note 86, P.M. Eisemann and M. Koskenniemi (eds), State Succession: Codification
Tested against the Facts 52 (2000); L. Mälksoo (2003) , supra note 86, 122; R. Satkauskas, The Practice of France
with Respect to the Baltic States, 1 Baltic Yearbook of International Law (2001) 111, 113.
92 It has also been suggested that the annexation violated the right of the Baltic peoples to self-determination, J.
Salmon, Pays Baltes, 24 Revue Belge de Droit International (2001) 262, 266. See also B. Meissner (1998), supra note
90, 381-385; L. Mälksoo (2003), supra note 86, 91 on self-determination in the peace treaties with the USSR;
Resolution 189 (1960) of the Council of Europe; but Cassese notes that the right to self-determination did not
ripen until the 1960s. A. Cassese, supra note 13, 262.
93 W.J.H. Hough (1985) supra note 86, 430-442. For the United Kingdom see Court of Appeal, A/S Tallinna
Laevauhisus v. Tallinna Shipping Co (1946); Hansard HC Deb vol 433 (5th Series) col 5 (10 February 1947), cited in
High Court, In re Pikelny (1955); Hansard HC Deb vol 776 (5th series) col 583 (22 January 1969); Hansard HC
Deb vol 172 (6th series) col 172 (8 May 1990). For Canada see Exchequer Court, Estonian States Cargo and
Passenger Line v. S S Elise and Messrs Laane and Balster (1949).
94 L. Mälksoo (2003), supra note 86, 121.
95 W.J.H. Hough (1985), supra note 86, 437, 440-443.
96 E.g. Latvian SSR, Supreme Council, Declaration on the Restoration of Independence of the Republic of
Latvia (4 May 1990); Act on the Re-establishment of the State of Lithuania (11 March 1990); Resolution on the
National Independence of Estonia (20 August 1991) noted in L. Mälksoo (2003), supra note 86, 47; Law on the
Statehood of the Republic of Latvia (21 August 1991).
97 For Estonia see statement on crimes committed by the occupation regimes in Estonia during the Second
World War, June 17-23, 2002 Estonian Review, available at: http://www.vm.ee/eng/kat_137/2484.html (last
visit: 3 October 2007). The Persons Repressed by Occupying Powers Act, which defines such persons as those
“unlawfully repressed by the powers that occupied Estonia between 16 June 1940 and 20 August 1991”. This
includes both the USSR and Germany. June 16 is the day of the Baltic States’ annexation into the USSR.
Persons Repressed by Occupying Powers Act, passed 17 December 2003, RT [Riigi Teataja (State Gazette)] I
2003, 88, 589, available at http://www.legaltext.ee/en/andmebaas/ava.asp?m=022 (last visit: 3 October 2007);
for Latvia see preamble to the Declaration on the Renewal of Independence (4 May 1990), ECtHR 9 October
although some controversy remains.99 This self-perception is expressed, inter alia, in the
reversion to the pre-1940 situation in certain areas of law, including citizenship.
2.4.2 Settlers under the Soviet regime
From the 1940s, the Soviet Government carried out a policy of Russification100 of the Baltic
States in order to give permanence to the Sovietisation of Estonia and Latvia.101 This policy
was particularly prominent in Estonia and Latvia. Two main waves of immigration took
place in 1945-1950 and in 1961-1970.102 Many Russophones were encouraged to migrate by
the higher than average socio-economic conditions in Estonia and Latvia, and the cultural
incentives derived from the perceived ‘Europeanness’ of the Baltic region. Significant
numbers of current Russophone residents of the three States had been posted there while on
military duty and then remained in place upon retirement. By the late 1980s when the USSR
was disintegrating, the Russophone minority constituted a much larger percentage of the
population in Estonia and Latvia than any comparable migrant group in any European
country. In Estonia, the share of Estonians decreased from over 88% in 1934 to 61.5% in
1989,103 while that of Eastern Slavs grew from 8% to 35%. In Latvia, Latvians declined from
77% to 52% during the same period, while Eastern Slavs grew from 12% to 42%.104 Only in
Lithuania did the share of the indigenous population remain almost constant, at 88%.
Inhabitants of the three States were considered nationals of the Soviet Union and residents
of the respective Soviet Republic.
At the time of reversion to independence, the status of Soviet-era Settlers (most of them of
ethnic Russian origin) was by far the most pressing and contentious issue, particularly in
Estonia and Latvia. The Baltic independence movements argued that the mass immigration
of Soviet settlers violated international law on the transfer of civilian population to occupied
2003, Slivenko v. Latvia, application no. 48321/99, judgment of 9 October 2003, para. 76. for Lithuania see the
Act on the Re-establishment of the State
98 On the question whether by 1940 the prohibition on the threat or use of force had become part of customary
international law see I. Brownlie, International Law and the Use of Force by States (1963) 364; H. Lauterpacht (ed.),
Oppenheim’s International Law (6th ed.) (1940) 153 note 6; B. Meissner, The Right to Self-Determination after
Helsinki and its Significance for the Baltic Nations, 13 Case Western Reserve Journal of International Law 375, 380-
381 (1981); D. Žalimas (2001), supra note 86; H. Wright, The Legality of the Annexation of Austria by
Germany, 38 American Journal of International Law 621 (1944); J.W. Garner, Non-Recognition of Illegal Territorial
Annexations and Claims to Sovereignty, 30 American Journal of International Law 679 (1936); R.Y. Jennings, The
Acquisition of Territory in International Law 52-67, 81 (1963); International Law Commission (ILC), Law of Treaties:
Report by Mr Hersch Lauterpacht, Special Rapporteur, UN Doc. A/CN.4/63 (1953), Comment to Draft art. 12 [3];
International Military Tribunal September 1946 - 1st October (1946), The Trial of German Major War Criminals,
99 The Russian Federation (as successor of the USSR) maintains that the Baltic States had been annexed
lawfully and their independence is the result of secession. V. Socor, Kremlin Assails Baltic States, 2(93) Eurasia
Daily Monitor (12 May 2005) http://jamestown.org/edm/byregion.php#rid_12 (last visit: 15 July 2005); P. van
Elsuwege (2003), supra note 86.
100 The term ‘russification’ indicates the introduction of a Russophone population. Ethnically this population
comprises not only Russians and is characterised by being non-Baltic. For the purpose of this article its
designation as Russophone is sufficient, to indicate its non-Baltic character and the fact that its dominant
language is Russian.
101 For a detailed review of this policy see Mälksoo (2003), supra note 86, 216-221.
102 Estonia CERD/C/329/Add.2. (5 July 1999) para. 41.
103 Estonia CERD/C/329/Add.2. (5 July 1999) para. 38.
104 European Parliamentary Assembly of the Council of Europe doc. 7169 (6 October 1994) Report on the
application by Latvia for membership of the Council of Europe (Rapporteur: Mr Espersen, Denmark, Socialist
Group) annex VII; James Hughes, ‘Exit in Deeply Divided Societies: Regimes of Discrimination in Estonia
and Latvia and the Potential for Russophone Migration’ 43 JCMS (2005) 739, 743-744.
territory.105 The Congresses of these two States106 considered persons who had moved to
Estonia or Latvia during the Soviet reign ‘as at worst colonial occupiers, and at best
immigrants’.107 Certainly the developing policies in the two States contained an element of
seeking revenge on the Russophone communities.108
Calls were made of ‘a counter-attack against the colonists’ by a strong policy of discouraging
Soviet-era settlers from remaining in the restored States.109 There were other motives, related
to the future of the Baltic States. Those are considered in Part 4. However, radical
nationalism in the guise of legalistic restorationism was not the only voice in the Baltic
States.110 Eventually the moderate Popular Fronts in Estonia and Latvia, who advocated a
more liberal policy, toned down the debate. Even within the Estonian and Latvian nationalist
movements, the debate gradually coalesced around a consensus that the expulsion of the
immigrant population was politically impossible,111 and it was never seriously publicly
advocated.112 Instead, the debate focused on whether settlers would be entitled to citizenship
and under what conditions.
2.4.3 Transitional arrangements common to all three Baltic States
The formal citizenship policy in all three States reflected their formal legal position: all three
States reinstated their pre-1940 legislation. Consequently, original citizenship was made
available only to pre-1940 citizens and their descendants.113 Post-1940 settlers were entitled
to naturalize, provided they complied with the requirements under the law. In addition, in all
three States military personnel, both active and retired, were generally excluded from
naturalization. The details and specific implementation of these policies and subsequent
practice differed greatly among the three States.
2.4.4 Transitional Arrangements in Lithuania
In Lithuania the Russophone population constituted a relatively small minority compared
with the indigenous population, of less than 12%. It was not perceived as presenting a
serious threat. Accordingly, the Lithuanian citizenship legislation Lithuania is much more
inclusive than those of Estonia and Latvia. Under the 1989 citizenship law of Lithuania (at
the time still called the Lithuanian SSR), persons residing permanently in Lithuania on the
date of enactment of the law but not regarded as original citizens on the basis of pre-1940
nationality, namely post-1940 settlers and their descendants, were given two years114 to freely
105 Convention Relative to the Treatment of Civilian Persons in Time of War, 75 UNTS 287, Art. 49.
106 Elected transitional institutions. Pettai (2007), supra note 86, 6
107 Helsinki Watch, ‘New Citizenship Laws in the Republics of the Former USSR’ (1992) 1-2, quoted by Jean-
Marie Henckaerts, Mass Expulsion in Modern International Law and Practice, (1995) at 93.
108 Peet Kask ‘National radicalization in Estonia: Legislation on Citizenship and Related Issues’ (1994) 22
Nationalities Papers, 379, 387; Hughes (2005), supra note 104, 748.
109 Kask (1994), supra note 108, 386.
110 Helen M. Morris ‘EU Enlargement and Latvian Citizenship Policy’ 1/2003 Journal on Ethnopolitics and
Minority Issues in Europe (2003) 3, 3-4.
111 Hughes (2005), supra note 104, 747; Mälksoo (2003), supra note 86, 223-224.
112 But see on Latvia, below.
113 Estonia: Resolution of the Supreme Council of the Republic of Estonia “On Implementation of Citizenship
Act” (RT 1992, 7, 109); Latvia: On 15 October 1991 the Supreme Council of the Latvian SSR adopted the
Resolution on the Renewal of Republic of Latvia’s Nationals’ Rights and fundamental Principles of
Naturalization. The Resolution declared the invalidity of the ‘USSR Decree on the Order in which the
Lithuania, Latvia and Estonia SSR Nationals are Granted USSR Citizenship’ of 7 September 1940, and restored
the rights of Latvian nationals. Ziemele (2005), supra note 86, 155. Under the resolution, Latvian nationality was
reserved to nationals on 17 June 1940 and their descendants, as well as to persons who had been permanent
residents in Latvia on that date. Ziemele (2005), supra note 86, 155.
114 Until 4 November 1991.
declare their option for Lithuanian citizenship.115 The only condition for eligibility was to
have a permanent place of employment or constant legal source of support.116 One category
that was ineligible for nationality was retired servicemen, which in early 1995 numbered in
Lithuania almost 10,000, 30,000 with their families.117 Their presence in Lithuania was
deemed illegal, and their employment in the military not a lawful source of income.118 For the
same reason, Lithuania refused to commit itself to granting permanent residence to military
personnel.119 By implication, family members who arrived with the military personnel in
connection with their service were probably also prevented from remaining in Lithuania.
After the expiry of the option’s deadline, Soviet-era settlers could naturalize under the same
terms as other aliens.120 In this respect they were neither discriminated against nor entitled to
any concessions. By 2000, 99% of the Lithuanian population held Lithuanian citizenship.121
2.4.5 Transitional arrangements in Estonia
Upon regaining independence, Estonia reintroduced its pre-Soviet, 1938 Law on Citizenship
(later replaced by the 1995 Law on Citizenship). Persons seeking Estonian nationality other
than its pre-1940 nationals and their descendants had to comply with the requirements for
naturalization, which included long-term residence and knowledge of Estonian. The earliest
date of residence qualifying for naturalization was 30 March 1990, the date on which the
Supreme Council of the Estonian Soviet Republic proclaimed the illegality of Soviet rule and
proclaimed the restoration of the Republic of Estonia122. In other words, as in East Timor,
settlers under the Soviet regime could not benefit, to satisfy the requirements for
naturalization, from their residence in the territory during the period of purported
annexation. Active and retired foreign military personnel were entirely prevented from
acquiring Estonian nationality, with the exception of retirees who have been married for 5
years to an Estonian national by birth.123 The greatest obstacle for Soviet-era settlers in
115 Citizenship Law, 1989, Art. 1(3).
116 W. Rogers Brubaker ‘Citizenship Struggles in Soviet Successor States’ 26 International Migration Review
(1992) 269, 280. Constitutional Court of the Republic of Lithuania ruling on the compliance of the Seimas of
the Republic of Lithuania resolution "On amending item 5 of the resolution of the Supreme Council of the
Republic of Lithuania "On the procedure for implementing the Republic of Lithuania Law on Citizenship",
adopted 22 December 1993, with the Constitution of the Republic of Lithuania, Case 7/94, 13 April 1994.
117 Ceslovas Stankevicius ‘Enhancing Security of Lithuania and Other Baltic States in 1992-94 and Future
Guidelines’ (1996) Final Report of Individual Democratic Institutions Research Fellowships 1994-1996
chapter 6 para. 21 http://www.nato.int/acad/fellow/94-96/stankevi/home.htm (last visit 14 February 2008).
118 Constitutional Court of the Republic of Lithuania ruling on the compliance of the Seimas of the Republic of
Lithuania resolution "On amending item 5 of the resolution of the Supreme Council of the Republic of
Lithuania "On the procedure for implementing the Republic of Lithuania Law on Citizenship", adopted 22
December 1993, with the Constitution of the Republic of Lithuania, Case 7/94, 13 April 1994.
119 Stankevicius (1996), supra note 117, chapter 6.
120 Law of the Republic of Lithuania on Citizenship (5 January 1991, No. I-2072), amended since then various
times and replaced by the 2002 Law on Citizenship.
121 Statistical Office of Estonia, Central Statistical Bureau of Latvia and Statistics Lithuania, ‘2000 Round of
Population and Housing Censuses in Estonia, Latvia and Lithuania’ (Vilnius, 2003) p. 33. In 2002 the
citizenship law was replaced by Lithuania Law on Citizenship (17 September 2002 No. IX-1078). The
provisions relating to Soviet-era immigrants remain the same.
122 Resolution of the Supreme Soviet of the Estonian SSR ‘On the State Status of Estonia’.
123 Estonian 1995 Law on Citizenship Art. 21(1)6), (2). The discrimination of citizens by naturalization by this
particular legal clause was unsuccessfully challenged in Estonian courts. The general scheme of Art. 21 (without
reference to the differentiation by status of spouse) was confirmed as justified on grounds of national security
by the Human Rights Committee in Vjatšeslav Borzov v. Estonia, Communication No. 1136/2002, U.N. Doc.
CCPR/C/81/D/1136/2002 (2004).
naturalization was not, however, the requirement of residence. It was their poor command
of Estonian.
The status of persons who did not acquire Estonian citizenship is regulated under the 1992
Aliens Law, which required all aliens, including pre-1990 long-term residents, to apply for a
resident permit within two years.124 The requirements were not such that Russophone
settlers could not, on the whole, satisfy, although the financial cost was high.125 By 1996
practically all settlers could register for residence permits.126
Language requirements underwent various changes, eventually relaxed under pressure by the
EU, OSCE and Council of Europe.127 This allowed greater access for settlers to Estonian
Special arrangements apply to retired servicemen, who in 1995 numbered 10,500 and 40,000
with their families.128 They are expressly precluded from acquiring Estonian citizenship.129
Under the Agreement between the Republic of Estonia and the Russian Federation on Social
Guarantees for Pensioners of the Armed Forces of the Russian Federation in the Territory
of the Republic of Estonia,130 Estonia undertook to secure residential status for retired
servicemen and their families who do not constitute a threat to national security. Following
a long period of uncertainty as to the regulation of the status of retired servicemen,131
Estonian domestic law was amended in 2004 to reflect this commitment. It allows retired
servicemen to obtain temporary residence permits.132 Active members of a foreign army are
deemed as a threat to national security133 and are thus not entitled even to temporary
By 2006, 82% of the population resident in Estonia held Estonian nationality. Estonia’s
naturalization legislation is still criticized for being overly exclusive,135 as 8% of the resident
population remained with no nationality at all.136
2.4.6 Transitional arrangements in Latvia
The Soviet Army’s Baltic region’s headquarters was placed in Riga, making Latvia a preferred
retirement place for Soviet officers. As a result, many of the Soviet-era settlers in Latvia were
Soviet military officers.137 In 1989 only 52% of the population of Latvia was ethnic Latvians.
124 The deadline was later extended.
125 Ziemele (2005), supra note 86, 316-317.
126 ‘Honouring of obligations and commitments by Estonia’, Report by the Committee on Legal Affairs and
Human Rights PACE Doc 7715 (20 Dec 1996) explanatory note para. 16: ‘It can be expected of the aliens
currently living in Estonia that they register themselves with the state, instead of simply not acting at all. These
people have only themselves to blame, if they are open to deportation now.’
127 For an account of these organizations’ involvement until 1999 see Lowell W. Barrington ‘The Making of
Citizenship Policy in the Baltic States’ 13 Geo. Immigration LJ 159 (1999) 191-197.
128 Stankevicius (1996), supra note 117, chapter 6 para. 21.
129 Estonian 1995 Law on Citizenship, Art. 21.
130 Published in RT II 1995, 46, 203. cited in Vadim Poleshchuk ‘Non-citizens in Estonia’ (Legal Information
Centre for Human Rights, 2004) 11.
131 Estonia CERD 6-7th report para. 91: in 2004
132 Art. 12(21)(5) As amended on 17 December 2003 and entered into force on 16 January 2004 - RT I 2004, 2,
133 Art. 12(21)(6).
134 Aliens Act Art. 12(6). The same applies to reserve forces, ibid.
135 Concluding observations of the Committee on the Elimination of Racial Discrimination
ESTONIA CERD/C/EST/CO/7 (19 October 2006) para. 15.
136 Estonia Citizenship and Migration Board 2006 Yearbook p. 13. http://www.mig.ee/eng/CMB/ (last
accessed 12 Oct 2007)
137 Ziemele (2005), supra note 86, 364.
Latvia’s citizenship policy was the most exclusive of the three Baltic States, reflecting what it
perceived as a threat posed by a large non-titular minority.138 As a result, over half a million
individuals (most of which were Soviet-era settlers), constituting over 22% of the population,
were stateless.139 Latvia’s immediate post-transition policy excluded such settlers not only
from citizenship but potentially even from residence. In 1993 the OSCE Commissioner for
National Minorities expressed his concern that denial of citizenship and expulsions on a
massive scale would be contrary to generally accepted international humanitarian principles,
might endanger the stability of the country, and would probably have very serious
international repercussions.140
Subsequent legislation regulated the acquisition of Latvian nationality by naturalization.
However, this became a real option only in 1994, when the Law on Citizenship was
promulgated.141 Naturalization was contingent upon a minimum residence of five years.
Similarly to Estonia and East Timor, the earliest date qualifying for residence was 4 May
1990, the date of Latvia’s Declaration of Restoration of Independence.142 Additional
requirements were fluency in the Latvian language, Constitution and history, a loyalty oath to
the State, a legitimate source of income,143 and an application fee.144 As in Estonia, the
residence requirement, despite its late qualifying date, was not the main obstacle to
naturalization. Rather, the standards required with regard to fluency in Latvian and
knowledge of the constitution and history were outrageously high145 and together with the
exorbitant fee (a month’s wages) discouraged applications and resulted in a large population
of non-nationals, primarily Soviet-era settlers and their families.
By 1998 there were demonstrations in Riga and violence erupted. Russia was threatening to
place sanctions on Latvia.146 Throughout this period the OSCE and the European
Commission were heavily involved and exerted pressure on Latvia. Latvia’s aspirations to
join the EU and NATO led it to take a softer line and the requirements for naturalization
were gradually relaxed.147 There have since been waves of requests for naturalization, with
138 Recommendations by the CSCE High Commissioner on National Minorities upon his visits to Estonia,
Latvia and Lithuania, CSCE Communication No. 124 (Prague, 23 April 1993)
http://www.osce.org/documents/html/pdftohtml/2728_en.pdf.html (last accessed 12 Oct 2007) p. 7.
139 European Commission 2002 regular report on Latvia’s progress towards accession at 30, URL at Taube 512
ft 7
140 Recommendations by the CSCE High Commissioner on National Minorities upon his visits to Estonia,
Latvia and Lithuania, CSCE Communication No. 124 (Prague, 23 April 1993) p. 8
http://www.osce.org/documents/html/pdftohtml/2728_en.pdf.html (last accessed 12 Oct 2007);
Recommendations by the CSCE High Commissioner on National Minorities about the Latvian Draft
Citizenship Law, CSCE Communication No. 8 (Vienna, 31 January 1994)
http://www.osce.org/documents/html/pdftohtml/2729_en.pdf.html (last accessed 12 Oct 2007) p. 3.
141 Ziemele (2005), supra note 86, 150.
142 Resolution of the Supreme Soviet of the Estonian SSR ‘On the State Status of Estonia’.
143 Latvia 1994 Law on Citizenship Art. 12
144 Application for naturalization was possible, from 1998 through ‘naturalization windows’, reserving certain
periods of time for persons of different ages. This raised a lot of international criticism, and in 1999 these
‘windows’ were abolished.
145 For examples of ludicrous questions see OSCE High Commissioner on National Minorities letter dated 23
May 1997 to the Minister for Foreign Affairs of the Republic of Latvia and the letter of reply, dated 11
September 1997, HCNM.GAL/1/97 (11 September 1997),
http://www.osce.org/documents/html/pdftohtml/2733_en.pdf.html (12 Oct 2007).
