Key words: international law, human rights, derogation, state practice

Стаття аналізує можливість держави відступити від положень Міжнародного пакту про громадські та політичні права та Європейської конвенції з прав людини. Також досліджуються необхідні умови для такого відступлення.

Ключові слова: міжнародне право, права людини, відступлення, державна практика

            As it was stated in the Preamble for the Universal Declarations of the Human Rights, recognition of human rights constitute the basis for the freedom, justice, and peace in the world.[2] Besides, the human right sphere is aligned with ethics and morality, so quality of its protection is proportionate to society development level and is the mirror of values of the community.  Consequently, development of the human right standards, its implementation in the state practice involves a concurrent improvement of its own community.
According to the view adopted by the Western world with regard to international human rights law in general terms has tended to emphasize the basic civil and political rights of individuals, that is to say those rights that take the form of claims limiting the power of government over the governed. [8; 249] The European Convention of Human Rights (ECHR) and in the International Covenant on Civil and Political Rights (ICCPR) contain a list of basic civil, political, cultural and other rights, example gratia: the right to life; to liberty and freedom of movement; to equality before the law; to presumption of innocence; freedom of thoughts, conscience, religion and belief; freedom of opinion, expression, assembly and association; prohibition of discrimination, slavery and so on.
Despite fact that both the ECHR and the ICCPR obligates parties to ensure all rights and freedoms defined in those treaties, they also gives to states a right to derogate from its provisions in accordance with article 15 of the ECHR and article 4 of the ICCPR.
Both instruments have a quite unified formulation of the articles of departure which states that in time of war or other public emergency (in the ICCPR – only in the time of public emergency [1]) threatening the life of the nation any High Contracting Party may take measures derogating from  its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. [3] Also, the ICCPR contain an additional condition about absence of discrimination on any ground in providing of derogation.

It should be mentioned that derogation is limited prerogative of a State in order to allow it to respond adequately to a threat to the life of nation. [10]
Both international instruments contain a list of non-derogable rights and freedoms, such as:

• In the ICCPR: right to life; prohibition of torture and inhuman treatment; prohibition of slavery and servitude; prohibition to adjudicate person for acts or omission which weren’t a crime at the moment of its commitment etc.; right for recognition as a person before the law; complex of rights related to freedom of thoughts, conscience and religion;
• In the ECHR: right to life (except deprivation of life as a result of lawful acts of war [3]); prohibition of torture and inhuman treatment; prohibition of slavery and servitude (except service of military character, work which forms part of normal civic obligation etc. [3]); complex of rights related to criminal procedure.

As we could see, provisions of the ICCPR gives wider understanding of the non-derogable rights and it would be rational for state-parties of both the ICCPR and the ECHR use in the  derogation procedure.
In 28 September 1984 year a group of international human right experts and few international associations created the Siracusa Principles on Derogation and Limitation Provisions in the International Covenant on Civil and Political Rights (the Siracusa Principles) which brought forward a certain requirements for the subject of derogation.           
First condition of derogation demands an existence of time of public emergency (or war). It should be mentioned that the scopes of the “public emergency” conception aren’t clearly established, so presence of emergency must therefore be assessed on a case-by-case basis [10]. The Siracusa Principles contain such conditions of public emergency:

• Derogating party must make an official proclamation of the public emergency existence in accordance with its entire legislation;
• Derogating state must notify other parties of the ICCPR about derogation and identify certain provisions of the Covenant from which state depart. Also, notification must contain derogation period, reasons,  description of results which derogating party expect.

Another important derogation element is existence of a threat for the life of a nation. This element must be observed in connection with condition of public emergency. The Siracusa Principles declares that there should be stated an presence of threat to the life of nation if it affects the whole population and whole or part of the State’s territory (1), and if it threatens the physical integrity of the population, territorial integrity or the political independence or the existence or basic functioning of state institutions (2) [9] for derogation from any provisions of ICCPR.

For example, in the case Lawless v. Ireland the European Court of Human Rights (the ECtHR) found a threat to the life of nation based on the combination of the following conditions: presence of the secret army which used violence to attain the purpose at the State’s territory (1); international character of those activities (2); increase of terrorist’s activity (3).

However, as the ECtHR in other decisions stated that in determination of the existence of a threat to life of nation governments enjoy a wide margin of appreciation [6], so the Siracusa Principles didn’t create a strong rule in that sphere.

