Abstract
Soviet authors like to point out that “in contrast with the law of 1938 which only briefly referred to the citizenship of children in case of change of citizenship of parents and did not regulate at all the question of citizenship of children in case of adoption, the new law on citizenship devotes to said questions a whole section consisting of 6 articles”. The contents of the package, we are told, reflect “on the whole the practice that had crystallized in the USSR on the designated questions”.1 Despite the alleged element of continuity, the decision itself to give administrative routine proper statutory sanction ostensibly attests to the regime’s “particular concern for the fate and interests of children”2 which, Soviet spokesmen add, “fits the humane principles of development of our state as well as the international law act — the Covenant on civil and political rights”.3 Hyperbole aside, this chapter does tackle some of the thorniest issues of citizenship law, at times with singular results; even so, the current piece of legislation comes fairly close to fulfilling the local claim that it procures “precise answers to the questions encountered in life”4—especially when compared with the treatment afforded these complicated matters by its laconic predecessor.
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Notes
G.I. Tunkin, “Zakon o grazhdanstve SSSR”, Sovetskoe gosudarstvo i pravo, 1979, No.7, p.27 (hereafter abbr. as SGiP). The same idea is expressed by S.I. Rusinova, “Zakon o grazhdanstve SSSR”, Pravovedenie, 1980, No.1, p.7, namely that the 1978 law concentrated “all the experience of resolution of questions of citizenship of children accumulated by Soviet legislation”. See, too, N. Salishcheva, E. Koveshnikov, “Novyi zakon o grazhdanstve SSSR”. Sotsialisticheskaia zakonnost’, 1979, No.3, p.11.
V. Zenin, “Gromadianstvo SRSR — velika chest’ i velika vidpovidal’nist”’, Radianske pravo, 1979, No.2, p.10. In similar vein, R.I. Kulik, Zakon o grazhdanstve SSSR, Moscow 1980, p.67, writes that “in situations which entail change of citizenship of children, these principles [i.e., jus sanguinis and jus soli] are applied by the Soviet legislator in various versions, but with the object of solving the problem in the manner most favorable to the child”. He then adds that, “in the interests of the child”, a further principle is invoked, to wit: “in disputed situations, when different solutions of the problem are possible, the law gives preference to maintaining the Soviet citizenship of the child or else to the child’s acquisition of the citizenship of the USSR”.
V.V. Polianskii, “Printsipy sovetskogo grazhdanstva”, SGiP, 1980, No.5, p.128 (italics in the original). According to R.I. Kulik, op. cit., pp.68–69, the unity is here preserved by resort to the concept of jus sanguinis “which has become traditional in international practice, has acquired the character of a customary norm of international law. This humane principle contains the basis of all premises for guaranteeing the child the special care and protection of the parents which is indispensable at an early age”. Reference is also made in this connection to Art.6 of the Declaration of the Rights of the Child with which Soviet policy is, of course, pronounced to be fully congruent.
See, inter alia, New York Times, July 21, 1980, p.A9; July 22, 1980, p.Al2; August 5, 1980, p.A8; October 18, 1981, p.44. Likewise, I. Konstantinova, “Amerikanskaia Fernida protiv pray roditelei i detei”, Chelovek i zakon, 1981, No.1, pp. 120–123.
Cf., I.M. Kuznetsova, “Spornye voprosy usynovleniia”, Problemy sovershenstvovaniia sovetskogo zakonodatel’stva, Moscow 1980, Trudy 17, p.129.
E.g., I. K. Gorodetskaia, “Grazhdanstvo detei”, SGiP, 1971, No.4, p.42. Idem, Mezhdunarodnaia zashchita pray i interesov detei, Moscow 1973, p.43. Leiden 1968, pp.46–48, and the sources cited therein. Yet, even then a number of Soviet jurists claimed that the outcome was in fact determined by reference to the territorial principle. Cf., K.Ia. Chizhov, in F.I. Kozhevnikov, ed., Mezhdunarodnoe pravo, Moscow 1957, p.151; N.T. Samartseva, in D.B. Levin & G.P. Kaliuzhnaia, eds. , Mezhdunarodnoe pravo, Moscow 1964, p.159; L.A. Aleksidze & G.I. Tunkin, in G.I. Tunkin, ed., Mezhdunarodnoe pravo, Moscow 1974, pp.225–226. Whether the policy here gradually changed or its application was not uniform and vacillated between these two models or one of the factions was in error or tried to pass off wish for deed is impossible to tell without access to primary evidence, —so far unavailable.
Cf., A.A. Rubanov, “Mezhdunarodno—pravovye voprosy zakonodatel’nogo regulirovaniia otnoshenii sovetskogo grazhdanstva”, Sovetskii ezhegodnik mezhdunarodnogo prava 1978, Moscow 1980, p.143. Note that, according to R.I. Kulik, op. cit. , p. 69, situations involving the question of the citizenship of children in families where parents have different citizenships are not rare and the “legislator must take them into account”.