146 Stanga article.
147 OSCE High Commissioner on National Minorities letter dated 23 May 1997 to the Minister for Foreign
Affairs of the Republic of Latvia and the letter of reply, dated 11 September 1997, HCNM.GAL/1/97 (11
surges in 1999 and in 2004, shortly before the entry of Latvia into the EU. By April 2007, the
number of non-nationals resident in Latvia was about 418,000,148 making up about 18% of
the entire population of Latvia.
In view of the obstacles facing Soviet-era settlers in obtaining Latvian nationality, their status
as residents gained importance. Latvian legislation on the matter was for a long time
inconsistent and unclear, leading to unreasonable and arbitrary executive decision, including
of expulsion.149 Ziemele argues that executive action resulted from lack of detailed analysis of
the situation of different groups of residence and lack of clear political and legal guidance
rather than from a unified government view that all Soviet-era settlers should be expelled or
that their residence should be challenged en masse.150 But the inability to formulate clear
policy151 was itself the result of the heated political debate on the future identity of Latvia.
Not surprisingly, throughout the 1990s the Latvian citizenship and residence policy was a
highly contentious political issue.152
In 1995 the Law on the Status of Former USSR Citizens Who Are Not Citizens of Latvia or
any Other State finally determined the right of former USSR nationals, resident in Latvia
before 1992 and registered there, to permanent residence.153 Inconsistencies remain with
respect to the requirement of previous registration, as the Soviet system provided for various
types of registration.154 Latvia is still criticized for not sufficiently integrating the Russophone
permanent residents into Latvian society.155 For example, Non-nationals still cannot hold
offices in public administration and court system, they cannot participate in elections and
cannot be elected, and they may not acquire in ownership land in borderland zone and in
protective zone for public water bodies. Non-citizens may not work as lawyers,156 private
detectives or armed guards.157
Article 11 of the 1994 Law on Citizenship bars both active and retired military servicemen of
foreign States from acquiring Latvian citizenship158, with the exception of those who had
been permanent residents prior to conscription. This is similar to the arrangements in
Lithuania and Estonia.
The residence of retired military personnel was regulated in a 1994 Latvian-Russian Treaty
on the Conditions and Schedule for the Complete Withdrawal of Russian Federation Military
September 1997), http://www.osce.org/documents/html/pdftohtml/2733_en.pdf.html (last accessed 12 Oct
148 Data of the Board for Citizenship and Migration Affairs – 1 January 2008,
http://www.np.gov.lv/index.php?en=fakti_en&saite=residents.htm (last accessed 30 September 2008).
149 Ziemele (2005), supra note 86, 160-162.
150 Ziemele (2005), supra note 86, 164
151 Pettai (2007), supra note 86.
152 With respect to the issue of ‘windows’ see for example the letter of the Minister of Foreign Affairs of the
Tepublic of Latvia to OSCE High Commissioner on National Minorities, dated 10
December 1996, OSCE Doc. REF HC/2/97 (7 Jan 1997)
http://www.osce.org/documents/html/pdftohtml/2731_en.pdf.html (12 Oct 2007).
153 Latvia 1995 Law Art. 1.
154 Ziemele (2005), supra note 86, 162.
155 PACE Doc. 11094 from 2006; Concluding observations of the Committee on the Elimination of Racial
Discrimination: LATVIA CERD/C/63/CO/7 (10 December 2003) paras. 12, 13.
156 Latvian Centre for Human Rights and Ethnic Studies ‘Human Rights in Latvia in 2004’ p. 23.
157 Latvia Second Periodic Report, UN Doc. CCPR/C/LVA/2002/2 (29 November 2002) para. 15.
158 Latvia 1994 Law on Citizenship Art. 11(3), (4), (5), (6).
Troops from the Territory of the Republic of Latvia and their Status Pending Withdrawal.159
Under Article 2 of the Treaty:
The Russian Federation's military troops shall leave the territory of the Republic of
Latvia by 31 August 1994.
The withdrawal of Russian Federation military troops shall concern all members of
the armed forces of the Russian Federation, members of their families and their
movable property.
Following the Russian withdrawal of troops from Latvia, which concluded in 31 August
1994, there were in Latvia some 22,000 retired servicemen, numbering 87,000 with their
The Latvian 1992 Aliens and Stateless Persons (Entry and Residence)161 (‘Aliens Act’) barred
from permanent residence persons who retired from active military service after 28 June
1992 (unless they had been permanent residents when taking up service or family member of
a Latvian national) and their immediate families if, irrespective of the date of their arrival,
they arrived in Latvia in connection with that service.162
2.5.1 Background
The population of the island of Cyprus, all together over a million persons today,164
comprises approximately 80% Greek Cypriots of Christian faith and 20% Turkish Cypriots
of Muslim faith. In 1960 Cyprus gained independence from British rule. Division between
the two populations and civil disturbances erupted almost immediately.165 They peaked in
July 1974, following a coup d’état by Greek Cypriots favouring a union of Cyprus with
Greece. In response to the coup, Turkey invaded Cyprus, claiming that it was exercising its
rights under the 1960 Treaty of Guarantee to protect the Turkish-Cypriot population.
During the military conflict, which continued until early 1975, practically all Greek Cypriots
fled their homes in the northern part of the island and moved to the south, while most
Turkish Cypriots fled from their homes in the southern part of the island to the north. The
Turkish-held territory set up its own administration under the name Turkish Federated State
159 Signed in Moscow on 30 April 1994, published in Latvijas Vēstnesis (Official Gazette) on 10 December 1994,
came into force on 27 February 1995.
160 Stankevicius (1996), supra note 117, chapter 6 para. 21.
161 Act of 9 June 1992
162 As amended in 1996, Art. 23(2), (3). A similar outcome was achieved earlier by the Immigration law of 1992
and also under the 1995 Law on the Status of Those Former USSR Citizens who do not have the Citizenship
of Latvia or that of any Other State. Art. 1(3).
163 For general references on the establishment of the TRNC, on the international reaction and on proposals
for solutions, see: S.K.N. Blay, Self-Determination in Cyprus: The New Dimensions of an Old Conflict, 10
Australian Yearbook of International Law (1981-1983) 67; R.R. Denktas, The Crux of the Cyprus Problem, IV
Perceptions (1999) 5; C.H. Dodd, The Cyprus Imbroglio 78-82 (1998); J. Dugard, supra note 2, 108-111; Z.M.
Necatigil [published as Nedjatigil], The Cyprus Conflict - A Lawyer’s View (2nd ed) (1982); Z.M. Necatigil [published
as Nejatigil], Our Republic in Perspective (Nicosia: Tezel Offset); Z.M. Necatigil, The Cyprus Question and the Turkish
Position in International Law (2nd ed) (1993); Z.M. Necatigil, The Legal System of the Turkish Republic of
Northern Cyprus, 4 Journal of Cyprus Studies 213 (1998); C. Palley, An International Relations Debacle The UN
Secretary-General’s Mission of Good Offices in Cyprus 1999-2004 (2005); O.P. Richmond, Mediating in Cyprus, the
Cypriot Communities and the United Nations (1998).
164 The Government of Cyprus 2006 ?? estimates the population of Government-controlled areas at 867,600.
Government of Cyprus Statistical Service Demographic Report 2006 p. 11. Estimates on the population of the
TRNC vary as discussed below, but exceed 150,000.
165 UN Security Council Resolution 186 (1964) of 4 March 1964.
of Cyprus (TFSC). In November 1983 the Turkish Cypriot community declared the
independence of the Turkish Republic of Northern Cyprus (TRNC).166
The TRNC was immediately recognized as an independent State by Turkey. The Security
Council declared the declaration of independence legally invalid and called upon all States
not to recognise any Cypriot State other than the Republic of Cyprus.167 This call has been
adhered to by all States168 except Turkey. The refusal to recognize the TRNC is based on the
violation by Turkey in 1974 of the prohibition on the use of force and of the right of Cyprus
to self-determination.169
Attempts to resolve the conflict170 climaxed in April 2004, when the UN Secretary-General
presented the populations of both parts of the island with a draft Comprehensive Settlement
of the Cyprus Problem (the “Annan Plan”), proposing a federated United Cyprus Republic
(UCR).171 In simultaneously held referenda on 24 April 2004, a majority of TRNC voters
approved the Annan Plan, while in the south, the majority of voters rejected it. Without
acceptance on both sides, the Plan did not materialize. Nonetheless, it is valuable as an
indication of what the international community, acting through the UN Secretary-General,
considers an acceptable compromise.172 Moreover, both Greek Cypriots leaders and Turkey
166 Declaration of Independence by Turkish Cypriot Parliament on 15 November 1983; UN Security Council,
UN Doc A/38/586 S/16148 (16 November 1983).
167 UN Security Council, Resolution 541 (18 November 1983), UN Security Council, Resolution 550 (11 May
168 European Community (EC) Bulletin 11-1983 point 2.4.1, 16 November 1983; Press communiqué of the
Commonwealth Heads of Government, 29 November 1983, cited in ECtHR Grand Chamber 18 December
1996, Loizidou v. Turkey (Merits), Judgment of 18 December 1996 Reports of Judgments & Decisions 1996-VI
2216 [23].
169 eg Council of Europe Parliamentary Assembly Recommendation 974 (1983) on the Situation in Cyprus (23
November 1983) [12(c)]. J. Dugard, supra note 2, 110. This aspect of the affair is entirely absent from the
opinion of Sir (then Mr) Eli Lauterpacht CBE QC Turkish Republic of Northern Cyprus, the Status of the
Two Communities in Cyprus’ UN Doc A/44/968 S/21463 Letter from the Permanent Representative of
Turkey to the United Nations Addressed to the Secretary-General (9 August 1990). The TNRC argues that
Turkey’s recourse to force was within its rights – and obligation - under the 1960 Treaty of Guarantee, to
protect the Turkish-Cypriot population, Necatigil (1993), supra note 163. Yet even if the Treaty of Guarantee
permits the use of force, it could not override the customary prohibition on the use of force embodied in the
UN Charter. For a discussion of this debate, see C.H. Dodd, supra note 67, 80; Z.M. Necatigil (1982), supra note
163, ch 4. Security Council Resolutions give the impression that the unlawfulness with which the Security
Council was concerned was the violation of the 1960 Treaties (A point disputed by the TRNC. eg Necatigil
(1993), supra note 163, 324), and possibly the secession. It is submitted that the violation of the 1960 Treaties is
not opposable to States not parties to the Treaties, while secession is not an unlawful act. J. Crawford, State
Practice and International Law in Relation to Succession, 69 British Yearbook of International Law 85, 86-87
170 Richmond (1998) supra note 163; Necatigil (1982), supra note 163, 147-164; C. Palley (2005), supra note 163,
15-16; eg UN Doc S/24472 Report of the Secretary-General on his Mission of Good Offices in Cyprus,
containing Proximity Talks Leading to Set of Ideas on an Overall Framework Agreement on Cyprus (21 August
171 The discussion in this work is based on the final version of the Annan Plan, dated 31 March 2004
(Comprehensive Settlement of the Cyprus Problem as finalised on 31 March 2004
http://www.hri.org/docs/annan/ (last visit: 3 October 2007)). It is not suggested that the Plan in any way
binds either party to the dispute or the UN Secretary-General.
172 European Parliament Resolution 21 April 2004, ‘Prospects for the Unification of Cyprus’; Matthew Bryza,
Deputy Assistant Secretary for European and Eurasian Affairs, Roundtable with Turkish Journalists,
Washington, DC (1 February, 2007) http://turkey.usembassy.gov/statement_020107.html (last visit 15
February 2008).
regard the Annan Plan as the basis for further negotiations.173 At the time of writing the
Cyprus conflict persists. The following analysis is based on the Annan Plan.
2.5.2 Settlers in the TRNC
In 1974 Turkish Cypriots numbered about 118,000.174 Since then the composition of this
population, residing mostly in the territory now under TRNC rule, has changed dramatically.
In addition to the flight of Greek Cypriots from the north,175 the arrival of displaced Turkish
Cypriots from the south, and massive emigration of Turkish Cypriots in later years,176 the
most significant demographic change in the TRNC, and on which this article focuses, is the
settlement of mainland Turks, with the encouragement of both Turkey and the TRNC. Two
large waves of settlers arrived in 1975 and 1977. These were estimated to make up more than
10% to the Turkish-Cypriot population of the territory at the time.177 Another wave of
mainland Turks arrived in the early 2000s as construction workers, following a building
boom in the TRNC.
Until 2004 TRNC legislation was very permissive with regard to acquisition of TRNC
citizenship. Law no. 3/1975 of the TFSC made it discretionary upon request and, in
particular, available to members of the Turkish armed forces who had served in Cyprus and
their families.178 In 1981 complementary provisions were established according to which
Turkish-Cypriot nationality could be granted to persons permanently resident in the territory
for at least one year, those who made or could make an important contribution to the
economy, or social and cultural life, and those who have rendered services to the security
forces.179 The 1983 constitution of the TRNC provides that original citizens of the TRNC
include original citizens of the Republic of Cyprus ordinarily resident in the TRNC when it
declared independence, and citizens of the TFSC.180 A 1993 TRNC law181 confers original
TRNC citizenship on persons born to a TRNC parent.182 TRNC citizenship is also available
to spouses of TRNC citizens.183 In addition, the law provides for discretionary naturalization
for various categories of aliens. Ordinarily, naturalization is contingent upon a five-year
residence in the TRNC.184 However, certain categories of individuals are exempt from this
requirement. These include veterans of the 1974 Peace Operation and their families;185 and
173 UK House of Commons Foreign Affairs Committee ‘Visit to Turkey and Cyprus’ Fifth Report of Session
2006–07 Doc. No. HC 473 (9 May 2007) paras. 55, 81.
174 Department of Statistics and Research of the Republic of Cyprus, quoted in ‘The Demographic Structure of
Cyprus’, PACE Doc 6589 (27 April 1992 ), Report of the Committee on Migration, Refugees and
Demography, Rapporteur: Mr Alfons Cuco (‘Cuco Report’) para. 35.
175 UN and ICRC estimates of 43,000, quoted in ‘Colonisation by Turkish settlers of the Occupied part of
Cyprus’ PACE Doc. 9799 (2 May 2003) Report of the Committee on Migration, Refugees and Demography,
Rapporteur: Mr Jaakko Laaks (‘Laakso Report’) para. 18. The TRNC reports 65,000 displaced Turkish Cypriots.
176 UK House of Commons Foreign Affairs Committee ‘Cyprus’ Second Report of Session 2004-5 Doc. No.
113-I (22 February 2005) para. 201, based on the Laakso Report, supra note 175, appendix 5.
177 Cuco Report, supra note 174, para. 89.
178 On the practical consequences of this law see Mete Hatay ‘Beyond Numbers: An Inquiry into the Political
Integration of the Turkish ‘Settlers’ in Northern Cyprus’ PRIO Report 4 (2005) 11.
179 Laakso Report, supra note 175, 37-38.
180 TRNC Constitution Art. 67
181 Law 52/1993 of 27 May 1993.
182 Art. 4(1).
183 Art. 7.
184 Art. 8(B).
185 Art. 9(1)(D)
persons ‘who have rendered services after 1 August 1958 in the cadres of the Turkish
Resistance Organization in the TRNC186 and their families.187
Finally, according to the Government of Cyprus, on 12 October 2004 a protocol was signed
between Turkey and the TRNC to regularize the presence of the construction workers
arriving in the 2000s, adding some 40,000 new residents – and potential citizens - to the
Since 2004, granting TRNC citizenship has become more selective,189 and mass grants, which
were apparently a common occurrence, subsided. In 2007 a draft law was tabled, under
which naturalization would be contingent upon five years’ work followed by five years’
residence in the TRNC.190
Turkish nationals may retain their nationality even when acquiring a new one.191 Their
children are Turkish nationals from birth.192 At the same time, under Cypriot law, Pre-1974
Cypriot nationals and their descendants are eligible for citizenship.193 Accordingly, Children
of mixed marriages between settlers and local Turkish Cypriots are nationals of the Republic
of Cyprus, although the Republic does not routinely acknowledge their status.194
The demographic composition of the TRNC is difficult to establish. Censuses carried out by
the TRNC are rejected by the Government of Cyprus as unreliable and intentionally
misleading as to the number of Turkish settlers. The population categories used by the
opposing sides are defined differently, frustrating any attempt at comparing data.195 The
186 Art. 9(1)(E). The Turkish Resistance Organization (TMT) was a locally-established paramilitary force,
engaged according to the Turkish-Cypriot narrative in protection of Turkish Cypriots against Greek-Cypriot
violence, and in terrorism, according to the Greek-Cypriot narrative.
187 Art. 9(2).
188 The Protocol authorized the residence of Turkish nationals present in the TRNC and employed there at the
time of the protocol’s entry into force, namely 1 January 2005. This means that Turkish nationals who on 12
October 2004 were residing in Turkey, had a 3-month window wherein to transfer to the TRNC so as to take
advantage of the protocol. Observations made by the Ministry of Foreign Affairs of Cyprus, annexed to
European Commission against Racism and Intolerance (ECRI) Third Report on Cyprus (adopted 16 December
2005) p. 42. The mass arrival of construction workers was partly linked to the release of bonds related to
Greek-Cypriot abandoned property that until then prevented building improvements.
189 UK House of Commons Foreign Affairs Committee ‘Visit to Turkey and Cyprus’ Fifth Report of Session
2006–07 Doc. No. HC 473 (9 May 2007) para. 106.
190 There are indications that the toughening of requirements is causing tension in TRNC-Turkish relations.
E.g. ‘Fifty thousand persons will reportedly be gradually made “citizens” of the “TRNC”’ Turkish Mass Media
Bulletin 18/12/2007, Republic of Cyprus Press and Information Office,
http://www.pio.gov.cy/moi/pio/pio.nsf/All/93E64B0FF93CE004C22573B5003F5F17?OpenDocument (last
visit 11 February 2008).
191 The Turkish Nationality law as amended in 1981 permits the acquisition of another nationality (TRNC
nationality being recognized by Turkey) without renunciation of Turkish Nationality. The only condition for
dual nationality is to obtain permission of the Ministry of Interior. Dual nationality is encouraged since the
1980s. Bilgin Tıryakıoğlu ‘Multiple Citizenship and its Consequences in Turkish Law’ 3 Ankara Law Review
(2006)1, 5-6, 9.
192 Turkish Nationality law, Art. 1 as amended in 2004.
193 The Republic of Cyprus Citizenship Law, No. 43 of 1967, Art. 4.
194 US Human Rights Country Practice 2006 Report on Cyprus. UK House of Commons Foreign Affairs
Committee ‘Visit to Turkey and Cyprus’ Fifth Report of Session 2006–07 Doc. No. HC 473 (9 May 2007),
para. 113.
195 ‘How Many Turkish Cypriots Remain in Cyprus’ Written evidence before the select committee of the House
of Commons http://www.publications.parliament.uk/pa/cm200405/cmselect/cmfaff/113/113we33.htm
Council of Europe has initiated a number of studies on the population of the TRNC.196
Palley argues that the TRNC Government objected to these initiatives because it was
reluctant to expose the large number of Turkish settlers.197 In view of these difficulties, data
on the number of settlers vary enormously: in 2003 the Parliamentary Assembly of the
Council of Europe endorsed an estimate of 115,000 settlers, concluding that by 2000, at the
latest, mainland Turkish settlers have outnumbered indigenous Turkish Cypriots.198 In 2007
The UK House of Commons quoted the number of 200,000 permanent residents, of which
only about 50,000 are permanent Turkish settlers and another 100,000 are short-term
residents, mostly Turkish.199 A 2006 TRNC census quotes the total number of immigrants
from Turkey since the 1970s at close to 95,000, and of immigrants from other origins at over
7,500.200 The Government of Cyprus, on the basis of the same census, calculates the number
of settlers at 150,000-160,000.201 The Turkish Government estimated that the number of
Turkish settlers in 2003-4 was 31,000.202
Turkish Settlers fall into two main categories. The vast majority are peasants and shepherds
who arrived between 1975 and 1977 from poor regions in turkey.203 These farmers were
invited by radio and by announcements by muhtars made in Turkish village coffee-shops.204
A small minority, but holding significant political clout, comprises professionals, business
men, retired military officers and former students.205 They mainly live in mixed
neighbourhoods in urban areas and are often married to Turkish Cypriots.206The rural Turks
have low professional skills and their customs and traditions differ in a significant way from
those in Cyprus.207 The Government of Cyprus claims (with the endorsement of the Council
of Europe) that these differences are the main reason for the tensions and dissatisfaction of
the indigenous Turkish-Cypriot population who tends to view the settlers as a foreign
element.208 Although their immigration to the TRNC was politically motivated and facilitated
196 E.g. Cuco Report, supra note 174. For detailed analysis of data see Laakso Report, supra note 175; UK House
of Commons Foreign Affairs Committee ‘Cyprus’ Second Report of Session 2004-5 Doc. NO. 113-I (22
February 2005) p. 62-63.
197 Palley (2005) supra note 163.
198 Laakso Report, supra note 175, paras. 24-27 and the appendices provide detailed (and conflicting) data,
concluding that settlers have outnumbered the local population since 2000. Additional data is available in the
UK House of Commons Foreign Affairs Committee ‘Cyprus’ Second Report of Session 2004-5 Doc. NO. 113-
I (22 February 2005).
199 UK House of Commons Foreign Affairs Committee ‘Visit to Turkey and Cyprus’ Fifth Report of Session
2006–07 Doc. No. HC 473 (9 May 2007) para. 104.
200 The Final Results of TRNC General Population and Housing Unit Census, Additional Tables,
http://nufussayimi.devplan.org/Kesin-sonuc-index_en.html (last accessed 30 Sept 2008).