As it was stated in the ICCPR and the ECHR any derogation must be provided at the extent strictly required by the exigencies of the situation. In the other words, it should be necessary and proportional. This requirement relates to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency. [7] Also, derogation could not be observed as “strictly required by the exigencies of the situation” if the ordinary measures permissible under the specific limitations clauses of the Covenant would be adequate to deal with the threat to the life of the nation. [1]

In the mid of XX century existed the doctrine that states authorities are in better position than international courts in appreciation of scopes and nature of necessary derogations as it was stated in the case Ireland v. the United Kingdom by the ECtHR. But after creation of the Siracusa Principles where para 57 which proclaims that judgment of states bodies cannot be accepted as conclusive. [9] So, in the case Brannigan and McBride v. the United Kingdom the ECtHR found exaggeration of departure and endorsed the rule of the Siracusa Principle.

Conclusion. So, despite that fact that the grate attention of international community is giving for the ensuring of basic human rights standards the international instruments contain a mechanism of derogation from those standards.

The Siracusa Principles contain a number of demands for derogation but they are not obligatory and states often pay no regard to them.

REFERENCES:

1. The International Covenant on Civil and Political Rights: [Electronic resource]. – Access: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
2. The Universal Declaration of Human Rights: [Electronic resource]. – Access: http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf
3. The European Convention on Human Rights: [Electronic resource]. – Access: http://www.echr.coe.int/pages/home.aspx?p=basictexts
4. Case Brannigan and McBride v. the United Kingdom: Judgement, the ECtHR report 1993: [Electronic resource]. – Access: http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-57819&filename=001-57819.pdf
5. Case Lawless v. Ireland: Judgement, the ECtHR report 1960: [Electronic resource]. – Access: http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-57516&filename=001-57516.pdf&TID=epcmxtpacx
6. Case of A. and Others v. UK: Judgement, the ECtHR report 2009: [Electronic resource]. – Access: https://www.unodc.org/tldb/pdf/CASE_OF_A._AND_OTHERS_v._THE_UNITED_KINGDOM-2.doc
7. Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001): [Electronic resource]. – Access: https://www1.umn.edu/humanrts/gencomm/hrc29.html
8. Shaw, Malcolm N. (Malcolm Nathan) – International law / Malcolm N. Shaw. – Cambridge: 1947, 5th edn. – 1288 p.
9. UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4: [Electronic resource]. – Access: https://www.unodc.org/documents/terrorism/Handbook_on_Criminal_Justice_Responses_to_Terrorism_en.pdf
10. United Nation Office of Drugs and Crime, Handbook on Criminal Justice Responses to terrorism: [Electronic resource]. – Access: https://www.unodc.org/documents/terrorism/Handbook_on_Criminal_Justice_Responses_to_Terrorism_en.pdf

Анотація. У статті розглянуто явище біпатризму у міжнародному публічному праві, переваги та недоліки множинного громадянства. Пропонується декілька шляхів вирішення проблеми багатогромадянства на національному рівні.

Keywords: dual nationality, citizen, citizenship, International law.

Problem setting. Dual nationality is a very specific category because it has advantages and disadvantages, and doesn’t have specific measures to prevent it. All countries have different treatment of double citizenship and some of them have favorable position for its development.

The latest scientific researches and publications analysis. The double citizenship has been researched by such prominent scientists as S.Cabirage, I.Protsenko, O.Dovbysh and others.

The article’s purpose. The purpose of this article is to show advantages and disadvantages of dual nationality and some ways to solve this problem.

The statement of basic material of research. It is known that, citizen who has citizenship of two and more countries recognizes as a citizen of the country where he placed only in relations with a host state. This does not depend on an attitude of host country to double citizenship.

The phenomenon of dual nationality entails such problems as a military service by people who have dual citizenship, payment of tax, diplomatic protection. In principle, these questions can be regulated by concluding of bilateral (or multilateral) international treaties. For example, the double citizenship became one of the most critical problems in Germany. That is why Portugal and Germany entered into an agreement about double nationality. According to the treaty, a term of military service in both countries is different: in Germany it lasts 1.5 years and in Portugal – 1 year. This means that if a person has a citizenship of both countries, and served in the Portuguese army, than passed the German border, so he shall serve in the German army 6 additional months.

Problems, which arise in this sphere, are always heard by arbitrations and international courts. It is necessary to remember about Canevaro brothers case, which was heard by the Permanent Court of Arbitration in the Hague in 1912. It was a trial about Italy’s complaint against Peru as to a Peruvian government’s debt to Canevaro brothers. The Court decided that one brother was Peruvian by birth and Italian according to Article 4 of  the Italian Civil Code because his farther was also Italian. R.Canevaro acted as citizen of Peru several times, when he was a candidate for Senate and accepted a post in Consulate-general of Netherlands. Based on that, the government of Peru was entitled to reckon R. Canevaro as an own citizen and denied his status of claimant to Italian citizenship. Because of this, the Court satisfied a claim of two brothers who had only a citizenship of Italy, and refused R. Canevaro (2, p.73).