R.I. Kulik, op. cit., p.71, makes the interesting point in this connection that where the legislator, under the terms of the decree of June 15,1979, gives retroactive effect to the rules of acquisition by minor children of USSR citizenship, he makes the results depend entirely on the desires of the parents or other legal representatives of the child. First, of course, this confirms that the “easy” — in the sense of fully automatic — method of acquisition of Soviet citizenship in these cases was only meant to operate prospectively. Second, it suggests that where the relevant facts predated the statute’s entry into force and a formal application was mandatory to engineer the minor child’s conversion to Soviet citizenship, both parents’ animus was required — the foreign parent and the stateless parent alike.
S.J. Roth, “The New Soviet Citizenship Law and Jewish Emigration”, Research Report USSR/79/3 (July 1979), Institute of Jewish Affairs, London, p.5.
R.I. Kulik, op. cit., pp.70–72, makes it sound as though loss of a minor child’s citizenship in connection with loss of citizenship by one of the parents depends on the availability of a duly certified statement of concurrence by the other parent who is a citizen of the USSR. This latter condition reportedly “corresponds to the principle of the primacy of USSR citizenship”. However, the author fudges on the issue by discussing the problem solely in the context of the right of the parent who left Soviet citizenship and acquired the citizenship of another country to submit a petition to grant the child the right to exit from USSR citizenship, if the child permanently resides with this parent outside the confines of the USSR. By extrapolating, one may conclude that even before expatriation both the other spouse’s consent and official permission would have to be secured in order to consummate the denaturalization of the minor children in conjunction with that of one parent. The writer adds a valuable bit of information by observing that the question of the consent of the parents or one of them to change in the citizenship of the child lapses in cases of deprivation of parental rights or recognition that the parent(s) is (are) missing or has (have) been declared dead.
Kommentarii k zakonodatel’stvu o registratsii aktov grazhdanskogo sostoianiia, Moscow 1977, citing Kommentarii k kodeksu o brake i sem’e RSFSR , Moscow 1971, p.230.
A.Ia. Pergament, in Sovetskii ezhegodnik mezhdunarodnogo prava 1974, Moscow 1976, pp.320–321.
E.g., V.I. Menzhinskii, in F.I. Kozhevnikov, ed., Mezhdunarodnoe pravo,Moscow 1964, p.285.
See, L.A. Aleksidze & G.I. Tunkin, in G.I. Tunkin, ed., op. cit., p.224.
V.M. Safronov, Ty - grazhdanin Sovetskogo Soiuza, Moscow 1972, p.21; B.V. Shchetinin, Problemy teorii Sovetskogo gosudarstvennogo prava, Moscow 1974, p.185.
Cf., A.A. Esaian, Nekotorye voprosy Sovetskogo grazhdanstva, Voprosy naseleniia v praktike Sovetskoi Armenii,Erevan 1966, p.94; V.I. Menzhinskii, in F.I. Kozhevnikov, ed., Kurs mezhdunarodnogo prava, 2nd ed., Moscow 1966, p.294; I.K. Gorodetskaia, Mezhdunarodnaia zashchita pray i interesov detei, Moscow 1973, pp.44–45; Kommentarii k zakonodatel’stvu o registratsii aktov grazhdanskogo sostoianiia, p.185; Kommentarii k kodeksu o brake i sem’e RSFSR, p.230.
V.V. Polianskii, op. cit., p.128 (italics in the original). See, too, V. Baiaki, “Obshchee i osobennoe v pravovom regulirovanii grazhdanstva v evropeiskikh sotsialisticheskikh stranakh”, SGiP, 1976, No.11, p.82.
A.A. Rubanov, op. cit., p.143.
V.I. Menzhinskii, in F.I. Kozhevnikov, ed., Mezhdunarodnoe pravo, 4th ed., Moscow 1981, p.225. Similarly, R.I. Kulik, op. cit., p.72.
The comments by R.I. Kulik, op. cit., p.71, quoted in note 12 above are fully applicable here too, mutatis mutandis.
V. Shevtsov, Grazhdanstvo SSSR, Moscow 1980, p.44.
Kommentarii k zakonodatel’stvu, pp.193–194.
See David K. Shipler, “Russian Orphans, Though Well Tended, Have Sad Eyes”, New York Times, January 18, 1979, p.A2. V. Shevtsov, op. cit., p.45, writes: “This rule [i.e., concerning mandatory prior permission by the authorities for the adoption to be consummated] is introduced with the object of reliable protection of the interests of the child who is a citizen of the USSR.”
R. Kulik, “Pravovye nachala sovetskogo grazhdanstva”, Sovety narodnykh deputatov, 1979, No.2, p.37.
See, for instance, the episode recounted in Khronika tekushchikh sobytii (Moscow, Samizdat, 1979), New York, 1979, vyp.52, pp.111–112, concerning the KGB’s bid to split the Kunitsa family and pit the children against the father in connection with the latter’s attempts to win permission to emigrate. In this case, the stratagem reportedly backfired.
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Ginsburgs, G. (1983). Status of Minors. In: The Citizenship Law of the USSR. Law in Eastern Europe, vol 25. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-1184-1_10
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