201 Analysis of the ‘2006 Population Census’ in the Occupied Area of Cyprus and Aide Memoire, produced by
the Government of Cyprus PIO, on file with the author.
202 Laakso Report, supra note 175, para. 24
203 Trabzon (East Black Sea), Antalya, Mersin, Adana (Southern Turkey), Çar amba, Samsun (West Black Sea),
Konya (Central Anatolia) and southeastern Turkey.
204 Hatay (2005), supra note 178, 12-13.
205 Cuco Report, supra note 174, para. 90, Hatay (2005), supra note 178, 11-13.
206 UK House of Commons Foreign Affairs Committee ‘Cyprus’ Second Report of Session 2004-5 Doc. No.
113-I (22 February 2005) para. 54. In 1992, the Cuco Report quoted the figure of 1500 intermarriages notified
between 1974 and 1990 to the Turkish Consulate in the TRNC, Cuco Report, supra note 174, para. 82. Hatay
(2005), supra note 178, 12 quotes the number of Peace Force veterans married to Turkish Cypriots at around
207 Hatay (2005), supra note 178, 49-50.
208 ‘Colonisation by Turkish settlers of the occupied part of Cyprus’ Report of the Committee on Migration,
Refugees and Demography, 2 May 2003, Laakso Report, supra note 175, paras. 40-43; PACE Recommendation
by the Turkish and TRNC Governments, they themselves were not politically motivated in
coming. It is quite plausible that a substantial number of them had little or no clear idea of
where Cyprus was located before their arrival. They do not form a monolithic group and
they do not all support a nationalist agenda.209 The UK House of Commons mission to
Cyprus reported that the settlers, unlike Turkish Cypriots, feel they have nothing in common
with Greek Cypriots.210 Nonetheless, because of their number, Turkish settlers have a
growing impact on the political climate in the TRNC.
2.5.3 Transitional arrangements under the Annan Plan
The Annan Plan does not spell out the status of the TRNC. This is an obvious consequence
of the attempt to satisfy both Greek and the Turkish Cypriots. Main Article 12 of the
Foundation Agreement, entitled ‘Past Acts’, provides for legal continuity between the TRNC
and UCR:
1. Any act, whether of a legislative, executive or judicial nature, by any authority in
Cyprus whatsoever, prior to entry into force of this Agreement, is recognised as valid
and, provided it is not inconsistent with or repugnant to any other provision of this
Agreement or international law, its effect shall continue following entry into force of
this Agreement. No-one shall be able to contest the validity of such acts by reason
of what occurred prior to entry into force of this Agreement.
2. Any claims for liability or compensation arising from acts prior to this Agreement
shall, insofar as they are not otherwise regulated by the provisions of this Agreement,
be dealt with by the constituent state from which the claimant hails.
An observation appended to Main Article 12 indicates:
This reference, like the whole draft Article, is without prejudice to the question of
the legitimacy or status of the relevant authorities under international law.
However, another observation to Main Article 12 excludes citizenship and immigration from
this arrangement, and provides:
Matters of citizenship, immigration, and properties affected by events since 1963 are
dealt with in a comprehensive way by this Agreement; any validity of acts prior to
entry into force of this Agreement regarding these matters shall thus end unless they
are in conformity with the relevant provisions of this Agreement.
The starting point of the Annan Plan was that original citizenship in the UCR would not
cover persons who received such citizenship from the TRNC (or the TFSC), mainly settlers
from mainland Turkey. However, this did not mean that all settlers would have to leave the
territory, as specific provisions are made with respect to the nationality and residence in the
UCR of such people.
The Draft Federal Law on Citizenship of the United Cyprus Republic211 defines as original
citizens of the UCR persons who had Cypriot citizenship in 1963 and their descendants.
However, although the Government of Cyprus argues that under the law of occupation212
1197 (1992) on the demographic structure of the Cypriot communities adopted on 7 Oct 1992 para. 7; Leonard W. Doob
‘Cypriot Patriotism and Nationalism’ 30 Journal of Conflict Resolution (1986) 383, 394.
209 For an analysis of Turkish settlers’ politics see Hatay (2005), supra note 178, 7; Othon Anastasakis, Gilles
Bertrand & Kalypso Nicolaïdis ‘Getting to Yes: Suggestions for Embellishment of the Annan Plan for Cyprus’
(South East European Studies Programme (SEESP) European Studies Centre, St. Anthony’s College,
University if Oxford February 2004) 4.
210 Para. 77
211 Foundation Agreement, Annex III Attachment IV
212 Art. 49(6) of Geneva Convention IV, Art. 8 of the Statute of the International Criminal Court.
Turkey is obligated to remove its citizens from the TRNC, it conceded that the
consequences for individual settlers of long-standing should nonetheless be examined in a
humane fashion.213 Accordingly, from the outset of the negotiations on the Annan Plan it
was accepted that in addition to pre-1963 nationals and their descendants, concessions
would be towards long-term residents with respect to nationality and residence. On 31
August 2002, leader of the TRNC Denktash declared that there were only about 30,000
Turkish settlers and that persons who had gained citizenship of the TRNC should be
accommodated. Cyprus’s President Clerides agreed that subject to these being the correct
numbers he would not go into the past, but would accept the principle that whoever was a
‘citizen’ of either side would become a citizen of the new federation.214 From that time until
the final drafting of the Annan Plan, the numbers and categories of persons entitled to
original citizenship have undergone various changes. The final version of the Annan Plan
contains the following provision on original citizenship:215
Article 3 - Cypriot citizenship upon entry into force of the Foundation Agreement
Upon entry into force of the Foundation Agreement, the following persons shall be
considered citizens of the United Cyprus Republic:
a. Any person who held Cypriot citizenship in 1963 and his or her descendants and
the spouses of such citizens…
b. Any person whose name figures on a list handed over to the Secretary-General of
the United Nations by each side no later than 25 March 2003. Each side’s list may
number no more than 45,000 persons, inclusive of spouses and children, unless there
are specific reasons preventing such spouses and children from being considered
Cypriot citizens. The list shall contain the name of each person and the basis for
their inclusion on the list, as well as, where relevant, the date of their entry into
Cyprus. Applicants shall be included on the list based on the following criteria and in
the following order of priority:
i) persons 18 years of age or older who enjoyed permanent residence in Cyprus for at
least seven years before reaching the age of 18 and for at least one year during the
last five years and their minor children who enjoy permanent residence in Cyprus;
ii) other persons who have enjoyed permanent residence in Cyprus for more than
seven consecutive years, based on the length of their stay.
The Article further provided that the list would be made public, and individuals may appeal
against their own omission or the inclusion of others. Under the Annan Plan, there are no
bars to naturalization for Turkish military personnel.
Persons other than the 45,000 who receive original nationality may acquire Cypriot
nationality by naturalization in accordance with the Draft Federal Law on Citizenship. The
requisites for naturalization include nine years’ consecutive residence in the UCR.216 In order
213 Observations attached to ECRI Report p. 44.
214 Palley (2005) supra note 163, chapter XVII.
215 Draft Federal Law on Citizenship of the United Cyprus Republic, Annex III Attachment IV Art. 3. Part F of
the Annan Plan (entitled ‘Measures to be taken during April 2004’) includes the following item: ‘Hand over by
10 April 2004 to the Secretary-General the list numbering no more than 45,000 persons as specified in the
proposed Federal Law on Citizenship of the United Cyprus Republic (failing which the Citizenship Board shall,
after entry into force of the Foundation Agreement, prepare the list in accordance with that law).’
216 Art. 5.
to benefit from this provision, Turkish settlers need permission to remain in Cyprus until the
9-year period completes. Main Article 3 of the Foundation Agreement217 provides:
In addition, for a transitional period of 19 years or until Turkey’s accession to the
European Union, whichever is earlier, Cyprus may limit the right of Greek nationals to
reside in Cyprus if their number has reached 5% of the number of resident Cypriot
citizens holding Greek Cypriot internal constituent state citizenship status, or the right of
Turkish nationals to reside in Cyprus if their number has reached 5% of the number of
resident Cypriot citizens holding Turkish Cypriot internal constituent state citizenship
In other words, when the Agreement comes into force, settlers numbering up to 5% of the
population of the Turkish Cypriot constituent State, estimated at about 10,000, may remain
in the UCR as residents in expectation of eventual naturalization. According to Article 5 of
the Draft Federal Law on Citizenship, the nine years must include no less than four years
after the entry into force of the Foundation Agreement. Put differently, up to five years’
residence under the TRNC will be counted towards naturalization. In this the Annan Plan
differs from the arrangements in the Baltic States and East Timor, where residence under the
illegal regime was not counted towards naturalization.
Conclusions on the implications of the plan remain vastly disparate. The Cypriot Ministry of
Foreign Affairs claimed that under the 2004 version of the Plan, 111,000 Turkish settlers are
either entitled to UCR citizenship or to residence;218 the UK House of Commons concludes
that thousands of the Turkish settlers would have to leave the territory.219 The uncertainty is
the result not only of the lack of knowledge as to the actual number of settlers in the various
categories, but also of different readings of the agreement. Palley reports that the UN team
made different representation to each of the parties. For example, the Turkish Cypriot side
was told that spouses of Turkish Cypriots would be entitled to citizenship outside the 45,000
quota,220 while the Greek Cypriot side was given to understand differently. Different
expectations also exist with regard to thousands of students and academic staff.
The ambiguity of the situation is apparent in the difference between the July 2003 statement
of the Secretary-General’s Special Adviser’s own legal adviser, that ‘the Plan does not foresee
217 Echoed in Art. 3 of the Draft act of Adaptation of the Terms of Accession of the United Cyprus Republic
to the European Union.
218 UK House of Commons Foreign Affairs Committee ‘Cyprus’ Second Report of Session 2004-5 Doc. No.
113-I (22 February 2005) para. 59.
219 UK House of Commons Foreign Affairs Committee ‘Cyprus’ Second Report of Session 2004-5 Doc. No.
113-I (22 February 2005) para. 59. The UK Foreign Affairs Committee pointed out that about 42,000 Turkish
settlers who are not married to Turkish Cypriots would have to leave. UK House of Commons Foreign Affairs
Committee ‘Visit to Turkey and Cyprus’ Fifth Report of Session 2006–07 Doc. No. HC 473 (9 May 2007) para.
220 Draft Federal Law on Citizenship of the United Cyprus Republic, Annex III Attachment IV Art. 6. See also
Statement by the Secretary-General’s Special Adviser on Cyprus, Alvaro de Soto at the Joint meeting of the
Foreign Affairs Committee and the Delegation of the European Parliamentary Committee with the Republic of
Cyprus, Brussels, 14 April 2004.
that anybody will be forced to leave’;221 and the Secretary-General’s 2004 statement that
‘about half’ of the settlers would have to leave the island.222
The provisions of the Annan Plan and of any prospective alternative would require a
derogation from EU principles on the acquis communautaire, such as the freedom of
movement and establishment. Accordingly, Cyprus’ instrument of Accession to the EU
provides that since the European Union is ready to accommodate the terms of a settlement
of the Cyprus conflict in line with the principles on which the EU is founded, in the event of
a settlement, the Council will decide on the adaptations to the terms concerning the
accession of Cyprus to the European Union with regard to the Turkish Cypriot Community.
Until then, the application of the acquis in those areas of the Republic of Cyprus, where the
Government of the Republic does not exercise effective control is suspended.223
The practice of post-transition regimes with regard to the rights of settlers under the illegal
regime to remain in the territory is not uniform. In the South African cases – Rhodesia,
Namibia, and post-apartheid South Africa, complete continuity of status was offered. In
these cases, the core question was the status of the White community; this was not identical
wit the settler community. The main problems were therefore only marginally related to the
illegal regime, instead reflecting the challenges characteristic of decolonization. On the one
hand, In East Timor, the Baltic States and in Cyprus as envisaged under the Annan Plan,
there was formal reversal to the legal status quo ante. In East Timor this did not generate
any practical problems, because Indonesian-era settlers had already left of their own accord.
In contrast, in the Baltic States and in the TRNC, strict adherence to the reversal would have
had major repercussions. Additional arrangements were made which in practice allowed at
least some of the settlers to remain in the territory as residents and eventually to naturalize.
Parts 3 and 4 examine whether this was the result of benevolence, political pressure or legal
constraints, or a combination of these.
3.1 Relevant categories of individuals
International law places significant limitations on expulsion of certain categories of
individuals. The most prominent is nationals. Their expulsion is practically prohibited in
both universal and regional instruments. Relevant provisions for present purposes include
ECHR Protocol 4 Article 3(1) and ICCPR Article 12(4).224 Long-term residents, in contrast,
221 Didier Pfirter, Statement at a conference on “The Annan Plan: Myths and Realities,” at Bögaziçi University
in Istanbul on 17 July 2003 quoted in Comments by the Government of Cyprus on the Report of the Secretary
General on his Mission of Good Offices in Cyprus (S/2004/437 of 28 May 2004) para. 41, UK House of
Commons Foreign Affairs Committee, Cyprus - Second Report Volume II, Oral and written evidence HC113-
II Incorporating HC 1172 i-iv, Session 2003-04 (22 February 2005) p. 85.
222 Report of the Secretary-General on his mission of good offices in Cyprus, UNSC document S/2004/437,
para. 60.
223 Protocol No. 10 attached to the Treaty of Accession of Cyprus, signed on 16 April 2003 by the Republic of
Cyprus, Art. 4. See also the Draft Act of Adaptation to the Terms of Accession of the United Cyprus Republic
to the European Union, which addressed, inter alia, issues of residence, Arts 2,3, 5.
224 See also Art. 22(5) of the American Convention on Human Rights, 1144 UNTS (ACHR), Art. 22 of the
Arab Charter on Human Rights. The prohibition in Art. 12(4) is not absolute but is limited to ‘arbitrary’
deprivation, that is unreasonable in the circumstances, the HRC nonetheless ‘considers that there are few, if
any, circumstances in which deprivation of the right to enter one’s own country could be reasonable’.
Furthermore, Art. 12(4) has been interpreted as not only permitting entry into one’s own country, but also as
prohibiting expulsion from one’s own country. Mr. Bhagwati in Stewart v. Canada, Communication No
are not protected by virtue of their status alone by any of the major human rights
Article 12(4) was interpreted in depth by the Human Rights Committee (HRC) in Stewart v.
Canada in 1996. The applicant was a British citizen who had resided in Canada since the age
of seven. He was facing deportation from Canada on grounds of his criminal activity. The
HRC majority was of the view that the term ‘his own country’ in ICCPR Article 12(4)
‘applies to individuals who are nationals and to certain categories of individuals who, while
not nationals in a formal sense, are also not ‘aliens’ within the meaning of article 13, although
they may be considered as aliens for other purposes’.225 It added that the concept ‘his own
country’ ‘embraces, at the very least, an individual who, because of his special ties to or
claims in relation to a given country cannot there be considered to be a mere alien. This
would be the case, for example, of nationals of a country who have there been stripped of
their nationality in violation of international law and of individuals whose country of
nationality has been incorporated into or transferred to another national entity whose
nationality is being denied them… The language of article 12, paragraph 4, permits a broader
interpretation, moreover, that might embrace other categories of long-term residents,
particularly stateless persons arbitrarily deprived of the right to acquire the nationality of the
country of such residence’.226 Since Mr. Stewart’s failure to acquire Canadian nationality was
attributed to his own inaction, the HRC found that he was not protected by Article 12(4).
In Madafferi v. Australia the Committee summarized its jurisprudence thus:227
‘… a person who enters a State under the State’s immigration laws, and subject to
the conditions of those laws, cannot normally regard that State as his ‘own country’,
when he has not acquired its nationality and continues to retain the nationality of his
country of origin. An exception might only arise in limited circumstances, such as
where unreasonable impediments are placed on the acquisition of nationality’.
Beyond nationals, Article 12(4) provides protection from expulsion only in particular
circumstances in which the conduct of the State of residence is such that justifies special
protection for the individual.228 Accordingly, under ICCPR jurisprudence, attachment to the
538/1993 UN doc. CCPR/C/58/D/538/1993 (1996), For a discussion of the prohibition on expulsion of
nationals see A/CN.4/581. There are limitations on expulsion of additional categories of persons, such as
stateless persons and refugees. These categories are discussed only briefly, where the circumstances of
settlement under illegal regime are particularly significant.
225 Stewart v. Canada (1996), supra note 224,12.3
226 Stewart v. Canada (1996), supra note 224, 12.4. see also cf Francesco and Anna Madafferi and their children v.
Australia, views of 26 July 2004, CCPR/C/81/D/1011/2001. This jurisprudence was incorporated in the
HRC’s General Comment 27, Freedom of movement (Art.12), UN Doc CCPR/C/21/Rev.1/Add.9 (1999),
para. 20. In Simalae Toala et al. v. New Zealand, views of 2 Nov 2000 CCPR/C/70/D/675/1995 the Committee
went even further in restricting recourse to Art. 12(4), this time on factual grounds, by suggesting that nationals
who have no effective links with the state of nationality cannot claim the right under Art. 12(4) with respect to
that State. para. 11.4.
227 Madafferi v. Australia (2004) supra note 226, para. 9.6. It can be argued that the Committee limited the scope
of Art. 12(4) further than member States had expected it to. In 1981, Canada claimed that the right under Art.
12(4) was available to nationals or permanent residents. Communication 68/1980 A.S. v. Canada, decision on
admissibility 31 July 1980, para. 5.1. But in Canepa v. Canada, Communication No. 558/1993, U.N. Doc.
CCPR/C/59/D/558/1993 (1997) Canada claimed that a person cannot acquire a right under Art. 12(4) by
virtue only of long-term residence. Canepa, para. 9.2. Madafferi v. Australia (2004) supra note 226, followed
Stewart v. Canada (1996), supra note 224.
228 Cf. Giorgio Gaja ‘Expulsion of Aliens: Some Old and New Issues in International Law’ Cursos
Euromediterráneos Bancaja de Derecho Internacional, vol. 3 (1999) 283, 292-293 quoted in A.CN.4/581 para.
territory through long-term presence does not suffice to protect a person from expulsion,
What is required is a formal link to the State of residence such as nationality, or special
circumstances that justify substitution of that formal link, generally linked to victimization of
the person in formalizing the relationship with the State of residence or in maintaining the
nationality of another State.229 Persons holding an effective nationality of another State who
have not been unfairly denied the possibility of naturalization in the State of residence, are
not protected by Article 12(4). Their long-term presence may be relevant in the context of
other rights, but their status as residents grants them no protection that is qualitatively
distinct from that of other aliens.
Thus, settlers who hold the nationality of another State and enjoy the protection attached to
that nationality, may not benefit from the protection of Article 12(4).230 This is the situation
of Turkish settlers in the TRNC and their descendants, all of whom generally retain Turkish
nationality,231 Indonesians who have remained in East Timor, and Soviet-era settlers in the
Baltic States who hold another nationality. They are all excluded from the ambit of
protection under Article 12(4). An interesting question concerns stateless settlers. This was
an acute problem with respect to settlers in the Baltic States who had become stateless as a
result of the Soviet Union’s break up. This could also have been the problem in Zimbabwe,
but the sweeping validation of Rhodesian citizenship avoided it. The HRC General
Comment on Article 12(4) cites situations of State succession as instances when it is
applicable. The dissolution of the Soviet Union generated statelessness because of the lack of
coordination of the domestic legislation between Russia, the various newly-independent
States and the Baltic States. But if the interpretation of 12(4) assumed that protection is
contingent upon lack of good faith (or even illegality) on the part of the successor State,232
what happens when the statelessness is the result of absence of coordination but not of
fault? If statelessness is sufficient for triggering the application of Article 12(4) even when it
results from acts in good faith, then stateless Soviet-era settlers may benefit from Article
12(4). On the other hand, if protection is contingent upon fault on the part of the State of
residence, then inadvertently-stateless persons are not protected, just as foreign nationals are
not protected.
The situation is different with respect to Turkish settlers in the TRNC under Turkish law,
persons who obtain foreign nationality (TRNC nationality being recognized as such under
Turkish law) lose their Turkish nationality unless they request and obtain permission to hold
dual nationality. Accordingly, there may be among the settlers some who have lost their
Turkish nationality. Generally, however, a State may not withdraw nationality from a person
in a manner which renders him or her statelessness. If Turkey withdrew its nationality from
persons who acquired purported TRNC nationality, then from an international legal
44. ICCPR Art. 13 places limits on expulsion but does not grant immunity to any specific category o
229 Stewart v. Canada (1996), supra note 224.
230 In other words, a person can only have one ‘own’s country’. It is not a matter of comparative strength of
links but of one attachment excluding another.
231 Under Cypriot law, Pre-1974 Cypriot nationals and their descendants are eligible for citizenship. The
Republic of Cyprus Citizenship Law, No. 43 of 1967, Art. 4. This includes children of mixed marriages between
settlers and local Turkish Cypriots who are nationals of the Republic of Cyprus, although the Republic does not
routinely grant it to them. US Human Rights Country Practice 2006 Report on Cyprus; UK House of
Commons Foreign Affairs Committee ‘Visit to Turkey and Cyprus’ Fifth Report of Session 2006–07 Doc. No.
HC 473 (9 May 2007), para. 113.
232 Leading to nationality being ‘denied’, in the words of General Comment 27 on Art. 12(40, para. 20.
perspective it unlawfully created a situation of statelessness.233 Accordingly it is obligated to
reconfer its nationality on the individual in question. Nonetheless, until it does so, Article
12(4) may well benefit the settlers and prevent their expulsion from the UCR.