Dual citizenship is also very popular in Ukraine, especially now. So, there are a lot of thousands people who are using two and more passports. Besides, the State Duma of  the Russian Federation registered a bill of Russian-Ukrainian bilateral treaty about dual nationality in 2004.

Of course, this phenomenon has advantages and disadvantages at the same time. For example, an intensification of connections among countries in the world, preservation of citizenship in a mixed marriage, additional guaranties of realization and protection of citizen’s and human’s  rights and freedoms. However, there are quite contrary outcomes: a person with plural citizenship has considerably less rights to diplomatic protection, according to the Hague Convention of 1930.

Per international law, a protection by state of its citizen as to state of another citizen of this person is forbidden. This fact is confirmed by international practice.

In a legal context the dual citizenship effectiveness for person and the state is minimal. Person can use full rights and exercise duties only before one state and the rights and obligations before other state de-facto are declarative.

Cabirage supposes that this category creates much more problems than benefits. Dual nationality actually slows down a process of forming nation unity. As result of its spreading, particularly in Ukraine, international conflicts can emerge, and it also decreases state’s ability to protect its citizens, especially abroad. Furthermore,  it disseminates separatist views among population. The evidence of this argument is a conflict between the Russian Federation and Georgia, which concerned protection of Russian citizen on the Georgian territory (3).

At the same time there are a few advantages. In particular, the presence of several passports gives an opportunity of free moving in Europe and the USA, for example, if there is a Canadian one.

There are economic aspects too, including tax evasion. For example, Gerard Depardieu, who received a Russian citizenship a few years ago. By then, the ID was 13% in Russia, thereafter in France it was 52%. This means, when person changes his domicile, he avoids a high taxation, so it is clear why actor chose exactly Russia. In spite of this, there is a minus. For example, citizens are obliged to fill up the state treasury regardless of domicile in the USA and Canada. Except this, even people, who have only a permission to reside, are potential citizens of America (4, p.20).

There is a legal impact in the sphere of diplomatic protection of people with two and more citizenships. Firstly, it is accrual of dispute between two states. According to Article 4 of the Hague Convention with some question, which concerns collision of laws about citizenship,  the State could not exerts diplomatic protection of its citizen in another State, where this person also has a citizenship. Secondly, it is  accrual of dispute on the territory of a third state, where a person does not have a citizenship. So, there is a question: which of both States, where a person has a citizenship, must give protection? In this case the criteria of effective citizenship must be applied(1).

An existence of these criteria were de-jure consolidated in 1955, when  the International Court of Justice adjudged the Nottebom’s case. As a result of that, the precedent was founded, according to which in such disputable situations  the citizenship of that state  is allowed with which a person was linked the most. Thereafter, the criteria of effective citizenship are: domicile, a location of movable property and estate property, place of employment, etc. However, S. Chernichenko thinks that this principle in practice contravenes international law because when court decides which of citizenships is more effective, it becomes supranational court. This principle can be applied only by international court (5, p.122).

The problem of double citizenship in international law cannot be resolved in the easy way because some countries support the idea of multiple citizenship (Canada, Australia, Grenada) and other countries are adversaries of it (Ukraine).

This phenomenon can be reduced by concluding treaties about the prevention of dual nationality between countries (e.g. Kazakhstan and Belarus). Moreover, the state bodies must control the process of acquisition of double nationality. In particular, they should make alterations about citizen’s duty to inform the official body about their citizenship of foreign country. If citizen does not inform about it, so this person must be punished by the state, for instance, to pay a fine. A next step to prevent dual nationality is to make a person show  permission about renouncement from another citizenship before a naturalization.

Conclusion. The double citizenship as a legal phenomenon is regulated in majority countries differently. That is why people sometimes use this fact and thanks to passports of foreign countries, they can avoid a high taxation, military service, etc. Nevertheless, there are some measures how to prevent it.

REFERENCES

1. Конвенция о некоторых вопросах, касающихся коллизий между законами о гражданстве 1930 : [Електронний ресурс] – Режим доступу : http://www.hrights.ru/text/b3/Chapter9.htm.

2. Антонович М.М. Міжнародне публічне право / М. М.Антонович. – К.: Вид.дім «КМ Академія». – 2003. – 308 с.

3.  Довбиш М. О. Актуальність подвійного громадянства для України : [Електронний ресурс] / М. О. Довбиш. – Режим доступу : http://конференция.com.ua/files/image/konf_13/doklad_13_4_06.pdf.

4. Кабирадж С. Проблемы двугражданства / С . Кабирадж. – К. : ООО «Междунар. фин. Агенство», 1996. – 32 с.

5. Черниченко С. В. Международно-правовые вопросы гражданства / С. В. Черниченко // М.: «Международные отношения», 1968 – 216 c.