Extensive protection for long-term residents exists under EU law, applicable to the Baltic
States and to the future UCR. Directive 2003/109234 stipulates the rights of long-term lawful
residents in Member States. Those include protection from expulsion with one exception,
namely when there is an actual and sufficiently serious threat to public policy or public
security. The Directive forms part of a process of assimilating permanent residents (nationals
of third countries) to nationals of member States.235 The Council of Europe’s Committee of
Ministers’ Recommendation (2000)15 also calls for assimilation of long-term residents to
nationals by severely limiting the possibility of their expulsion.236
To conclude, for settlers under an illegal regime to benefit from the restrictions on expulsion
by virtue of their formal status, they must be recognizes either as nationals (or at least as
having been unjustly denied that status) for the purpose of ICCPR Article 12(4) or ECHR
Protocol 4 Article 3(1), or as lawful long-term residents of the post-transition regime (for the
purpose of Directive 2003/109). Baltic States and East Timorese residence and TRNC
nationality were granted by illegal regimes. The validity of such grants can be examined
against two bodies of law: the law of occupation where applicable, and the law of nonrecognition.
The question is two-fold. In addition to the question status granted by the
regime is valid under each of these bodies of law, if the answer is positive then a second
question is whether this validity survives the transition to the post-transition regime.
3.2 Status granted to settlers, considered under the law of occupation
The Baltic States, Namibia,237 East Timor and the TRNC can all be regarded as cases of
occupation. The Soviet takeover of the Baltic States was peaceful in the sense that there were
no armed clashes. However, it was the threat of the use of force by the military and its
presence that achieved the takeover, which resulted in the territory of the Baltic States being
under the authority of a hostile, namely Soviet, military force. During Soviet rule, there were
only isolated references by States and international organizations to the Baltic States as
occupied territories.238 Finally, and perhaps most pertinent for present purposes, the Baltic
233 Under its own law it did not, since Turkish law recognizes TRNC nationality.
234 EU Directive 2003/109 of 25 November 2003, in effect from 23 January 2006, not applicable to the UK,
Ireland and Denmark. At the time of writing, judgments for failure to interpose have already been given against
Luxembourg (Case C-34/07), Spain (Case C- 59/07) and Portugal (Case C-5/07).
235 Preambular para. 4.
236 The Council of Europe’s Parliamentary Assembly in Rec 1504(2001) called on the Committee of Ministers
to recommend further than long-term residents be assimilated to nationals. The Committee of Ministers replied
on 6 December 2002 that Rec (2000)15 addressed many of the concerns of the Assembly and that the
Committee was thus not minded to devise new standards. Üner v. The Netherlands [GC] Application no.
46410/99 Judgement of 18 October 2006, para. 37.
237 Adam Roberts ‘What is Military Occupation?’ 55 British Yearbook of International Law 249 (1985). Security
Council Resolutions 264 of 20 March, 1969 301 of October 20, 1971, 366 of 17 December 17, 1974, 385 of
30 January, 1976, 601 of 30 October, 1987, General Assembly Resolutions 2871(XXVI) of 20 Dec 1971, 41/39
of 29 November, 1986, 43/26 of 17 November, 1988; Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) ICJ Reps. [1971] 16
(hereafter “Namibia Advisory Opinion”) [119].
238 Report of the Select Committee of the US House of Representatives to Investigate the Incorporation of
Lithuania, Latvia, and Estonia into the Soviet Union (the Kersten Committee) in 1954; US Department of
Defence Authorization Act, 1983; E.g. Proclamation 5068 - Baltic Freedom Day, June 13, 1983, available at
http://www.reagan.utexas.edu/archives/speeches/1983/61383d.htm (25 March 2008); Resolution 189 (1960)
States consider themselves to have been liberated from occupation.239 East Timor and the
TRNC240 are clear cases of occupation, where a hostile army gained effective control over the
territory as a consequence of armed conflict. East Timor’s Legislation and jurisprudence
reflect the State’s perception of having emerged from occupation.241
Article 49 of GC IV provides:
The Occupying Power shall not deport or transfer parts of its own civilian population
into the territory it occupies.
According to the ICRC study on customary international law, the prohibition on transferring
parts of the occupying power’s own civilian population into the occupied territory is
customary law.242 Articles 85(4)(a) and 85 of Additional Protocol I and Article 8(2)(b)(viii) of
the ICC statute designate the transfer by the Occupying Power of parts of its own civilian
population into the territory it occupies as a war crime.243 Yet the precise scope of
prohibition is debated. In particular, controversy revolves on whether the prohibition covers
only forcible transfers, or also permissive transfers and facilitation of relocation of settlers in
occupied territories. The common interpretation of Article 49 is that it prohibits any transfer
of settlers to occupied territories, whether forcibly or by actively organizing or encouraging
it.244 A different view, advanced primarily by Israel, is that the prohibition covers only
forcible transfer.
of the Parliamentary Assembly of the Council of Europe, on the situation in the Baltic States; Document I-
239 E.g. 2002 statement of the Estonian parliament on crimes committed by the occupation regimes in Estonia
during the Second World War Estonian Review, June 17-23, 2002, http://www.vm.ee/eng/kat_137/2484.html
(2 June 2005); Estonia’s 2003 Persons Repressed by Occupying Powers Act; Latvia’s Declaration on the
Renewal of Independence, May 4, 1990; Lithuania’s Law on Rehabilitation of Persons Repressed for Resistance
to the Occupying Regime 2 May 1990; Lithuania’s Resolution of the Supreme Council of the Republic of
Lithuania regarding the Process of Enforcement and Application of the Law of the Republic of Lithuania on
the Procedures and Conditions of the Restoration of the Ownership Rights of Existing Real Property 16 July
240 E.g. GA Resolutions 33/15 of 9 November 1978 preambular para. 6; 34/30 of 20 November 1979
preambular para. 9; 37/253 of 13 May 1983 preambular para. 8; European Parliament resolution on the 1999
regular report from the Commission on Turkey's progress towards accession, adopted on 15 November, 1999,
Bulletin EU 11-2000; Loizidou v. Turkey (Preliminary Objections) (1995) A310, paras 62, 63, Loizidou v. Turkey
(Merits) (1996) 23 EHRR 513 para. 52; Cyprus v. Turkey (The Forth Interstate Case), (2002) 35 EHRR 30 para. 76,
and partly dissenting opinion of Judge Palm, joined by Judges Jungwiert, Levits, Pantîru, Kovler and Marcus-
Helmons, and partly dissenting opinion of Judge Marcus-Helmons
241 preamble to the East Timorese Constitution; Preamble of Law on the Juridical regime Real Estate Part 1 –
Ownership over Real Estate, No. 1//2003; Court of Appeal Judgment, Criminal Offence No. 3/2002 in the
name of the appellant Armando dos Santos v. the Prosecutor General, Dili, 15 July 2003. The Court-authorized
English translation is available at: http://www.jsmp.minihub.org/judgmentspdf/courtofappeal/Ct_of_Appdos_
242 Jean Marie Henckaerts and Louise Doswald-Beck Customary International Humanitarian Law (2005, vol I:
Rules), Rule 130, volume 1 p. 462-463, and see also the sources cited therein.
243 None of the occupying powers discussed here are or have been parties to Additional Protocol I. The ICC
provisions are not directly applicable to any of the cases examined here, because implantation occurred before
2002, possibly with the exception of the TRNC.
244 David Kretzmer ‘The Advisory Opinion: The Light Treatment of International Humanitarian Law’ 99 AJIL
(2005) 88, 91. There are other opinions, to the effect that any measure of transfer is prohibited. Commission on
Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights
and Population Transfer : Final Report of the Special Rapporteur, Mr. Al-Khasawneh
E/CN.4/Sub.2/1997/23 p. 14-15 para. 46. This report seems to suggest that implantation of settlers is a
violation of ius cogens, para. 46. Wall advisory opinion, para. 120.
The mobilization of Soviet military personnel to the Baltic States and of Indonesians
transmigrants to East Timor was undoubtedly forcible. The voluntary relocation of other
Indonesians to East Timor and of mainland Turks to the TRNC was organized and
encouraged by Turkey and Indonesia, respectively.245 The responsibility of all three
occupying powers is thus engaged.
The remedy, in case of breach of the prohibition, is reversion to the status quo ante,246 i.e. the
occupying power should remove its nationals from the occupied territory and repatriate
them. Even if the settler population has in the meantime been deprived of the nationality of
the occupying power through measures contrary to international law, the occupying power
can be required to restore its nationality and take that population in, although until it does
so, technically that population might not be repatriated.
At any rate, since the occupying power cannot grant what it does not have, the settler
population could not acquire status in the territory during the period of occupation.
Consequently, the question of survival of status through transition to the post-transition
regime does not arise.247 The consequences of this rather arcane perception of individuals as
pawns which States can move around, may nonetheless be mitigated by other bodies of law,
such as human rights law, as discussed below.
3.3 Status granted to settlers, considered under the law of non-recognition
3.3.1 The legal framework
The International Law Commission’s Draft Articles on Responsibility of States for
Internationally Wrongful Acts codify the customary rule of international law that States are
under an obligation not to recognize as lawful a situation created by a serious breach of an
obligation arising under a peremptory norm of general international law, nor render aid or
assistance in maintaining that situation.248 This is a specific expression of the principle ex
injuria ius non oritur. The violations at the root of the illegal territorial regimes described here,
namely the unlawful use of force and the denial of the right to self-determination, are both
regarded as serious breaches of peremptory norms. The applicability of the obligation of
non-recognition to illegal territorial regimes was confirmed in the Namibia Advisory Opinion
in 1971, when the International Court of Justice was requested to advise the General
Assembly on the legal consequences of South Africa’s continuing illegal presence in
Namibia.249 In 2004 the Court reiterated its position on the obligation of non-recognition of
245 E.g. Adi Schwartz “The Settlers of Cyprus failed to Settle in the Hearts” Ha’aretz (Israeli Daily Newspaper)
25 May 2005 B6 (in Hebrew, on file with author).
246 Al-Khasawneh, supra note 244, paras 60-63.
247 This statement might require some qualification with respect to the TRNC, if the local government is not
regarded as subordinate to Turkey. This proposition falls within the following analysis, under the law applicable
to illegal regimes.
248 Official Records of the General Assembly, Fifty-sixth Session, International Law Commission Draft Articles on
State Responsibility for Internationally Wrongful Acts Report of the International Law Commission on the work of its Fifty-third
session (2001), A/56/10, Draft Arts 40, 41 and their commentaries. See also A. Orakhelashvili, Peremptory Norms
in International Law 189-203 (2006). Milano argues that the obligation covers all unlawful territorial situations,
including ones generated not through a violation of a peremptory norm. E. Milano, Unlawful Territorial Situations
in International Law 141 (2006). For pre-ILC Draft Arts. law and practice see J. Dugard, supra note 2.
249 Namibia Advisory Opinion, supra note 237, paras 123-124. The violation of international law that prompted
the Advisory Opinion was not of a peremptory norm, but of the obligation in Art. 25 of the UN Charter at 54.
However, the revocation of the South African Mandate over Namibia was brought about following the
violation of norms regarded as peremptory, primarily the right to self-determination.
an unlawful act in the Advisory Opinion on Consequences of the Construction of a Wall in
the Occupied Palestinian Territories.250
Under the principle ex injuria ius non oritur, reversion to the legal status quo ante should take
place to put facts in line with the law. This governs the conduct of the illegal regime and of
third States. Opposite the principle ex injuria ius non oritur operates the principle ex factis ius
oritur. It mandates that acts of the illegal regime may have legal consequences despite the
illegality and status of the regime that performed them.251
The ICJ provided some guidance on the balance between the two principles in the Namibia
Advisory Opinion. Paragraph 125 states:
In general, the non-recognition of South Africa's administration of the Territory
should not result in depriving the people of Namibia of any advantages derived from
international co-operation. In particular, while official acts performed by the
Government of South Africa on behalf of or concerning Namibia after the
termination of the Mandate are illegal and invalid, this invalidity cannot be extended
to those acts, such as, for instance, the registration of births, deaths and marriages,
the effects of which can be ignored only to the detriment of the inhabitants of the
In other words, the general invalidity of domestic acts carried out under an illegal regime is
qualified where such invalidity would act to the detriment of the inhabitants of the territory.
This is the Namibia exception. A general question that arises with regard to the Namibia
exception is whether the ‘inhabitants’ protected by the Namibia exception can also include
settlers. In Namibia was no significant settler population to speak of, and the reference in the
Advisory Opinion to the ‘inhabitants of the Territory’ was clearly to the indigenous
population. The following sections analyse the Namibia exception can justify recognition of
nationality or permanent residence purportedly granted to settlers by the illegal regime; and
whether such exceptional recognition survives the transition from the illegal regime to the
post-transition regime.
3.3.2 Recognition of status under the Namibia exception
During the period of the illegal regime’s existence, the question whether to give legal effect
to acts of the illegal regime arises primarily before foreign authorities, since within the
territory under dispute, the illegal regime’s authority is usually unchallenged.252 The Namibia
exception has received various interpretations, which in many instances overlap. Three are
particular noteworthy.253
(1) In the Namibia advisory opinion itself, Judge de Castro suggested254 that a distinction
must be made between the private and the public sector. Thus, the acts and rights of private
250 ICJ 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep 136. It is not entirely clear whether in the opinion the Court was addressing the
territorial element of the regime or only other elements of it. One of the arguments against the construction of
a wall was that it was creating an illegal territorial situation, i.e. the forcible annexation of territories. However,
there was no dispute over the lawfulness of Israel’s control of the West Bank as such.
251 J. Crawford, The Creation of State in International Law, (2nd ed.) 166-67 (2006); R.Y. Jennings, Nullity and
Effectiveness in International Law, in: Cambridge Essays in International Law (Essays in Honour of Lord McNair) 75
252 For a unique exception see the S v Banda and Others Bophuthatswana General Division 1989(4) SA 519, where the
legality of the South African administration of Namibia was challenged and considered in a South African
253 For a discussion of the three interpretations see Ronen (2005), supra note 1, 78-82.
254 Namibia Advisory Opinion, supra note 237, 218-219.
persons (e.g. entries in the civil registers and in the Land Registry, marriages, judgments of
civil courts) should be regarded as valid even if carried out under the law (public sphere act)
of the illegal regime. Granting of civic status, whether it is nationality or residence, is clearly a
public sphere activity. According to this interpretation, it merits no validity at any time. It
does not matter whether the individuals involved belong to the indigenous population or are
(2) Judge Onyeama suggested in the Namibia advisory opinion that the prohibition on giving
legal effect to acts of the illegal regime concerns only acts that aim at entrenching the illegal
regime or are capable of doing so.255 Ordinary day-to-day acts would fall within the
exception. The potential effect of granting status on facilitating entrenchment of the illegal
regime is apparent. Indeed, entrenchment of the illegal regime is often the main motive for
the implantation of settlers. Under Judge Onyeama’s interpretation, nationality purported
granted under the illegal regime should not be given validity. With respect to residence the
situation is less clear-cut. On the one hand, residence is an easily reversible status, so that the
danger that its validation would legitimize the illegal regime is small. On the other hand, if
the purpose of the illegal regime is to change the demographic character of the territory, it
makes little difference how limited the status of the settlers is, if their presence in the
territory is in any way regarded as legitimate.
(3) According to a third interpretation, paragraph 125 should be read literally. Since nonrecognition
is not qualified, then a priori, no act of any kind should be recognized, whether or
not it entrenches the illegal regime.256 The exception calls for a case-by-case examination
whether under the specific circumstance, non-recognition of nationality or residence would
be detrimental to the inhabitants of the territory. This allows greater flexibility, which may
also include protection of settlers.
At the same time, since this interpretation gives weight to considerations of justice and
fairness, it is presumably available only to persons acting in good faith.257 This might limit
protection to settlers who have come into the territory in good faith, for example under
compulsion or in ignorance of the legal situation. There may also be circumstances where
refusal to recognize a settler’s status would be detrimental to a local inhabitant of the
territory. For example, choice of law rules may refer to nationality and residence to
determine the validity of marital status. Recognition of settlers’ status in the territory is also
important to ensure stability and reliability of commercial interaction. In view of the third
interpretation’s unlimited scope, it is likely to encompass protection of individuals.258
The Namibia exception justifies giving effect to an act only when the detriment to the
individual by refusing such effect would be disproportionate to the gain achieved by that
refusal. This gain is the prevention of the consolidation of the illegal regime. The third
interpretation is therefore very similar to the second one, except that the second
interpretation does not appear to allow any balancing of interests. In short, the question is
whether granting of nationality or residence is capable of entrenching the regime, and,
uniquely under the third interpretation, whether the detriment caused to an individual by not
recognizing his or her status is justified by the need to prevent this entrenchment.
The claim that nationality granted by the illegal regime should be recognized on the basis of
the Namibia exception was made in Veysi Dag, an asylum request made by a Turkish-Cypriot
255 Ronen (2005), supra note 1, 79.
256 Namibia Advisory Opinion, supra note 237, 99-100.
257 cf. Lamar v. Micou, 112 US 452 (1884) at 473.
258 e.g. in the UK Emin v. Yeldag ([2002] 1 FLR 956.
in the UK. Veysi Dag claimed to be a national of the TRNC, from which it was seeking
asylum. For this purpose, the Immigration Appeal Tribunal had to determine whether it
could recognize a TRNC nationality. The claim was rejected on two grounds. First, in
examining the relevance of the Namibia exception, the Immigration Appeal Tribunal noted
that unlike South Africa, which was recognized as a sovereign State, albeit over different
territory to the one it claimed, the TRNC is not recognized at all. The Court assumed that
the Namibia exception would have been formulated differently had the ICJ had in mind a
situation equivalent to that of the TRNC. Second, the Immigration Appeal Tribunal
considered that ‘nobody has identified any disadvantage which would accrue to the appellant
by reason of the international non-recognition of the “Turkish Republic of Northern
Cyprus’’’.259 Accordingly the Namibia exception did not apply on the facts. This statement
seems to be a mistaken framing of the question. The non-recognition of the TRNC is not
under debate. What the Namibia exception may require is that the Immigration Appeal
Tribunal consider the potential detriment as a result of the invalidity of the act.
Even when the effect of a specific act over a specific individual is examined, non-recognition
is not always detrimental. In Veysi Dag the Immigration Appeal Tribunal pointed out that in
the circumstances, even if TRNC nationality were recognized, the appellant would not have
succeeded any more in his asylum request. In other words, the refusal to give validity to
TRNC nationality really would not have been detrimental to him.260
3.3.3 Survival of the Namibia exception through transition to a lawful regime
The Namibia exception was formulated with respect to the situation during the existence of
the illegal regime. It ensures that individuals should not be held hostage to enforcement
measures aimed at releasing them from the grasp of that regime. It does not address the
post-transition stage. Once the illegal regime terminates, the post-transition regime may
choose whether to give effect to acts of the illegal regime. In general, the post-transition
regime is free to choose its legal system. It can take any one of a large number of possible
stances towards the norms of the non-recognized regime, from total rejection to total
adoption. As a matter of law, the norms applied during the period of non-recognition hold
no advantage over other norms, although as a matter of practice they are the natural
candidates for adoption. This is not to say that there are no legal constraints on the decision
as to future law; those are found primarily in the law on State succession.261 This calls for an
examination whether the law of State succession with respect to issues of nationality or
residence is applicable to transition from illegal regime.
The ILC Draft Articles on Nationality of Natural Persons in relation to the Succession of
States262 regulate nationality of individuals in situations of State succession. The Draft
Articles are limited to State succession occurring in conformity with international law.263
They define a ‘Succession of States’ as ‘the replacement of one State by another in the
responsibility for the international relations of territory’.264 The commentary provides that
259 UK Immigration Appeal Tribunal (determination notified 14 March 2001) Veysi Dag v. The Secretary of State for
the Home Department, CG [2001] 00002 Appeal No: HX/70783/98 *(01 TH 0075)* para. 23.
260 UK Immigration Appeal Tribunal (determination notified 14 March 2001) Veysi Dag v. The Secretary of State for
the Home Department, CG [2001] 00002 Appeal No: HX/70783/98 *(01 TH 0075)* para. 33.
261 There are other constraints, mostly based on international human rights law. However, they are not statusbased
and are considered in Part 4.
262 Yearbook of the International Law Commission, vol. II, Part Two (1999) (hereafter ‘ILC Draft Articles’).
263 ILC Draft Art. 3.
264 ILC Draft Art. 2(a).
they do not apply to situations of illegal annexation of territory.265 Equally, however, they
cannot apply to situations of emergence from illegal annexation (or other territorial
situations in violation of international law). An illegal regime does not generally have
responsibility for the international relations of a territory266, and accordingly transition from
such a regime to a lawful one is not a process of State succession as defined by the ILC
Draft Articles. Thus, even to the extent that the ILC Draft Article reflect customary or
developing law, they do not address transition from illegal regimes at all. In conclusion, there
does not appear to be any law on the survival exceptionally-recognized status under the
Namibia exception. The matter is therefore one of policy and practice.
3.4 Practice
The previous analysis indicates that neither the law of occupation nor the law of nonrecognition
require the post-transition regime to recognize status granted to individuals by
the illegal regime. Practice on the matter is not uniform.267 In Zimbabwe and South Africa,
the post-transition regimes opted to give validity to acts of the illegal regime, including the
granting of nationality and residence; as described, this resulted from political pressure rather
than from a sense of legal obligation. In contrast, the constitutional foundations of the posttransition
regimes in the Baltic States and East Timor have incorporated the premise that
these territories had previously been subject to an illegal territorial regime,268 and that
reversion from this situation justified and even mandated a reversion to the legal status quo
ante, at least in some areas of law. In the case of the Baltic States, for example, emphasis lay
on the continuity of the three States with their pre-1940 existence. In East Timor, emphasis
lay in the illegitimacy of the Indonesian administration. As far as TRNC is concerned, the
existing blueprint for resolution of the conflict avoids a clear statement on the status of the
entity but addresses practical issues directly. In all three cases, the post-transition regimes269
opted for reversion in the areas of nationality and immigration, thereby invalidating
nationality and residence granted by the illegal regime.
The significance of continuity of status in providing stability and security did not escape
policy makers. But policy makes did not necessarily aim to provide the latter. In Estonia, for
example, since settlers were excluded from nationality, the debate turned in 1993 to the right
of aliens to remain, focusing on whether a Soviet-era residency ‘registration’ could be
automatically exchanged for a new Estonian residency permit. The draft Aliens Law rejected
this possibility, instead requiring settlers apply for new permits. Non-citizens, even those
born in Estonia, were to be given a choice: to apply for non-permanent residency permits
without the certainty that the permit would be issued, or to leave.270 One of the drafters
expressed it most frankly: ‘By means of the present law we have to create a situation where
the colonists feel the earth shaking under their feet.’ Indeed, the goal of the draft law was to
create extreme uncertainty among alien residents about their future status in Estonia. For
265 Commentary to ILC Draft Art. 3 para. 2.
266 It may have human rights obligations based on its own international commitments, that extend to the
inhabitants of the territory under dispute.
267 There have been cases of illegal territorial regimes other than those discussed here, but either they did not
last long enough to raise this kind of problems, or have not yet been resolved. Prominent examples are the
Iraqi annexation of Kuwait in 1990, Israel’s annexation of the Golan Heights and East Jerusalem, Morocco’s
annexation of Western Sahara.
268 Or, in the case of the Turkish Republic of Northern Cyprus (TRNC), the accommodation of the view that
the previous regime was unlawful.
269 The Baltic States, East Timor and the UCR under the Annan Plan.
270 Kask (1994), supra note 108, 385-386.
this reason, the draft law rejected the exchange of the. This policy choice was greatly
criticized. Indeed, although the draft was approved in parliament, it was vetoed by Estonia’s
president. Following pressure by European institutions, it was subsequently amended so that
residence granted by the Soviet authorities was automatically given validity.271 Shaking the
ground underneath Soviet-era settlers was regarded as illegitimate if not outright illegal.
Another example of the refusal of the post-transition regimes to give validity even to
residential status under the illegal regime concerns the qualifying date of residence for the
purpose of naturalization. In both Estonia and Latvia, the period of lawful residence is
calculated (at the earliest) from the day on which each of the States declared its reversion to
independence. The period of residence under Soviet rule is not taken into account. In other
words, permanent residence based on Soviet law, while tolerated, cannot qualify for ensuing
rights. The Annan Plan is different. It allows taking into account up to five years of residence
in the TRNC prior to transition into the UCR towards fulfilling the requisites for
naturalization in the UCR. A separate question is whether the same period would be counted
towards the fulfilment of a lawful residence period for the purpose of Directive 2003/109.
Despite the different avenues, in most of the cases examined here, the settler population was
eventually given the opportunity to remain in the territory, either unreservedly (as in
Zimbabwe and South Africa), or with qualifications (in the Baltic States only to civilian
population, in the TRNC on a numerical basis). This similarity can be dismissed as unrelated
instances of political agreements. However, before adopting this conclusion, the next Part
examines another set of legal limitations that informs the practice of the post-transition
4.1 Introduction
New factual situations come to exist which may have legal consequences because of their
effectiveness. This Part examines how the presence of settlers may generate legal
consequences, embodied in on international human rights law, that limit the post-transition
regime’s discretion in expelling them, despite the original illegality of the transfer of settlers
to the territory.
Various international human rights may be implicated in measures of expulsion. These
include the right to a hearing, the prohibition on racial and other discrimination, the right to
property,272 the right to family and private life, the prohibition against inhuman treatment
and more. The discussion here focuses on certain norms which are particularly pertinent to
expulsion of long-term settlers implanted under an illegal regime. It also focuses on two
international instruments: the 1966 International Covenant on Civil and Political Rights
(ICCPR), which is binding on all post-transition regimes examined here,273 and the European
Convention on Human Rights and Fundamental Freedoms (ECHR), which is binding upon
the Baltic States and is expected to be binding upon the UCR.274
271 Kask (1994), supra note 108, 387-388.
272 For example when the freedom of ownership is conditional upon status, as in East Timor, or when
expulsion is carried out in a manner that prevents individuals from benefiting from their property.
273 999 UNTS 171 (ICCPR), in force for Estonia since 21 January 1992, for Latvia since 14 August 1992, for
Lithuania since 20 February 1992, for East Timor since 18 December 2003, Annan Plan, Foundation
Agreement, Annex V, Item 112 in the multilateral treaty list binding upon the UCR.
274 213 UNTS 222, in force for Estonia since 16 April 1996, for Latvia since 27 June 1997, for Lithuania since
20 June 1995, Annan Plan, supra note 75, Foundation Agreement, Annex V, Item 204 in the multilateral treaty
4.2 The Prohibition on Discrimination
International law prohibits discrimination, which means unreasonable inequality in treatment
of individuals or groups, which has the purpose or effect of nullifying or impairing their
exercise on an equal footing of human rights and fundamental freedoms.275 A distinction
among persons is not discriminatory if the criteria used are reasonable and objective and
their effect is proportionate to the aim pursued;276 at the same time, some distinctions are
regarded as absolutely prohibited, namely those based on race, colour, descent, national or
ethnic origin.277 The prohibition on discrimination is recognized as a general principle of
human rights,278 and is entrenched in ICCPR Article 2 and ECHR Article 14.279 Under the
ICCPR, discrimination is a free-standing human rights violation. Under ECHR, the violation
of the prohibition on discrimination in Article 14 is dependent on the violation of another
Convention right.280
The distinction between nationals and aliens is not regarded as prima facie discriminatory.281
A State may distinguish between its nationals and aliens with respect to the power to expel
individuals, as a corollary of its duty to receive its nationals.282 Accordingly, the expulsion of
a person is not discriminatory only because a national cannot be expelled under similar
circumstances. Put differently, if a State determines who its nationals are, and then proceeds
to expel other persons, the latter measure it not, subject to compliance with other
requirements such as the right to review, discriminatory. This, in effect, is the scenario
envisaged with respect to the UCR. In the Baltic States the settlers were, for the most part,
granted residence. They are still susceptible to expulsion while nationals are not. Thus, where
the right to remain hinges on eligibility for nationality, the question whether the posttransition
regime acted in a discriminatory manner shifts from the issue of expulsion to the
determination of eligibility for nationality. Potential expellees from the UCR appear to be all
Turkish. Similarly, the regulation of nationality in the Baltic States resulted in persons of
non-Baltic ethnicity being almost entirely precluded from original nationality. Does this
mean that the post-transition regimes’ policies on nationality are discriminatory? In the Baltic
States this matter was the source of great controversy and debate. It was argued that
excluding overwhelmingly Russophone Soviet-era settlers from nationality (even without
expulsion) was discriminatory because it was based on ethnic and national origin. A similar
argument might be voiced with respect to the East Timorese nationality policy, which
effectively excludes Indonesians from nationality.
It is generally accepted that States may lay out conditions for the acquisition of nationality,
provided that these do not discriminate against any particular nationality or ethnicity.283 The
policies of the post-transition regime in the Baltic States, East Timor and under the Annan
list binding upon the UCR. This right is also guaranteed by the Constitution of Estonia, art. 33; Constitution of
Latvia, art. 96; Constitution of Lithuania, art. 24, Constitution of East Timor, art. 37, Annan Plan, Foundation
Agreement, Annex V, Item 204 in the multilateral treaty list binding upon the UCR and Draft Constitution art.
11(1), enshrining the ECHR in the Constitution, and UCR Constitution Attachment 5, Arts. 19, 20.
275 CERD 1(1).
276 HRC General Comment No. 18: Non-discrimination (1989) para. 13.
277 CERD Art. 2(1).
278 HRC general comment 18, para. 1. The prohibition on racial discrimination is almost unanimously
recognized as ius cogens.
279 See also UDHR Art. 7, ACHR Art. 1(1).
280 e.g. Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, para. 2
281 CERD Art. 1(2).
282 A/CN.4/565 para. 280.
283 CERD Art. 1(3).
Plan did not single out the Russophones, Indonesians or Turks. They were drafted neutrally
in terms of nationality or ethnicity.
The reception of the restorationalist approach meant that the Baltic States were merely
reverting to their pre-1940 independent status, and in this context were reinstating their pre-
1940 legislation on nationality. To the extent that nationality then excludes the settlers that
are predominantly Russophones, this is a consequence of the immigration patterns under the
illegal regime. Moreover, because the legislation is not ethnically-defined, there is not an
absolute correlation between ethnicity and eligibility for nationality. Defenders of the Baltic
States’ policies point out that the reversion to pre-1940 legislation did not reserve nationality
only to ethnic Balts. All pre-1940 nationals and in some cases residents of the Baltic States
were entitled to reacquire their nationality, even if they were not ethnic Balts.284 Conversely,
where reversion to the pre-1940 situation was qualified, this affected persons of Baltic
descent, too. For example, some former nationals of Lithuanian descent were prevented, at
the early stages, from reacquiring Lithuanian nationality.285 The exclusion of Russophones
from nationality was therefore claimed to be only an incidental consequence of legitimate
legislation rather than an ethnically-related measure.
The same can be said with respect to the UCR and its treatment of Turkish settlers. Under
the Annan Plan, post-1963 settlers, primarily mainland Turks but not only, would not be
regarded as nationals. Although this includes many other foreign nationals, of which there
are over 8,000 currently in the TRNC,286 the political debate focuses on the future of Turkish
Unlike the Baltic States and UCR, East Timor did not revert to earlier legislation, but
adopted original nationality legislation. The 2002 Nationality Law grants nationality primarily
to second-generation East Timorese-born individuals. This largely limits nationality to ethnic
East Timorese, but there is nothing in the legislation preventing others from becoming East
Timorese nationals on the same grounds. Moreover, even first-generation East Timoreseborn
individuals may acquire nationality by declaration, thereby allowing Indonesians and
other second-generation immigrants to become nationals.
Although legally there was no singling out of the settler population, there is no doubt that
the political motivation for the legislation was ethnically-oriented.287 The question is whether
neutrally-drafted criteria in granting nationality that in practice result in ethnic or national
divisions are discriminatory. If the neutrally-drafted distinctions are merely a cover-up for
ethnic or national discrimination, they are prohibited. But it may be that the distinctions
reflect legitimate concerns. Then, the national or ethnic divisions that result may be
legitimate, as long as the distinction is necessary and proportionate to the aim pursued. The
denial or nationality and residence is linked to expulsion, particularly when the purpose of
such denial is to facilitate the removal of the settler population. Accordingly, the
justifications for the legislation adopted and its effect on the right of settlers to acquire
nationality or residence is examined below, in the context of the grounds for expulsion.
284 Estonia: Resolution of the Supreme Council of the Republic of Estonia ‘On Implementation of Citizenship
Act’; Latvia: 1994 Citizenship Law, Art. 2(1); Lithuania: 1991 Law on Citizenship Art. 1(3).
285 if they were not resident in Lithuania or had acquired other nationality . 1991 Law on Citizenship Art. 1(3).
286 The Final Results of TRNC General Population and Housing Unit Census, Additional Tables,
http://nufussayimi.devplan.org/Kesin-sonuc-index_en.html (last accessed 30 Sept 2008).
287 Pettai (2007), supra note 86; Kask (1994), supra note 108, 379
Similarly to the provision on original nationality, the legislation on naturalization in all three
cases is also formally ethnically and nationally-neutral.288 In practice, there are provisions that
affect only settlers under the illegal regime, such as the inability to rely on residence under
the illegal regime in calculating the length of residence for the purpose of naturalization (in
East Timor, Estonia, Latvia, and partly under the Annan Plan). Prima facie, these provisions
are not discriminatory because they do not impair the settlers’ enjoyment on equal footing of
any human right. Their effect is that the settlers under the illegal regime are not better placed
than other foreigners. At the same time it may be queried whether disregard of the period of
residence in the territory, which operates only against a specific population, does not
constitute indirect discrimination. In particular, the disregard of a certain period of residence
but not others may be disproportionate to the aim pursued. Again, the examination of the
aim pursued follows in the context of the grounds for expulsion.
A different type of provisions is those that give preferential treatment to settlers, such as the
residence (and eventual naturalization) arrangement of 45,000 persons entitled to remain in
the Turkish Constituent State of the UCR. Preferential treatment is permitted under
international law within certain limits.289 Moreover, inclusion on the list was never limited by
any ethnic or national criteria. Nonetheless, if in practice the entire list will contain only
persons of Turkish origin, it may be queried whether the exclusion of other foreigners is
4.3 Protection from severance from social environment – the right to private life
Although formally residential status granted under the illegal regime may be disregarded by
the post-transition regime (as concluded in Part 3), long term residence is a fact which may
carry legal consequences. When the illegal regime lasts over two decades, as has happened in
the cases examined here, there are likely to be many members of the settler community who
consider the territory their home both geographically and socially, having lived there a large
part of their life or even all of it. They may have never been to their State of origin (possibly
their State of nationality but not necessarily). This attachment is protected under
international human rights instruments.
4.3.1 ECHR Article 8
ECHR Article 8 stipulates:
1. Everyone has the right to respect for his private and family life, his home and his
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.
Under ECHR jurisprudence, the totality of social ties between individuals and the
community in which they are living constitute part of the concept of ‘private life’ within the
meaning of Article 8.290 The right to private life protects ‘the right to establish and develop
relationships with other human beings and the outside world’ and ‘can sometimes embrace
288 In the Baltic States there are limitations on holding dual nationality. This does not prevent the acquisition of
nationality by foreign nationals, only requires them to renounce their previous nationality.
289 CERD Art. 1(4).
290 Üner v. Netherlands, supra note 236, para. 59.
aspects of an individual’s social identity’.291 The expulsion of an integrated immigrant
therefore constitutes an interference with his or her right to respect for private life.292 The
criteria for assessing a person’s integration within the State were developed mostly with
respect to expulsion of criminal convicts, but are applicable mutatis mutandis to expulsion on
other grounds, including settlement under an illegal regime. The extent of integration is
measured through the solidity of social, cultural and family ties with the State of residence
and with the State of destination (usually the State of nationality).293 Those depend on the
length of the person’s stay in the country from which he or she is to be expelled; the
nationalities of other persons affected; the person’s family situation; and the seriousness of
the difficulties which family members are likely to encounter in the country of origin of the
expellee. The ECtHR has emphasized that the longer a person has been residing in a
particular State, the stronger his or her ties with that country will be, and the weaker the ties
with the State of nationality. Therefore the Court has regard to the special situation of
foreigners who have spent most, if not all, their childhood in the State of residence, were
brought up there and received their education there. 294
It is probably necessary to examine a person’s integration in a wider perspective than his or
her immediate surroundings. This is significant with respect to diaspora communities which
remain apart from the local community to varying degrees. For example, the settler
community in Indonesia and the settlers in the Baltic States were relatively little-integrated.
They lived in separate enclaves, provided with all the aspects of ethno-communal life
including Russian-language media and government services, cultural resources and
educational institutions.295 Removing an individual from such a community would interfere
with his or her private life if the rest of the community remains in the territory. Theoretically,
at least, if the entire community is required to leave, then paradoxically its members would
generally not be able to claim interference with their individual right to private life. This
narrow interpretation of the right to private life would effectively result (all other things
being equal) in the disappearance of diaspora communities. Accordingly, it is probably
291 Both quotes from Pretty v. The United Kingdom, Application No. 2346/02 ECHR 2002-III para. 61. cf. ACHR
Art. 11(2). According to the jurisprudence of the Inter-American Commission on Human Rights, private life
‘The requirements of Art. 11 encompass a range of factors pertaining to the dignity of the individual, including,
for example, the ability to pursue the development of one’s personality and aspirations, determine one’s identity,
and define one’s personal relationships.’ Report No. 4/01 Case 11.625 María Eugenia Morales de Sierra,
Guatemala, (19 January 2001) para. 46.
292 Üner v. Netherlands, supra note 236, para. 59 uses the term ‘settled’ in the sense of ‘integrated’, which is more
common in Council of Europe documents and ECHR judgments.
293 Üner v. Netherlands, supra note 236, para. 58.
294 In Cyprus v. Turkey Application 8007/77 decided by the European Commission on Human Rights, Judge
Schermers in a separate opinion on rights in residential property in the TRNC wrote: ‘As Article 8 guarantees
the right to respect for his home to everyone, the rights of the new occupant should be taken into account,
even if the occupation was originally established on an invalid title. After a long period of time restoration of
the status quo ante will become a violation of Article 8 with respect to the new occupant. It is difficult to
establish how long this period is to be, because in fact it is a gradual process. …children will be born in the
house who have no other place which they could consider as their home… I cannot accept as the only possible
remedy that Turkey should be obliged to break up the homes of all present occupants in order to allow the
original occupants to return.’ This reasoning is all the more applicable to issues of personal status, where
validation of the settler’s status given his association with the territory does not come at the expense of an
identifiable dispossessed other.
295 Vello Pettai and Klara Hallik ‘Understanding Processes of Ethnic Control: Segmentation, Dependency and
co-optation in Post-communist Estonia’ 8 Nations and Nationalism (2002) 505, 509; Stankevicius (1996), supra
note 117, chapter 6 para. 4 http://www.nato.int/acad/fellow/94-96/stankevi/home.htm (last visit 14 February
appropriate to examine the integration of both individuals and the community in the State
structure. The question may be not only whether the individual would be deprived by his or
her removal, but also whether the community would be deprived by that removal. Thus,
Soviet-era settlers in the Baltic States formed the pillars of the economic, social, professional
and political structure. Their removal from the territory would have impacted significantly
on the community. That, too, is an indication of integration.
The right to private life is not absolute. Permissible grounds for its limitation are considered
below, as they are applicable to other rights examined here.
4.3.2 ICCPR Article 17
Article 17 of the ICCPR protects everyone from ‘arbitrary or unlawful interference with his
privacy, family, home…’. The term ‘privacy’ has been interpreted narrowly, in the sense of
isolation from society and the public, rather than the forging of social ties. It thus differs
from ‘private life’ under the ECHR. The term ‘family’ has originally been interpreted
narrowly so as to cover immediate formal relationships rather than social ties. This changed
following the Winata case, which precluded expulsion where it would lead to either
disruption of family life or to unreasonable severance of the family from its social
Winata v. Australia concerned an alien couple about to be deported from Australia. They had
a 13-year old child, a national of Australia who was thereby entitled to remain in the country.
The majority view was that expulsion of the parents would have compelled the family to
choose whether the child remains alone in the country or accompanies his parents. The
Committee found this to be an ‘interference’ with the family, because ‘substantial changes to
long-settled family life would follow’ whatever choice the parents made.296 Similar
circumstances were presented in Madafferi v. Australia. The Committee noted that the State’s
reasons for the removal of the person concerned must be weighed against the degree of
hardship the family and its members would encounter as a consequence of such removal.297
In Winata the Committee took into consideration that the complainants’ son ‘has grown in
Australia from his birth 13 years ago, attending Australian schools as an ordinary child would
and developing the social relationships inherent in that.’298 In Madafferi it noted the alien
environment the spouse and children would face, the language barrier for the children, and
the difficulty in caring under such circumstances for the expellee, whose mental health has
been seriously troubled, in part by acts that can be ascribed to the State party.299 The Winata
and Madafferi jurisprudence expands ‘interference’ with the family by combining the
candidate expellee’s right to family life with the attachment of his or her family to the State
of residence (or ‘private life’ in terms of ECHR Article 8), where the family has a freestanding
right to remain in that State of residence. Several members of the Committee
objected to this interpretation of Article 17 because it assimilates Article 17 to Article 8 of
the ECHR.300 The two still differ with respect to adult second-generation immigrants who
are attached to the State of residence, but have no formal family relationships there.301
296 Winata v. Australia Communication No. 930/2000, views of 26 July 2001, CCPR/C/72/D/930/2000, para.
297 Madafferi v. Australia (2004) supra note 226, paras 9.7, 9.8
298 Winata v. Australia, supra note 296, para. 7.3
299 Madafferi v. Australia (2004) supra note 226, para. 9.8
300 Winata v. Australia, supra note 296, Individual opinion by Committee members Mssr. Prafullachandra
Natwarlal Bhagwati, Tawfik Khalil, David Kretzmer and Max Yalden (dissenting); Mrs. Wedgewood in an
individual opinion in Madafferi v. Australia (2004) supra note 226.
301 E.g. Canepa v. Canada (1997) supra note 227.
The ECtHR has in a few cases faced situations similar to that of Winata, namely where the
main obstacle to expulsion was that it would entail difficulties for the families to stay
together because of obstacles to the integration of the spouse or children in the candidate
expellee’s country of origin.302 However, once Article 8 was expanded to cover a person’s
social environment, the need to rely on the right to family life was reduced to situations
where the only link that an individual has to the State of residence is marriage to one of its
nationals.303 This is rarely relevant to long-term settlers.
Article 17 also protects the individual from interference with the home. Although the term
‘home’ in ICCPR Article 17 may reasonably include the social environment of a person, and
in this respect also assimilate to ECHR Article 8, the examples of possible interpretations of
‘home’ offered in the General Comment on Article 17 suggests that the acceptable
interpretation is limited to institutional or even tangible structures. In Canepa v. Canada, the
complainant argued that the term home should be interpreted to encompass the community
of which an individual is a part. After establishing that there will not be a disruption of
immediate family relations, the Committee concluded: ‘There appear to be no circumstances
particular to the author or to his family which would lead the Committee to conclude that
his removal from Canada was an arbitrary interference with his family, nor with his privacy
or home.’304 It thus attached no weight to social ties beyond immediate family connections
for the purpose of Article 17.
4.3.3 Protection of status v. protection of fundamental rights
There is a striking difference between the protection from expulsion available under ICCPR
Article 12(4)305 and that offered under ECHR Article 8. Protection under the former
depends on formal status, while under the latter it depends on the factual situation.
Interestingly, in both the HRC and the ECHR there have been attempts to move from one
type of protection to the other. In both cases, these attempts appear to have failed.
ECtHR judges have in a number of cases advocated the approach by which integrated longterm
residents should be assimilated to nationals and thus become immune to expulsion.306
In Üner v. the Netherlands, however, the majority opinion squarely rejected the proposition that
this assimilation be read into Article 8, insisting that States may maintain the functionability
of Article 8(2).307 States may voluntarily limit their powers. But the particular circumstances
of the individual case, i.e. the length of residence in the State or the individual’s level of
integration into the society of the State are factors to be weighed in the balance against the
ground for expulsion, rather than matters which create a presumption against expulsion.308
Thus, an ‘integrated alien’ is not a separate category of persons enjoying immunity from
expulsion by virtue of quasi-status alone.309
302 E.g.. Boultif v. Switzerland (no. 54273/00) ECHR 2001-IX.
303 As was the case of Mr. Boultif.
304 Canepa v. Canada (1997) supra note 227, 11.5. There were no individual opinions on this issue.
305 Discussed in Part 3.
306 Judge Martens in Beldjoudi v. France 14 EHRR (1992) 801; also his dissenting opinion in Boughanemi v France,
22 EHRR (1996) 228; Judges Morenilla partly dissenting and Judge Wildhaber concurring in Nasri v. France
(1996) 21 EHRR 458; Judge Baka dissenting in Boughanemi v France and in Boujlifa v. France 30 EHRR (1997) 419;
Judge Morenilla, dissenting in Boujlifa; joint dissenting opinion of Judges Baka and Van Dijk in Boujlifa; Joint
Dissenting Opinion of Judges Costa, Zupančič and Türmen in Üner v. Netherlands, supra note 236, para. 5.
307 Üner v. Netherlands, supra note 236, para. 58.
308 Slivenko v. Latvia, supra note 97, para. 95.
309 E.g. Üner v. Netherlands, supra note 236, para. 56-57, which examines this issue in light of committee of
Ministers Recommendation Rec (2000) 15 and Parliamentary Assembly Recommendation 1504(2001).
An opposite trend was discernable in the HRC, namely the attempt to introduce factual
criteria for protection under Article 12(4) rather than formal ones. As noted above, under
Article 12(4), protection from expulsion is dependent on either nationality or a quasi-formal
link to the State of residence.310 This jurisprudence was criticized by a minority of Committee
members, in Stewart and subsequently.311 The dissenting view (on this point held by at least
six of the Committee members)312 was that the ICCPR is concerned with the ‘strong
personal and emotional links an individual may have with the territory where he lives and
with the social circumstances obtaining in it’. Therefore a State is ‘one’s own country’ not by
virtue of formal ties, but by virtue of ‘the web of relationships that form his or her social
environment.’313 Accordingly, the dissenting Committee members considered that Article
12(4) invites consideration of such matters as long standing residence, close personal and
family ties and intentions to remain, as well as to the absence of such ties elsewhere.314 These
are factual, not formal, criteria. Scholars have also suggested that immigrants who have lived
for many years in a foreign country and who have broken off most ties with their country of
nationality but who have not yet acquired the nationality of their host country can also rely
on Article 12(4).315
The minority view in Stewart attaches to Article 12(4) the content of a substantive right
similar to that of ECHR Article 8, rather than one based on status. It is preferable to the
majority opinion, which implies that a State of residence becomes a person’s own country
through the cumulative of failures by two States – that of nationality and itself. In addition, it
is difficult to imagine that the drafters of Article 12(4) intended to attach such specific
interpretation to a very general terminology. on the other hand, the difficulty with the
minority interpretation is that the substantive parameters of that protection, that is the
grounds for expulsion and the factual link to the State of residence, are not specified in the
Article, and would therefore have to be read into ‘his own country’ or ‘arbitrarily’.316
In Canepa v. Canada Mr. Scheinin, in critique of the majority opinion in Stewart as overly
limited, added other potential categories for protection under Article 12(4), namely ‘if the
310 Madafferi v. Australia (2004) supra note 226. In Simalae Toala et al. v. New Zealand (2000), supra note 226, the
Committee went even further in restricting recourse to Art. 12(4), this time on factual grounds, by suggesting
that nationals who have no effective links with the state of nationality cannot claim the right under Art. 12(4)
with respect to that State. para. 11.4.
311 Canepa v. Canada (1997) supra note 227, individual opinions by Elizabeth Evatt and Cecilia Medina Quiroga
(dissenting), and by Christine Chanet (dissenting).
312 Stewart v. Canada (1996), supra note 224, individual opinions by Elizabeth Evatt, Cecilia Medina Quiroga,
Francisco José Aguilar Urbina (dissenting) paras 5-7, and by Prafullachandra Bhagwati, Christine Chanet and
Julio Prado Vallejo. Mr. Eckhart Klein’s opinion does not address the matter squarely but his agreement with
the other dissenting judges may be inferred from his dissatisfaction with the delineation of the relationship
between Arts 12(4) and 13.
313 Both quotes from Dissenting opinion by Elizabeth Evatt and Cecilia Medina Quiroga, co-signed by
Francisco José Aguilar Urbina, para. 5.
314 Dissenting opinion by Elizabeth Evatt and Cecilia Medina Quiroga, co-signed by Francisco José Aguilar
Urbina, paras. 5, 6.
315 E.g. Manfred Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 220, Stig Jagerskiold
‘The Freedom of Movement’ in Louis Henkin (ed) The International Bill of Rights; The Covenant on Civil and Political
Rights (1981) 166, 180-181, Henckaerts (1995), supra note 107, 83, Hurst Hannum The Right to leave and Return in
International Law and Practice (1987) 59. See also The Right to Leave and the Right to Return: A Declaration
Adopted by the Uppsala Colloquium, Sweden, June 21, 1972, reprinted in 7 International Migration Review
(1973), pp. 62-66. Art. 12 restricts the possibility of limiting the right to return of long-term residents.
316 See also Amnesty International: The Right to Return: The Case of the Palestinians, Policy Statement,
Amnesty International's position on forcible exile and the right to return, AI Index: MDE 15/013/2001 (30
March 2001) para. 7.
person is stateless or if it would be impossible or clearly unreasonable for him or her to
integrate into the society corresponding to his or her de jure nationality.’317 Like the majority
view in Stewart, Mr. Scheinin placed the emphasis on the inability to relocate to the State of
nationality; but he expanded this ‘inability’ from formal to practical obstacles. Where the
inability to integrate in the State of nationality results from strong integration of the person
in the State of residence,318 Mr. Scheinin’s modification incorporates the minority view. In
this respect it shifts from reliance on formal status alone, to incorporation of factual
Although the majority’s limited interpretation was adopted in the General Comment on
Article 12(4) adopted in 1999,319 the General Comment leaves open the possibility that
Article 12(4) ‘embrace other categories of long-term residents, including but not limited to
stateless persons arbitrarily deprived of the right to acquire the nationality of the country of
such residence.’ Moreover, the Committee attached significance on the positive link to the
State of residence, noting that ‘other factors may in certain circumstances result in the
establishment of close and enduring connections between a person and a country’, and
requested States to report on the rights of permanent residents to return to their country of
Another step in the same direction was taken by the HRC in Winata, with respect to Article
17. The majority view in the Committee combined the formal family link with the
substantive attachment of the family members of the State of residence. This combination
indirectly gives the same result as application of Article 8 of the ECHR.
In conclusion, despite attempts to duplicate elements of ECHR Article 8 into ICCPR Article
12(4) and vice versa, the two remain instrument remain distinct. The ICCPR concerns the
formal status of a person with reference to how this status came to exist, while the ECHR
examines the circumstances of the individual by reference to their future implications.
4.3.4 EU Directive 2003/109
The criteria for assessing the integration of a person for the purpose of Article 8 also feature
in EU Council Directive 2003/109. A long-term resident may only be expelled if he or she
constitutes an actual and sufficiently serious threat to public policy or public security. When
deciding on expulsion, member States must take into account the duration of residence in
the territory of the Member State, the age of the person concerned, the consequences of this
decision for the person and his family members as well as the links with the country of
residence or the absence of links with the country of origin.321 In other words, the EU
Directive also protects the right to private life322 (although its ultimate goal is to promote
economic and social cohesion in the European Community323 rather than individual human
rights). The criteria for protection called for in the Council of Europe’s Committee of
317 Canepa v. Canada (1997) supra note 227, Individual opinion by Committee Mr. Martin Scheinin (concurring).
318 cf. Üner v. Netherlands, supra note 236, para. 58
319 Human Rights Committee, General Comment 27, Freedom of movement (Art.12), UN Doc
CCPR/C/21/Rev.1/Add.9 (1999), para. 20.
320 Human Rights Committee, General Comment 27, Freedom of movement (Art.12), UN Doc
CCPR/C/21/Rev.1/Add.9 (1999), para. 20.
321 Art. 12(3).
322 The link between the criteria in the directive and ECtHR jurisprudence is explicit in section (16) of the
Council Directive’s preamble.
323 Section (4) of the preamble.
Ministers Recommendation (2000)15 also reflect concern for the individual’s private life as
assessed by the ECtHR, alongside other interests such as social stability of member States.324
4.4 The Prohibition on collective expulsion
If the post-transition regime is contemplating the removal of a large number of individuals
on the basis of their group affiliation, namely their being settlers brought in by an illegal
regime, the collective character of removal becomes pertinent. Collective expulsion has been
understood by the ECtHR,325 and subsequently by the ILC Rapporteur on the expulsion of
aliens as ‘any measure by the competent authorities compelling aliens, as a group, to leave a
country, except where such a measure is taken after and on the basis of a reasonable and
objective examination of the particular case of each individual alien of the group’.326 In other
words, collective expulsion is defined – and prohibited – as lacking individual review. ECHR
Protocol 4 Article 4 provides: ‘Collective expulsion of aliens is prohibited’. Other regional
instruments also prohibit collective expulsion.327 The ICCPR contains no specific provisions
on collective expulsion, but Article 13 (which generally prohibits arbitrary expulsion of aliens
lawfully within the territory of a State) has been interpreted as requiring an individual
inspection of the circumstances of each individual. By implication this prohibits any
collective measure. Henckaerts argues that collective expulsion is qualitatively similar to
individual expulsion, because the requirement of a review process exists also with respect to
individual expulsions. Nonetheless, collective expulsion merits a separate prohibiting
provision because the massive scale of expulsions creates a presumption that certain norms,
particularly the prohibition on discrimination and the right to review, have been violated.328
The ILC Special Rapporteur concludes that ‘it seems reasonable to suggest that there is a
general principle of international law on this matter that is “recognized by civilized nations”
and prohibits collective expulsion’, either as a corollary of the individual right of admission
324 Preambular paras. 2, 3.
325 Sultani v. France, application No. 45223/05, judgment of 20 Sept 2007 Full ref. see also Becker v. Denmark,
Decision of the European commission of Human Rights as to the Admissibility of Application 7011/75 19
Yrbk of European Convention on Human Rights 416 (1976) quoted in Henckaerts (1995), supra note 107, p.
12 ft. 35: the decision to expel must be based on ‘a reasonable and objective examination of the particular cases
of each individual alien of the group’. See also Conka v. Belgium, (Application no. 51564/99) judgment of 5
February 2002, para. 56.
326 A/CN.4/581 para. 107.
327 ACHR Art. 22(9) provides: ‘The collective expulsion of aliens is prohibited.’ American Convention on
Human Rights, 1144 UNTS 123, entered into force July 18, 1978. The African Charter on Human and People’s
Rights Art. 12(5) provides: ‘The mass expulsion of non-nationals shall be prohibited.’ African [Banjul] Charter
on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58
(1982), entered into force Oct. 21, 1986. The preparatory memorandum of the UN Secretariat for the ILC
distinguished collective expulsion from mass expulsion, which it defined by the quantitative element. According
to the memorandum, mass expulsion is prohibited (even if it is not collective) where it imposes an excessive
burden on the receiving State or when it constitutes an abuse of rights. A.CN.4/565 para. 993-994. For present
purposes, it is collective expulsion as defined by the Rapporteur which is pertinent. At any rate, it is doubtful
whether the distinction proposed by the memorandum is reflected in the international instruments. The ILC
Special Rapporteur, for example, considered the prohibition in Art. 12(5) of the Banjul Charter as that of
collective expulsion, even though is it termed ‘mass expulsion’. Indeed, Art. 12(5) appears to reflect the
Secretariat’s criteria for ‘collective expulsion’, because the prohibition is based on the discriminatory nature of
the expulsion in targeting a group, rather than the number of expellees. In the context of settlers under an
illegal regime, it is appropriate to speak of ‘collective expulsion’. because prima facie the issue is that of targeting
a group without considering the particulars of each individual.
328 Henckaerts (1995), supra note 107, 14-15.
of aliens, or because the three regional instruments cover most States members of the
international community.329
A decision to expel settlers under an illegal regime from the territory of the post-transition
regime based on group affiliation would appear to be a collective expulsion, unless a genuine
process for review of individual circumstances is available. The collective appearance of the
expulsion (in the form of numerous identical orders relying on a legislative authorization
without reference to the specific circumstances of the potential expellee) would transfer the
burden of proof to the post-transition regime to show that the expulsion is lawful. However,
the post-transition regime may lift the burden of proof if it provides for a genuine process of
review for each individual. The discussion will naturally revolve on the specific ground for
expulsion. Merely affiliation with the group would not be sufficient. A discussion of grounds
for expulsion follows below.
4.5 The prohibition on inhuman treatment
Another basus for protection of long-term residents against expulsion is offered by Judges
de Meyer and Morenilla of the ECtHR. Both have argued that the expulsion of secondgeneration
immigrants, born or raised from early age in the host State, constitutes inhuman
treatment prohibited under ECHR Article 3.330
Judges de Meyer and Morenilla provide various rationales to their stance, with different
implications for settlers under an illegal regime. In Beldjoudi, Judge de Meyer merely pointed
out that the applicant ‘would be ejected, after over forty years, from a country which has
always in fact been “his” since birth, even though he does not possess its “nationality”’. This
suggests that long-term residence – from birth in this case – renders expulsion a violation of
Article 3. If this is the only relevant criterion, then any second-generation immigrant would
be immune to expulsion. In Nasri Judge de Meyer reiterated his position, but added that he
did so ‘in particular in view of Mr Nasri’s disability’ (deaf-mutism). This addition suggests
that residence from birth in the host State might not always be sufficient to grant a person
immunity from expulsion.
Judge Morenilla in Nasri provided a different rationale for his reliance on Article 3. First he
noted that he would have followed the approach of the majority of the Commission, which
concluded that there had been a violation of Article 3 because of the sensory and social isolation to
which the applicant would have been exposed to if expelled to Algeria.331 However, he suggested that Article 3
might be applicable regardless of the future awaiting the expellee. He considered the general question
which underlies the application of Article 3 to be ‘the limits to be imposed on administrative
measures - or sanctions - of deportation to the country “of origin”, on account of criminal
or antisocial behavior on the part of “second generation” aliens, including those who, like
the applicant, came as children accompanying their migrant worker parents.’332 He noted that
‘[a] State which, for reasons of convenience, accepts immigrant workers and authorizes their
residence becomes responsible for the education and social integration of the children of
such immigrants as it is of the children of its “citizens”. Where such social integration fails,
and the result is antisocial or criminal behavior, the State is also under a duty to make
provision for their social rehabilitation instead of sending them back to their country of
origin, which has no responsibility for the behavior in question and where the possibilities of
329 A/CN.4/581 para. 115.
330 Judge de Meyer in separate opinion in Beldjoudi and in a partly dissenting opinion in Nasri v. France (1996)
supra note 306, Judge Morenilla in a partly dissenting opinion in Nasri.
331 Nasri v. France (1996) supra note 306.
332 Judge Morenilla in a partly dissenting opinion in Nasri v. France (1996) supra note 306, para. 2.
rehabilitation given the foreign social environment, are virtually non-existent. The treatment
of offenders whether on the administrative or criminal level should not therefore differ
according to the national origin of the parents in a way which - through deportation - makes
the sanction more severe in a clearly discriminatory manner.’
According to Judge Morenilla the ‘inhuman treatment’ consists of the host State’s invitation
of immigrants and failure to discharge the responsibilities that accompany such invitation,
resulting in second-generation immigrants finding themselves facing expulsion to a State of
origin where their chances of rehabilitation are virtually non-existent. Unlike Judge de Meyer,
Judge Morenilla attaches significance to the circumstances under which the applicant was
facing expulsion – his criminal activity – but he also attaches significance to the conduct of
the State of long-term residence. It remains unclear whether Judge Morenilla suggests that
Article 3 protects all second-generation immigrants, or only those born to lawful immigrants,
or only those whom the State has failed to integrate, or those who in addition face hardship
in their State of origin for the same reasons for which they did not integrate in the host State.
In Nasri, Judge Wilderhaber interpreted the statements of both partly-dissenting judges as
extending protection under Article 3 to all second-generation immigrants. For this reason he
objected that ‘had we relied on Article 3 (art. 3), we might have implied that no balancing of
public interests can take place but rather that immigrants of the “second generation” cannot
be expelled at all’.333
The expansive interpretation of Article 3, namely the protection of second-generation
immigrants born or raised entirely in the State of residence, would apply to settlers under an
illegal regime. If the inhuman treatment lies in the detachment from their social
environment, the reasons for which the post-transition regime wishes to remove them,
whether or not they are linked to the circumstances of arrival in the territory, are irrelevant.
Indeed, this is precisely the difference between reliance on Article 3 and Article 8. Article 8
allows the balancing of the hardship of expulsion with other considerations such as the
interests of the State of residence and the circumstances of the individual’s arrival in it.
Article 3 does not. But Judge Wilderhaber’s interpretation appears excessive: in determining
the pertinence of Article 3, both Judge de Meyer and Judge Morenilla took account of the
history of the candidate expellees. They also took account of what those persons were
expected to face in the State of destination. While protection under Article 3 is absolute,
entering within its scope is not automatic.
Similarly, Article 3 does not necessarily protect all second-generation settlers under an illegal
regime. They may be altogether denied such protection because they arrived in violation of
international law. Individual circumstances may be relevant, such as whether they acted in
good faith. If protection under Article 3 requires fault on the part of the State of residence,
settlers are clearly unprotected. Finally, if protection under Article 3 depends on the
prospects of integration in the State of origin, the circumstances of each settler have to be
examined separately. To conclude, the prohibition on inhuman treatment does not seem to
create a blanket prohibition on expulsion of settlers brought in under an illegal regime.
4.6 Grounds for expulsion
4.6.1 Introduction
As noted above, the fact that an act of expulsion interferes with a person’s family or private
life does not mean that it is impermissible. Similarly, not every distinction between persons is
prohibited as discriminatory. ECHR Article 8 provides an exhaustive list of grounds that
would justify interference with one’s private life: ‘national security, public safety or economic
333 Concurring Opinion of Judge Wilderhaber in Nasri v. France (1996) supra note 306.
well-being of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of rights and freedoms of others.’334 If an aim is
regarded as legitimate for the purposes of Article 8, it will also be non-discriminatory under
the ECHR. Furthermore, it will probably also be regarded as non-arbitrary for the purposes
of ICCPR Articles 12(4) and 13. Similarly, the requirement of proportionality under ICCPR
Article 13 parallels that of ECHR Article 8. The justification for expulsion is assessed in
relation to the aim and effects of the measure under consideration. There must also be a
‘reasonable relationship of proportionality between the means employed and the aim sought
to be realized’.335 The requirement in Article 8 of the ECHR that the interference be
‘necessary in a democratic society’ has been interpreted to mean that the interference must
be justified by a pressing social need and in particular, proportionate to the legitimate aim
pursued.336 In short, since only the ECHR sets out an exhaustive list of grounds for
expulsion, as well as other specific limitations, it offers the highest threshold for
infringement upon rights.337 The following discussion will therefore focus on whether
expulsion of settlers is permitted under ECHR, and by implications under the ICCPR. It
examines various justifications for the expulsion by a post-transition regime of settler under
an illegal regime. It considers whether expulsion serves a legitimate aim. It also considers
whether it is a proportionate means to achieving that aim. Since this determination should be
made by reference to each individual potential expellee’s circumstances and not in abstractu,
the discussion here will only highlight some general considerations.338
4.6.2 Illegality of the settlers’ presence
Since the transfer of settlers is prohibited both under international law and under the
domestic law of the ousted regime, the expulsion of settlers may formally fall within the
category of ‘prevention of disorder and crime’ for the purpose of the ECHR, which includes
enforcement of immigration law. This ground invokes the right of a State to control the
entry and residence of non-nationals within its territory through immigration legislation.339
Legislation which requires immigrants who have arrived in violation of domestic
immigration law to leave is not discriminatory if it is applied equally towards all aliens.
However, legislation that singles out persons who entered the country under the illegal
regime may be discriminatory, unless the circumstances of arrival are shown to be relevant
for the maintenance of order, and the consequences of the distinction are not
disproportionate to its aim. This raises the question as to the ‘order’ that the post-transition
regime wishes to maintain.
The ECtHR clearly had domestic law in mind when it confirmed that the prevention of
disorder entitles the State to take dissuasive measures such as expulsion against persons who
have broken the domestic law on immigration. If so, there is no reason to single out settlers
under the illegal regime from other entrants. Indeed, it is questionable whether the domestic
334 The ACHR allows a wider scope of restriction, requiring that restrictions be placed only in accordance with
law, for reasons of general interest and in accordance with the purpose for which such restrictions have been
established. ACHR Art. 30.
335 Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits) 6
ECtHR (Ser. A) at 34, para. 10 (1968), cited by Henckaerts (1995), supra note 107, 24.
336 E.g. Üner v. Netherlands, supra note 236, para. 55
337 Cf. the Universal Declaration of Human Rights, Art. 29.
338 If there is no individual assessment, that in itself is a violation on the prohibition on arbitrary or collective
339 Shevanova v. Latvia (application no. 58822/00) judgement of 15 June 2006, para. 74; Kaftailova v. Lithuania
(application no. 59643/00) judgement of 22 June 2006, para. 66.
law of the ousted regime, which was purportedly violated, was even applicable at the time
that the settlers arrived. In addition, dissuasive measures such as expulsion are valuable
against people who act in bad faith with knowledge of the domestic law that they are
violating. This is not clearly the case of settlers. Not only does their knowledge of the actual
situation differ from one individual to another, but as pointed out, the legal status of the
territory was sufficiently indeterminate that it would be excessive to hold them in full
knowledge of the implications of their conduct. On the other hand, it could be argued that
where persons voluntarily settle in territory which is under dispute, they bear the risk that in
due course it will transpire that their settlement was illegal. In contrast, the expulsion of
persons who had not exercised any choice in relocating to the territory carries little weight in
the way of ensuring domestic order and preventing crime.340
Yet the weighty violation of law through the transfer of settlers is not that of domestic law
but of international law. The ‘order’ which their expulsion may maintain is the international
one. But the link between the individual and the disruption of international order is so
distant that it seems inappropriate rely on it under the ‘prevention of disorder and crime’
ground. Furthermore, the responsibility for disruption of order does not attach directly to
the settlers themselves but to the illegal regime. In addition to the issues of faith and
knowledge of the law, it can be queried whether individuals should be held responsible, even
under administrative measures, for the illegal regime’s action.
To conclude, technically it may be possible to justify the expulsion of settlers on the basis of
their illegal presence. However, because of its weakness this ground is likely to be
outbalanced by the hardship it causes when the proportionality test is applied to individual
cases. By way of comparison, in both Winata and Shevanonva, where the individuals knowingly
and consciously violated of immigration law, the violation gave way to individual
circumstances. Such an outcome is all the more expected when individual conduct is in good
4.6.3 Protection of the post-transition regime’s national identity
The main concern voiced in all of the Baltic States was that they would fail to assert they
own identity if Soviets, later Russians, participated in the shaping of the newly-restored
States. This fear was explicitly noted in an Estonian Congress resolution:341
Subsequent to its annexation of the Republic of Estonia, the Soviet Union organized
extensive immigration by its citizens into Estonia. As a result of this, non-citizens
form over one-third of the population of Estonia, which is now threatening the
preservation of the native population of Estonia and the security and unity of the
entire Estonian nation.
Radical nationalists in Estonia emphasized the need to ‘guarantee the existence of the
Estonian nation and culture in the future’ by excluding Russophones from citizenry.342
Russophones and even ethnic Estonians who held moderate positions were labelled ‘internal
enemies’ who were attempting to ‘help the external enemy, strengthening their conquest and
their achievements here’. Further concern was expressed that if Russophone settlers obtain
340 The weight of the person’s bad faith is evident when comparing Shevanova v. Latvia Kaftailova v. Lithuania,
both supra note 339.
341 Quoted in Barrington (1999), supra note 127, 188, quoting Congress of Estonia Position on the Immigrants
from the Former USSR Residing in the Republic of Estonia (1992). The Estonian congress was established by
elections organized in 1990 by the Citizens Committees. Those were the restorationist grassroots organization,
led by former anti-Soviet dissidents. Pettai and Hallik (2002), supra note 295, 509
342 Andrus Ristkok (politician, in 2006 awarded presidential State decoration in recognition of his activities in
the restoration and strengthening of the Estonian State), quoted in Kask (1994), supra note 108, 382.
citizenship rights, new waves of immigration would follow, which would eventually make
Russophones a majority of the population.343
Similar sentiments were voiced in Latvia. Gvido Zemrido, the Chief Justice of the Latvian
Supreme Court, said in 1993:344
It is clear that Latvians want to regain their national identity and that they are trying
to preserve that identity against what they consider foreign intruders.
The National Independence Movement, one of the influential nationalist parties, believed
that independent Latvia would be threatened with extinction given the Russophones’ higher
birth rate.345
The same concern that the settler population would perpetuate the illegal regime’s identity
despite the transition was voiced with respect to the UCR.346 Turkish settlers are regarded as
culturally different from Turkish Cypriots; it is feared that they will change the character of
Cyprus, and turn the northern part in effect into another province of Turkey.347 This concern
is heightened by the fact that Turkish settlers are already a majority on the electoral rolls of
the TRNC, which under the Annan Plan is the future Turkish-Cypriot constituent State of
the UCR. They would therefore control its government and consequently share in the federal
system, as representatives of the Turkish Constituent State.348
Latvia’s concern could not be dismissed as abstract because it was a reaction to actual
detriment already caused to its national identity, through a violation of international law. The
HCNM Max van der Stoel acknowledged Latvia’s concern for its national character:
I fully understand and respect the determination of your Government to maintain
and strengthen the Latvian identity after 50 years of Soviet occupation which greatly
endangered the maintenance of that identity.349
At the same time, the HCNM was unwilling to accept that the group as a whole was
expellable. In commenting on the Latvian policy with regard to the Russophone community
(at the time when the right of the latter to remain in the territory of Latvia and its status
there had not yet been formulated), the HCNM wrote to the Latvian authorities:
As I pointed out in my recommendation of 7 April 1993, your Government has of
course the right to remove from Latvia territory non-citizens whose continuous
presence could be damaging to its vital interest, such as persons who have been
found in proper judicial procedures to have committed grave crimes. But on the
other hand, massive expulsion of non-Latvian residents would be contrary to
generally accepted international humanitarian principles even more so because the
overwhelming majority of the non-Latvians living in your country have not been
343 Kask (1994), supra note 108, 387-388.
344 Quoted in Barrington (1999), supra note 127, 190.
345 Visvaldis Lacis quoted in Spruds (2001), supra note 381, 7.
346 LG Loucaides ‘Expulsion of Settlers from Occupied Territories: The Case of Turkish Settlers in Cyprus’ in
Essays on the Developing Law of Human Rights (1995) 108, 129.
347 Palley (2005), supra note 163, 227, e.g. Doob, supra note 208.
348 Observations made by the Ministry of Foreign Affairs of Cyprus, annexed to European Commission against
Racism and Intolerance (ECRI) Third Report on Cyprus (adopted 16 December 2005) p. 42 ft 43.
349 Letter of the HCNM to the Minister of Foreign Affairs of Latvia, ref No 1463/93/L dated 10 December
1993, CSCE Secretariat, CSCE Communication No. 8, 31 January 1994, p. 2.
actively engaged in oppressive practices during the years of the Soviet occupation of
Latvia. I am glad that your Government is not considering this option.350
Although Latvia’s aim, namely the preservation of its national identity and political
independence, was legitimate, it was not entitled to pursue it by expelling settlers unless they
have been personally jeopardizing the achievement of that aim.
The protection of national identity can be phrased as ‘protection of the rights and freedoms
of others’ to realize the right to self-determination. But maintaining the identity of the local
population does not necessarily require that the settler population be expelled. Theoretically,
protection of the national identity against ‘dilution’ may be achieved through less severe
measures. In Estonia and Latvia, for example, the strategy first attempted was denial of
nationality combined with permission to remain. However, it was vehemently rejected by the
European institutions, which exerted heavy pressure on both States to enable the settler
minority to naturalize, as well as to minimize the differences between nationals and
permanent residents with regard to political and other rights. In Cyprus this midway
arrangement was not even attempted. The Annan Plan provides either for acquisition of
original nationality or outright removal from the territory, with an exception for persons
entitled to remain and later to naturalize. Permanent residence without an option of
naturalization and with restrictions on civil rights was perceived as unacceptable.
The HCNM advocated a strategy that diffuses the danger. He encouraged Estonia and
Latvia to provide the Russophone population with a genuine opportunity to integrate within
the State, formally by acquiring citizenship and substantively through cultural and
educational means. He pointed out:351
The alternative policy is to aim at the integration of the non-Estonian population by
a deliberate policy of facilitating the chances of acquiring Estonian citizenship for
those who express such a wish, and of assuring them full equality with Estonian
citizens… Furthermore, such a policy would certainly not be incompatible with the
wish of the Estonians to ensure and strengthen their political, cultural and linguistic
I am fully aware that the policy I advocate does not only require an effort on the part
of the Latvian Government, but equally a contribution on the part of the non-
Latvian population. Adaptation to the reality of the re-emergence of Latvia as an
independent state requires that at any rate those who have not yet retired from work
and who do not yet speak the Latvian language make a determined effort to master
that language to such a degree that they are able to conduct a simple conversation in
Latvian. In this way they would, without having to sacrifice their cultural or linguistic
identity, provide a convincing proof of their willingness to integrate.
350 Recommendations by the CSCE High Commissioner on National Minorities about the Latvian Draft
Citizenship Law, CSCE Communication No. 8 (Vienna, 31 January 1994)
http://www.osce.org/documents/html/pdftohtml/2729_en.pdf.html (last accessed 12 Oct 2007) p. 3.
351 Letter of the HCNM to the Minister of Foreign Affairs of Estonia, ref No 206/93/L dated 6 April 1993,
CSCE Secretariat, CSCE Communication No. 124, 23 April 1993. p. 3; see also Recommendations by the
CSCE High Commissioner on National Minorities about the Latvian Draft Citizenship Law, CSCE
Communication No. 8 (Vienna, 31 January 1994)
http://www.osce.org/documents/html/pdftohtml/2729_en.pdf.html (last accessed 12 Oct 2007) p. 3.
352 Letter of the HCNM to the Minister of Foreign Affairs of Latvia, ref No 238/93/L dated 6 April 1993,
CSCE Secretariat, CSCE Communication No. 124, 23 April 1993 p. 8-9
The HCNM considered that integration would enhance the chances that the Russophone
minority would embrace Estonian or Latvian identity rather than act to modify it or prevent
its consolidation.353 Programs have subsequently been undertaken to adapt non-titular
citizens into the pre-set titular-dominant State and society.354
The strategy proposed by the HCNM, if it is successful, reduces the threat emanating from
the presence of a specific minority community to the national identity by disintegrating the
minority’s threatening collective character. In terms of the test of proportionality, the
HCNM’s strategy confronts the threat by a less intrusive measure than expulsion, indeed by
one that does not necessarily interfere with any right. As such, it is clearly an alternative
which makes expulsion or exclusion from citizenship an excessive and therefore prohibited
measure. However, while theoretically useful, the viability of this strategy can be questioned
on a number of grounds.
First, alongside the right of the post-transition regime to protect its identity there is the right
of the minority to preserve its character. In other words, while the post-transition regime
may encourage the integration of the settler community in the State’s national society, it may
not demand that the settler community abandon its own identity. Yet it is precisely that
identity, with its particular history and weight, which threatens the identity of the State. The
tension between creating a nation State while maintaining distinct communities, hardly
unique to post-transition regimes, was voiced in Latvian and Estonian politics during the
debates on regulating citizenship and residence.355
Second, integration goes only a limited way towards breaking the attachment of the minority
to its State of origin. This is particularly pertinent when State of origin maintains a formal
role with respect to the post-transition regime. For example, the ethnic link between Turkey
and Turkish Cypriots was recognized when Cyprus became independence and was given
concrete expression in the 1960 treaties of Guarantee, Establishment and Alliance. The
Annan Plan retains the Treaties through Additional Protocols that apply the treaties mutatis
mutandis to the new State of affairs in Cyprus.356 It may be overly ambitious to expect a settler
population to integrate in the post-transition regime’s society while sanctioning a formal role
for the State of origin with regard to the post-transition regime.
4.6.4 Continued influence of the former illegal regime
The link between the settlers and their State of origin raises another problem, particularly
when that link is formalized. This is the concern that the presence of the settler community
in its territory would serve as an excuse for the withdrawn, illegal regime to intervene in the
post-transition regime.
Such intervention may go so far as to involve military force. In fact, this was the scenario
that led to the Turkish military intervention in Cyprus in 1974. Yet the danger perceived by
post-transition regimes is much wider and more subtle. Non-military pressure can be even
353 Letter of the HCNM to the Minister of Foreign Affairs of Latvia, ref No 238/93/L dated 6 April 1993,
CSCE Secretariat, CSCE Communication No. 124, 23 April 1993; Letter of the HCNM to the Minister of
Foreign Affairs of Estonia, ref No 206/93/L dated 6 April 1993, CSCE Secretariat, CSCE Communication No.
124, 23 April 1993.
354 For a description of Estonia’s policy see Pettai and Hallik (2002), supra note 295, 520.
355 Spruds (2001), supra note 381, 9.
356 Annexes II, III, IV, to the Annan Plan Part c: Treaty on Matters related to the New State of Affairs in
Cyprus. See also the ‘special relations and strong ties’ between Turkey and Turkish Cypriots are also recognized
in the Draft act of Adaptation of the Terms of Accession of the United Cyprus Republic to the European
Union, para. 14
more pervasive than a military one, because it is less overt and there are fewer constraints on
resorting to it.
This apprehension exceeds the sociological or internal political impact of a large population
perceived as foreign. For example, the presence of the Turkish settlers is regarded as a means
by which Turkey will have direct influence over the whole of the UCR. The 1992 Cuco
Report noted that most of the settlers were transferred to Cyprus as the result of a decision
of the Turkish authorities; they feel indebted to Turkey for resulting improvement in their
standard of life. For this reason they are particularly sensitive to signals from the Turkish
authorities, especially at election time. The elite of the settlers are also said to be highly
susceptible to Turkish influence.357 This concern was reinforced by Turkey’s characterization
of the settlers as ‘security’ for Turkey, giving rise to the fear that in case of inter-communal
clashes, Turkey would jump at the opportunity to intervene in the Greek-Cypriot
Constituent State of the UCR.358
As real as the danger may be that Turkey would use the presence of its kin population as a
pretext to intervene in the island, it is paradoxically weak as a justification for the expulsion
of the Turkish settlers. Even if all mainland Turks leave the island, there is still a substantial
population – Turkish Cypriots that Turkey regards as its kin and claims to protect.
Moreover, Turkey’s interests in Cyprus have been acknowledged and accepted as legitimate
with limits, both historically and under the Annan Plan. Expulsion of the settlers will
eliminate these interests. In fact, Greek Cypriots objected to the Annan Plan’s perpetuation
of Turkish involvement and influence. In their view, Turkish influence should have been
limited, inter alia by removal of the settlers, rather than expanded as it was by the inclusion of
the security and constitutional order of the constituent States under the amended Treaty of
The Baltic States, too, were and still are concerned with the possibility that Russia would use
the presence of its civilian diaspora to exert political and economic pressure over the Baltic
States. This concern has already proven justified. Russia’s support for ethnic Russians played
significantly into its negotiations with the three States on withdrawal of troops, on economic
measures and more.360 Russia went so far as to indicate in its 1993 Military Doctrine that it
reserved the right to use military force if the rights of Russian citizens in other countries
were violated.361
Theoretically, integration may be the answer to this problem, too. By distancing the settlers
from their State of origin, both formally (through acquisition of the post-transition regime’s
nationality) and substantively (through personal identification with the post-transition
regime), integration would weaken the capacity of the State of origin, namely the withdrawn
illegal regime, to intervene. However, as pointed out, granting the State of origin a formal
international status with respect to the post-transition regime, as Turkey has with respect to
the UCR under the Annan Plan, hinders integration.
4.6.5 National security and fear of a ‘fifth column’
A State may legitimately regard the presence of foreign military forces on its territory as a
national security threat.362 The European High Commissioner for National Minorities
357 Cuco Report, supra note 174, para. 93.
358 Palley (2005), supra note 163, 223, 227.
359 Preamble to Protocol amending the treaty. Palley (2005), supra note 163, 223.
360 Stankevicius (1996), supra note 117, chapter 6 para. 57-60, Spruds (2001), supra note 381, 26=27.
361 Spruds (2001), supra note 381, 22.
362 Slivenko v. Latvia, supra note 97.
(HCNM),363 for example, expressed sympathy to the Estonia’s and Latvia’s concerns about
the presence of Russian troops on their respective territories.364 On this ground, all three
Baltic States excluded active military personnel from eligibility for nationality and even from
permanent residence.
The question is, however, how far beyond active military personnel this ground for
expulsion can expand without constituting excessive interference with private life.
Ordinarily, previous military training does not justify a presumption of danger emanating
from a person, and demanding the departure of all settlers appears in excess of the
requirement of a pressing social need and the test of proportionality. But the situation
examined here is not ‘ordinary’. Estonia, for example, has argued that it may remove former
military personnel and reservists from its territory because in time of conflict (or
precipitating such time) they might act as a ‘fifth column’, facilitating military intervention by
the withdrawn illegal regime.365 The same was argued with respect to Cyprus. Many Turkish
settlers366 are military reservists, who have immigrated after completing compulsory military
service.367 Greek Cypriots are concerned that even if the UCR is demilitarized, Turkey would
have a ready army waiting, merely requiring air drops of equipment and some target
Here too, the HCNM’s strategy was intended to minimize the risk and the concern. In his
words, the integration policy369
would greatly reduce the danger of destabilization, because it would considerably
enhance the chances of the non-Estonian population developing a sense of loyalty
toward Estonia.
It is my opinion that such a policy would be the most effective way to ensure the
loyalty of non-Latvian’s towards Latvia…
In 2003 the ECtHR examined the question of military personnel in the Slivenko v. Latvia case.
The question there was whether retired military personnel and their families should be
treated similarly to military personnel on active duty, or whether this causes disproportionate
interference with their private life.
363 Zurjari p. 18 claims that the establishment of the HCNM post was a Russian initiative. Olga Zurjari-
Ossipova, ‘Human Rights as the Political-Juridical Issues of the Estonian-Russian Inter-State Relations (June
1997), p. 18.
364 Letter of the HCNM to the Minister of Foreign Affairs of Estonia, ref No 206/93/L dated 6 April 1993,
CSCE Secretariat, CSCE Communication No. 124, 23 April 1993; Letter of the HCNM to the Minister of
Foreign Affairs of Latvia, ref No 238/93/L dated 6 April 1993, CSCE Secretariat, CSCE Communication No.
124, 23 April 1993.
365 E.g. Estonia’s position in Vjatšeslav Borzov v. Estonia, Communication No. 1136/2002, UN Doc.
CCPR/C/81/D/1136/2002 (2004) para. 4.10
366 the majority, according to Greek Cypriots, Palley (2005) supra note 163,.
367 Professional Turkish military personnel have for the most part left the TRNC in the 1980s.
368 Observations made by the Ministry of Foreign Affairs of Cyprus, annexed to European Commission against
Racism and Intolerance (ECRI) Third Report on Cyprus (adopted 16 December 2005) p. 43 ft 44.
369 Letter of the HCNM to the Minister of Foreign Affairs of Estonia, ref No 206/93/L dated 6 April 1993,
CSCE Secretariat, CSCE Communication No. 124, 23 April 1993. p. 3; see also Recommendations by the
CSCE High Commissioner on National Minorities about the Latvian Draft Citizenship Law, CSCE
Communication No. 8 (Vienna, 31 January 1994)
http://www.osce.org/documents/html/pdftohtml/2729_en.pdf.html (last accessed 12 Oct 2007) p. 3.
370 Letter of the HCNM to the Minister of Foreign Affairs of Latvia, ref No 238/93/L dated 6 April 1993,
CSCE Secretariat, CSCE Communication No. 124, 23 April 1993 p. 8-9
The first applicant, Tatjana Slivenko, was a permanent Latvian residents of Russian origin.
She had moved to Latvia when she was one month old. Her father was then an actively
serving officer in the Soviet army. She married Nikolay Slivenko, who was also a serving
Soviet military officer in Latvia. Their daughter Karina, the second applicant, was born in
Riga in 1981. In 1994, under the treaty for the withdrawal of Russian troops, Nikolay
Slivenko was required to leave Latvia, being a military person on active duty. Tatjana
Slivenko’s parents were allowed to stay because the Latvian-Russian treaty did not affect
retired military officers.371 Tatjana and Karina Slivenko were also required to leave under the
Latvian law, which applied to family members who had arrived in Latvia as a result of
accompanying a military person.
The applicants claimed that their removal from Latvia had violated their right under ECHR
Article 8. They claimed that their presence in Latvia did not result from a family connection
with a serving military person required to leave, Tatjana having arrived in Latvia long before
she met her husband.
The Latvian government maintained that its policy pursued the legitimate aims of the
protection of national security and the prevention of disorder and crime in a democratic
society.372 It claimed that under the Latvian-Russian treaty there was no distinction between
family members of active military personnel according to the circumstances of their arrival.
They could be required to leave even if they did not arrive in Latvia accompanying those
active personnel. In contrast, Latvian law distinguishes between family members that have
arrived in connection with the military service and those that arrived otherwise; but it does
not distinguish between family members of active personnel and those of retired personnel.
Although Tatjana and her daughter had not arrived in Latvia in connection with Nikolay’s
service, they were still subject to expulsion because they had arrived in Latvia in connection
with Tatjana’s father’s service. Thus, while the father himself was not subject to expulsion,
his daughter and granddaughter were. Effectively, the Latvian policy was that expulsion may
satisfy either the Treaty or Latvian law, expanding the population of expellees so as to
include family members that have arrived with any military personnel, and any family
members of active personnel, regardless of how they arrived in Latvia.373
The ECtHR accepted that the Latvian-Russian Treaty and its implementing measures sought
to protect legitimate interests with respect to military personnel. First, it noted that ‘the
withdrawal of the armed forces of one independent State from the territory of another,
following the dissolution of the State to which they both formerly belonged, constitutes,
from the point of view of the Convention, a legitimate means of dealing with the various
political, social and economic problems arising from that dissolution.’ It was also evident to
the Court that the continued presence of active servicemen of a foreign army, with their
families, may be seen as incompatible with the sovereignty of an independent State and as a
threat to national security.374 As for family members, the Court found that the obligation
upon them to leave the country was not in itself objectionable from the point of view of the
ECHR. The arrangement between Russia dn Latvia even respected the family life of the
persons concerned by obliging Russia to accept the whole family within its territory,
irrespective of the origin or nationality of individual family members. With respect to the
interference with private life, the Court examined the claims that the family was expellable
371 See text at ft. 159.
372 Slivenko v. Latvia (2003), supra note 97, para. 77.
373 This policy was subject to the prohibition on expulsion of Latvian nationals and permanent residents.
374 Slivenko v. Latvia (2003), supra note 97, para. 117.
either as relations of a retired military officer or of an active military officer. Insofar as active
servicemen are concerned, whose expulsion was possible under the Treaty regardless of the
circumstances of their arrival in Latvia, the interference would normally not appear
disproportionate, having regard to the conditions of service of military officers who
occasionally transfer from one place to another. But the permissibility of the expulsion of
family members if active servicemen was subject to a test under Article 8.375 furthermore, the
Court noted that the justification for removal of troops, namely national security and routine
military transfer, does not apply to the same extent to retired military officers and their
families. Instead, more importance must be attached to their legitimate private interests.376
Accordingly, the ECtHR was not willing to accept the expulsion of family members of a
retired officer – who was himself entitled to remain in Latvia – on the basis of an
unsubstantiated presumption of danger to national security. In the circumstances, The Court
found the expulsion of a daughter and granddaughter of a retired serviceman who had lived
their entire lives in Latvia, even if they were also family members of an active serviceman,
would have resulted in a disproportionate infringement on the right to private life.
The dissenting minority saw no reason to distinguish between military personnel and their
families, or between active and retired personnel. They argued that the purpose of the Treaty
was to repatriate the ‘totality of a foreign army’. Since a condition of actual danger to
territorial security will hardly ever be satisfied in relation to family members, setting such a
condition for expelling family members would undermine the effectiveness of the Treaty.377
This position is questionable. Why does the totality of an army necessarily include retirees
and their families? The minority disregarded the fact that people are discharged from the
military and that they resume civilian life. Moreover, it was willing to accept the expulsion
based on a familial relationship with a retired serviceman, even though he himself was
entitled to remain in Latvia, and despite the fact the domestic Latvian law did not allow
expulsion based merely on a familial relationship with the active serviceman.
The treatment of family members of such foreign troops as inextricably linked to the military
may be related to the dissenting Judges’ perspective on the political context in which the
removal of troops was taking place. Unlike the majority,378 the dissenting judges took
account of ‘the specific historical context and purpose for which the treaty was signed,
namely the elimination of the consequences of the Soviet rule of Latvia.’379 If expulsion is
considered in the light of the wider context, namely the reversal of the occupation and
purported annexation of Latvia by the Soviet Union, then there is less of a difference
between retired and active military personnel, given that both groups had taken part in the
consolidation of the Soviet annexation. Yet even then it is not clear that civilian family
members share the same responsibility for the consolidation of the annexation. At any rate,
an argument along these lines exceeds the pursuance of ‘national security’ in the sense of
375 It is not clear to what extent the Court took into consideration the fact that the family had not arrived in
Latvia as a result of the active serviceman’s service.
376 Para. 118. The expulsion of Tatjana and Karina Slivenko was based on their relationship with Tatjana’s
father, rather than with her spouse (apparently because of an administrative mistake). Accordingly their
circumstances were examined in detail and it was found that their expulsion would be disproportionate to the
aim pursued.
377 Slivenko v. Latvia (2003), supra note 97, Joint dissenting opinion of Judges Wildhaber, Ress, Sir Nicolas
Bratza, Cabral Barreto, Greve and Maruste para.7.
378 Slivenko v. Latvia (2003), supra note 97, Majority opinion, Para. 111.
379 Slivenko v. Latvia (2003), supra note 97, Joint dissenting opinion of Judges Wildhaber, Ress, Sir Nicolas
Bratza, Cabral Barreto, Greve and Maruste, para. 4. Judge Maruste also appended a separate dissenting opinion,
in which he detailed further the circumstances leading to the presence of Soviet forces and civilians in Latvia.
military danger. Rather, it concerns the reversal of historic injustice, a matter addressed
expressly by Judge Maruste in a separate dissenting opinion, and discussed below.
4.6.6 Redressing historical injustice
In Slivenko, Judge Maruste opined that ‘the restoration of the independence of the Baltic
States on the basis of legal continuity and the withdrawal of the Soviet/Russian troops has to
be regarded as redress for a historical injustice’, and that ‘the withdrawal of the armed forces
of one independent State from the territory of another constitutes an appropriate way of
dealing with the various political, social and economic problems arising from that historical
When the illegal regime is characterised by its violation of fundamental human rights,
reversion to legal status quo ante is itself an expression of redress of the injustice. In all three
Baltic States, titular communities strongly believed that they had been victims of human
rights violations by the Soviet rule and that the settler population – civilian as well as military
- bore most of the responsibility for this.381
‘Redress of historical injustice’ is not a ground listed in Article 8 to permit expulsion. It
must therefore be framed in terms of existing grounds. It might be regarded as a matter of
‘prevention of disorder’. However, since ‘disorder’ does not appear to have been drafted
with ‘international disorder’ in mind, this category is appropriate only if one takes account of
the injustices caused under domestic law. In many cases the domestic law, particularly that
applicable under the illegal regime, actually permitted the injustices.382 Alternatively,
‘protection of the rights and freedoms of others’ might cover redress for the violation of
international norms.
However, reliance on both ‘prevention of disorder’ and ‘protection of rights and freedoms
of others’ blurs the distinction between individual and collective responsibility. Where
individuals are responsible for specific injustices, their exclusion from the State is acceptable,
falling easily within ‘order and prevention of crime’ or ‘national security’. Indeed, all three
Baltic States deny residence (let alone nationality) to persons involved in crimes against the
State, crimes against humanity or war crimes.383 However, removal of the entire group on the
380 Separate Dissenting Opinion of Judge maruste in Slivenko v. Latvia (2003), supra note 97.
381 Andris Spruds, ‘Minority Issues in the Baltic States in the Context of the NATO Enlargement’ NATO
Individual Research Fellowship Final Report (2001) 7.
382 Again, the applicability of the ousted regime’s law is at least questionable.
383 Estonia, Citizenship Act 1995, Art. 21(1)3) excludes from nationality a person who
Has acted against the Estonian state and its security;
Estonia, Aliens Act, Art. 12(4) excludes form residence a person if:
3)his or her activities have been or are or there is good reason to believe that such activities have been or are
directed against the Estonian state and its security;
12) he or she has or there is good reason to believe that he or she has participated in punitive operations
against civil population;
13) there is good reason to believe that he or she has committed a crime against humanity or a war crime;
Latvia, 1994 Citizenship Law Aticle 11:
(1) Persons shall not be admitted to Latvian citizenship who:
1) have, by unconstitutional methods, acted against the independence of the Republic of Latvia, the democratic
parliamentary structure of the State or the existing State power in Latvia, if such has been established by a
judgment of a court;
Lithuania, Citizenship Law Art. 13: Citizenship of the Republic of Lithuania (naturalisation) shall not be
granted to :
ground of historical injustice caused by the consequences of political manoeuvring is more
problematic. It is true that the presence of the settler community facilitated large scale
deprivation of the titular communities, through political alienation, economic
marginalization, etc. Such deprivation may even constitute a violation of the obligation to
respect the right of peoples to internal self-determination. But this obligation does not
govern the conduct of individuals.384 Accordingly, it is doubtful that individuals may be held
responsible for violating it. Moreover, it is doubtful that they may be expelled because of
their membership in the group whose presence led to the violation, without any specific
responsibility attached to them individually. Thus, it is argued that redress for historical
injustice cannot justify expulsion of an entire group as such. Notably, Judge Maruste only
relied on this ground to justify expulsion of military personnel. As active guardians of the
illegal regime they each can be said to bear a particular responsibility for the historical
injustice. But even Judge Maruste’s opinion takes no account of the requirement of
proportionality between the aim and the means to achieve it, particularly with respect to
family members of military personnel. Their expulsion may lead to excessive injury to their
private life and as such discriminate against them in comparison with other civilian settlers.
To conclude, redress for historical injustice is a weak ground for expulsion of individuals.
Just as the injustice was not individually-addressed, neither should be its redress.
4.6.7 Protection of the rights of others to property
The presence of settlers may have immediate repercussions for the local population. One
particular problem is that of immovable property. One of the main grounds for the rejection
of the Annan Plan by Greek Cypriots was the concern that if Mainland Turks remain, Greek
Cypriots whose property the settlers occupy would never be able to recover their property.385
Turkish settlers were given, under a variety of legislative and other arrangements, rights in
property previously owned by Greek Cypriots. The Annan Plan regulates these property
issues. Formally this regulation is unrelated to the residence issue; in practice the two issues
are related. While removal of settlers would not necessarily deprive them of rights to
property, clearly their remaining in the territory exacerbates potential conflicts between
original owners and current occupants. Thus, the presence of Turkish settlers is perceived as
rendering remote the prospect of reinstatement of Greek Cypriots in their home and
The phenomenon of settlers taking property of locals is not unique to Cyprus. It was
prevalent in East Timor, and in part in the Baltic States. However, in those cases the matter
took on different forms. In East Timor, nine years after the withdrawal of Indonesia and six
years after independence, private property rights remain unresolved, largely because of the
difficulty in reconciling conflicting rights of original owners and later occupants.
Nonetheless, the settlers have for the most part departed. In the Baltic States, settlers have
possibly depleted local resources, but for the most part they were not housed in properties
owned by the local population.386 Accordingly, in both places the conflict of rights is not so
much between the local population and the settlers as between the indigenous population
and the State or among indigenous individuals. Moreover, the process of privatization made
1) persons who have committed crimes against humanity or acts of genocide;
2) persons who took part in criminal activities against the Republic of Lithuania;
384 International instruments do not attach individual responsibility for violating the right to self-determination
of peoples.
385 Palley (2005), supra note 163, 222.
386 Pettai (2007), supra note 86, 13-14.
many competing claims moot. The effect of property disputes over the right of residence of
settlers under an illegal regime is explored elsewhere.387
5.1 Diversity in transitional arrangements
The previous sections examined various grounds for limitations on the right of settlers not
to be expelled. The application of each of these grounds raises some difficulties. In
particular, the motives of the post-transition regime and the political environment within
which it operates are important in assessing the permissibility of its measures. There is
consequently not one absolute response to the question whether settlers may be expelled or
not. This is evident when comparing the arrangements adopted by the various posttransition
Most notable is the difference between the arrangements in the Southern African cases and
those of the Baltic States, East Timor and the TRNC. In the former, illegality of the
settlement had no perceptible effect on post-transition regime policy. As noted above, part
of the explanation is the daunting challenges of decolonization which made this illegality
insignificant. But there is another difference between the two groups of cases which may
explain the difference, and that is the absence, in the Southern African cases, of a formerly
illegal regime which threatens the post-transition regime. In Rhodesia/Zimbabwe and South
Africa, the dispute was an internal one. By the time Namibia had become independent,
South Africa itself was changing and the danger it presented was no more than that
characteristic of any local giant. This allowed for that the regulation of individuals’ status to
be carried out on an almost individual basis. There was no danger of the settlers being used
as pawns in a grand design by an usurper regime.
The situation was very different, or at least perceived as different, with respect to the Baltic
States, East Timor and the TRNC. In all three cases, the withdrawal of the illegal regime was,
or would have been, territorial only. The regime itself – Russia, Indonesia and Turkey –
continues to exist.
East Timor represents the unadulterated version of return to status quo ante. Its legislation
totally excludes Indonesian settlers from acquiring status in East Timor. The viability of this
approach, however, is dependent on the fact that by the time this policy was adopted, there
were practically no settlers whose status would have been affected by it. In other words, East
Timorese legislation addressed a problem that no longer existed. The cases of the Baltic
States and the TRNC demonstrate that where the settler population is in the territory of the
post-transition regime, it cannot be simply wished away. Even then, the arrangements
adopted in each case are dissimilar. In the Baltic States, expulsion of the settlers was taken
off the table at an early stage. The pressure exerted on the post-transition regimes concerned
the regulation of nationality, not of residence. With respect to Cyprus, the internationallysponsored
agreement provided for large-scale removal of settlers, even if not large enough
for the liking of Greek Cypriots. The legal principles underlying the two cases are similar, yet
the practical outcomes differ greatly.
It could be argued that the difference is not legal but a political one. The international
community, represented primarily by Western European States, was loath to upset Russia,
which still retained significant political and military power. In addition, in the euphoria of the
demise of Soviet rule, it may have seemed unjustifiable to castigate individuals for the
misdeeds of a dead empire. Therefore it was deemed acceptable that Russophone settlers
387 Ronen (2008), supra note 1.
would remain in place. In contrast, with respect to the Cyprus conflict, the international
community more readily aligns the prospective post-transition regime. This follows the fact
that the establishment of the TRNC has been declared illegal by the UN Security Council,
and the membership of Cyprus in the EU.
Another, less cynical, explanation for the difference was that although the claim of the Baltic
States was accepted that they were reverting to independence rather than newly independent,
there was little expectation to truly turn the clock fifty years backwards. To start with, during
the fifty-year annexation of the Baltic States, reversion to independence was not seriously
envisaged, except perhaps in the late 1980s. The international community has been more or
less resigned to the annexation. In contrast, the unlawfulness of the TRNC has been dealt
with by legal means from the first moment, and consistently. It was also upheld by the
ECtHR, an international judicial institution, the decisions of which are binding on all parties
to the conflict. Under these circumstances, pursuing the logical conclusions does not appear
in conflict with reasonable expectations.
However, beyond the general political and legal policies, the two situations also different in
the application of law in the circumstances. The formula is identical: the post-transition
regime may expel settlers unless this violates their human rights, most likely the right to
private or family life, and unless such expulsion is discriminatory. But the balancing of these
elements works differently in each case. In other words, the proportionality test yields
different results.
First, the perceived threat presented by mainland Turks to the character of Cyprus may
appear greater than that presented by Russophones in the Baltic States, since mainland Turks
already comprise, according to estimates, the majority of the population in the TRNC.
European Union law on freedom of movement will eventually enlarge the Turkish
population. At the time of writing symmetry is maintained with Greek nationals who are EU
members. Thus, the short-term provisions of the Anan Plan are regarded as the tip of an
iceberg of Turkish migration to the EU, which, at the time of writing, may be regarded as
undesirable. The perceived military threat might also be greater than that which was
perceived with respect to Russia. Turkey’s military involvement in Cyprus was much more
recent than the Soviet Union’s in Estonia. Importantly, the claims of the two illegal regimes
are not on par. The Russian Federation has renounced any claims over the Baltic States, not
only in practice but even formally, by declaring the Molotov-Ribbentrop Pact null and
void.388 In contrast, Turkey remains a guarantor of Cyprus’s security. This makes prospects
of integration more remote.
Differences exist also with regard to the hardship which expulsion is likely to cause to
mainland Turks compared with Russophone settlers. First, the mainland Turkish community
was only thirty years old (or twenty, counting from 1983) when the Annan Plan was
formulated, while the Russophone population in the Baltic States went back fifty years.
There is an entire generation’s difference between the two; there are therefore likely to be
many third-generation settlers in the Baltic States, but few in the TRNC. The hardship in
relocating to the State of origin becomes greater with the passage of time. Third-generation
immigrants are generally less familiar with the culture of the State of origin than secondgeneration
ones, and their integration there is likely to be more difficult. Needless to say, in
neither case was language an obstacle to integration in the State of origin. Another pertinent
difference is the fact that following the breakdown of the Soviet Union, many Russophone
388 Congress of People’s Deputies Resolution on a Political and Legal Appraisal of the Soviet-German Non-
Aggression Treaty of 1939 (1989).
settlers found themselves stateless.389 Thus, stateless Russophones may be protected from
expulsion either under the Convention relating to the Status of Stateless Persons390 or under
ICCPR Article 12(4). Moreover, had it been decided to expel them, it would have been
technically difficult. Statelessness is less of a problem in the case of Turkish settlers. Finally,
the proportionality of expulsion is measured, inter alia, against the behavior of the individual.
A person acting in good faith is entitled to greater consideration than one who has
deliberately acted in bad faith.391 Mainland Turks are not formally forced to relocate to the
TRNC. In contrast, Russophones had little choice when they were relocated to the Baltic
States. On this ground too, they (and their descendants) might have won more sympathy.
Finally, the period of time that has passed since the wrongful act (settlement) may play a
role, analogous to the length of time from the commitment of an offense, in the case of
expulsion because of criminal activity.392
In short, the circumstances of the Russophone community and the mainland Turkish
community differ in that expulsion was deemed a disproportionate – and therefore unlawful
– measure with respect to Russophones in the Baltic States, while not a disproportionate
measure with respect to mainland Turks in the TRNC. It is interesting to compare the
regulation of nationality and residence with that of property. With respect to the latter, the
Plan included a letter from the leaders of Cyprus to the Secretary-General of the Council of
Europe, requesting that the ECtHR strike out any proceedings currently before it concerning
affected property in Cyprus, in order to allow the domestic mechanism established to solve
these cases to proceed.393 This indicates the understanding of the drafters of the Plan that the
provisions on property were not compatible with ECtHR jurisprudence. There is no similar
letter with respect to nationality and residence. This suggests that indeed they regarded the
provisions as compatible with the obligations of the prospective UCR under the ECHR. The
scope of judicial review of the Plan requires further study, and is outside the scope of the
present enquiry.394
5.2 Human rights and conflict resolution
Many of the concerns of the post-transition regime are such that arise from the presence in
the territory of a large settler population. Rarely does a risk emanate from a specific
individual. But under international human rights law, interference with rights is possible only
when there is a direct link between an individual and the aim pursued, or in ECHR
terminology, a ‘pressing social need’ pertaining to a particular individual.
Does this mean that as a matter of law, the hands of the post-transition regime are tied? It
has been questioned whether international human rights law should be fully applicable in
situations of mass movement of persons. For example, when the prohibition on refoulment
389 In 2005, 11% of the residents of Estonia were stateless. Over half of them had been born in Estonia.
European Commission against Racism and Intolerance Third Report on Estonia (adopted on 24 June 2005,
published 21 February 2006) p. 32, para. 124.
390 Adopted on 28 September 1954, entered into force 6 June 1960, Art. 30(1).
391 Compare Shevanova v. Latvia, supra note 339, para. 75 and Shevanova v. Latvia (application no. 58822/00),
judgment of 7 December 2007 para. 49, as well as Sisojeva and Others v. Latvia (application no. 60654/00,
judgment of 16 June 2005, para. 95, with Kaftailova v. Latvia, supra note 339, para. 68.
392 Cf. Boultif v. Switzerland, supra note 302.
393 Foundation Agreement, Annex IX, Attachment 3: Letter to the Secretary-General of the Council of Europe.
394 The Plan would have been endorsed by the Security Council. Part E: Matters to be Submitted to the united
nations security Council for Decision. In view of Behrami and Saramati, this endorsement might have
precluded any further review by the ECtHR. Behrami and Behrami v. France (Application No. 71412/01)
and Saramati v. France, Germany And Norway (Application No. 78166/01), Grand Chamber decision
(Admissibility) 2 May 2007.
was incorporated in the Refugee Convention of 1951, it was understood at least by some
delegations not to apply in situations of mass influx.395 Some scholars argue that the right to
return under the ICCPR is intended to apply only to individuals asserting an individual right,
and that there was no intention to address claims of masses of people who have been
displaced by political transfers of population.396
Gavison posits a more general argument, according to which human rights discourse is not
the appropriate tool for immigration issues. She argues that in order to discharge their
special duties of security, welfare, self determination and community to their own citizens
and residents, States must have greater control over who comes within these categories.
Accordingly, the regulation of immigration should be made not through human rights
discourse but through policy considerations.397
There is something troubling about the notion that the rights of a person depend on the fact
that his or her plight is shared by other individuals for whom that person is not legally
responsible and on the political circumstances in which that plight arises. Such limitation is
absent from the international instruments themselves. However, few human rights are
absolute, and in most cases the right of the individual can be balanced against the interests of
the community, which include considerations on the allocation of resources. At the same
time, the examples above are unique in that it is claimed not that the right in question may
be infringed upon, but that it does not exist at all.
More importantly, there are various reasons to reject the relevance of these arguments with
respect to the issue at hand. First, there is a distinction between allowing persons into the
country – refugees, returnees or ordinary migrants – and forcing them out. Second, as
pointed out earlier, there is an express prohibition under international law of collective
expulsion. Third, there is a difference between denying rights on the ground that resources
are limited and the issue at hand. There is no claim that the post-transition regimes do not
have the resources to accommodate the settlers. The problem is not quantative but
qualitative: the argument is that the settler community as a community presents a risk to the
post-transition regime (in terms of its identity, national security, etc.). This is a problem that
the relevant human rights instruments clearly do not address. That does not mean, however,
that they can be dismissed as irrelevant. The opposite may be submitted – that the fact that
there is a communal problem rather than an individual one cannot justify a derogation from
the provisions of human rights instruments. The solution will have to be found elsewhere, in
a political arrangement. But that arrangement should be compatible with the post-transition
regime’s human rights obligations.
395 ref
396 Jagerskiold (1981) supra note 315, 180, Hannum (1987) supra note 315, 59-60. But see Nowak (1993), supra
note 315, 220.
397 Ruth Gavison, ‘Immigration and the Human Rights Discourse: The Universality of Human Rights and the
Relevance of States and of Numbers’ (July 2008, draft cited by permission and available with the author).

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