As Moscow’s invasion of Ukraine continues, EU Member States are contemplating new sanctions. Earlier this month, the Latvian embassy in Moscow stopped issuing Schengen visas to Russian citizens. Estonia followed suit, and stopped issuing new residence permits for study purposes to citizens of Russia and Belarus. The underlying rationale is the WWI ‘enemy alien’ logic, where all Russian civilians are enemy aliens, and must be treated with suspicion. This is the case, even if the EU is not at war with Russia at all, rather paying billions to Putin’s regime every month. In any event, the populist construction of an ‘enemy alien’ is antithetical to the EU’s constitutional core, which also informs its visa and migration law.
The task of this comment is to provide a broader framing to the populist proposals aiming to undo the EU’s achievements after WWII, characterized by the respect for human rights and the rule of law. Central to these proposals is a replacement of reason, required by the rule of law, with randomly assigned retribution, on the face of it unrelated to any legitimate aims to be achieved by the measure. This replacement of the rule of law with retribution, in turn, counterproductively strengthens Putin’s totalitarian regime. The populist retributive logic, to us, is a stress-test of the rule of law in the EU. It’s good news that, outside Estonia and Latvia, it seems to be holding strong in other Member States.
Rule of Law and the logic of just retribution: Putinism is contagious
Let us first look at our own law: We take it as beyond doubt that any honest proportionality assessment of whatever potential legal bases simply cannot conclude that more than 140.000.000 people, who happen to possess Russian citizenship (an irrational status of domination distributed following feudal principles, not chosen), could be rationally targeted in pursuit of a sufficiently clear and attainable goal. The law of the Union as we read it is crystal clear and it cannot be the task of scholars to do whatever it takes to justify populist measures: the whole point of the rule of law, agreeing with Krygier, is that the law should temper power. Political will cannot supersede the rule of law, unlike what some commentators claim. At issue, thus, is not defending Russian citizens’ rights or privileges. At issue is making sure that our law withstands populist attacks, fuelled by the passions of watching the news about a war at our border. On this count, any contribution, of which there are now plenty, attempting to whitewash the idea of such bans as legally feasible if it reflects political will is repugnant to the idea of the rule of law: the law is there to limit political will, rather than enable it – political will rather than rule of law is precisely what distinguishes Putin’s Russia, especially after it left the Council of Europe, from the EU today.
Unilateral measures to deny entry/residence in the Schengen zone uniquely based on a particular citizenship are unquestionably illegal under the Schengen acquis as it stands today, as Sarah Ganty explained in this blog and Aleksejs Dimitrovs elsewhere. Pretending as if the matter is ‘unclear’ is beyond the point, as the the Koushkaki case and the legislative framework disallows disproportionate legal presumptions. No ‘international relations’ ground can thus be used to introduce a purely citizenship-based disqualification and still comply with the EU’s acquis and the principles of our law: international relations in the 21st century are about states, not about projecting guilt on 140.000.000 individuals who are random victims of citizenship. International law enslaves, as Katja Swider has shown: it prohibits renunciations without acquiring another citizenship, while the latter is extremely difficult to do, especially if one’s country is at war.
The lawfulness of nationality-based blanket visa bans in EU law is questionable. In practice this means that any decision of the Estonian authorities – or those of any other Member State – to base an exclusion of a Russian or a Belarusian citizen on the citizenship status alone is outright unlawful, and has to be struck down immediately by any local court (however bad their track-record is in dealing with all things ‘Russian’). This has prompted Estonia and other WWI-minded nations to look to the EU for inclusion of visa policy within the supranational sanctions framework. Finland agrees, and the Czech Republic – which currently holds the EU Presidency – has also joined this call. The inclusion of Belarus is especially indicative of a diffuse grouping of non-ethnic minorities as enemy aliens: Belarus did not field its soldiers in Ukraine. Further, however dependent on Putin’s regime, the country does not even recognize the annexation of the Crimean peninsula or the Georgian breakaway regions.
However, even given that a sanctions route could be contemplated, it seems to be clear that removing the individual approach from EU migration policy, replacing it with a citizenship-based approach, would be an attempt to undo the human rights logic underpinning EU law today – even if de iure, not always de facto. Worse still, whatever type of a visa is officially suspended on an illegal ground, any such suspension harms those who wish to vote with their feet. And there have been plenty, both in Russia and Belarus. MEP Sergey Lagodinsky is right: helping those wishing to escape the regime as much as possible is indispensable. Since the logic of contemporary law is human rights-aware by definition and takes the individual as the starting point, extensions of sanctions lists is always the way to go, as long as individuals are clearly named and reasons for the bans are compelling enough for the courts in the EU to uphold the measures (not a difficult test to meet, if not an irrelevant one in practice, but a hugely important fundamental starting point in principle).
Meanwhile, the justification for the proposed bans, which now appear to potentially concern all kinds of visas and residence permits, each of which has to be treated differently by law, nevertheless appears to have two common elements: (1) ordinary Russian citizens are directly responsible for the invasion of Ukraine; and (2) entering EU is a privilege, which Russian citizens do not currently deserve. Exceptions to the ban are proposed for some categories of people who already have ties with the EU, approach the status of refugee or asylum seekers. The logic is captured in this sentiment: ‘If you want this privilege, do something in Russia first, earn this privilege, make some bold move, and then leave.’ Other than those who deserve to be in Europe because they have proven themselves, ‘the West doesn’t want Russians partying in the streets of Europe’. The Czech Foreign Minister adds the concern that a visa ban could help ‘decrease the influence of the Russian secret service in the EU.’ Missing in the discourse is whether a ban will be effective, whether dissenters inside Russia have any real possibility to dissent, and whether people who seek to leave Russia for the EU are all partygoers and potential members of the Russian secret service. In contrast with the sanctions imposed until now that sought to target the state and people acting on its behalf, the visa ban targets all Russians.
As the justifications above demonstrate, we are dealing with the logic of retribution: the move towards a visa ban targets people qua people. After more than 75 years of human rights, the logic of the great world wars is back, and the EU, provoked by Putin, potentially emerges as an unlikely promoter. The targeting of enemy aliens, and populist discourse to support such targeting, is unquestionably popular in war time. However, the EU has not officially entered any war with Russia, and the supporters of the pre-constitutional logic behind such bans would probably not advocate an all-out war. Further, war or no war, the populist move to categorize and punish people en masse is precisely what EU law – as well as any other modern constitutional system – was designed to make impossible.
Saying goodbye to the human rights rationale: Assisting the Putin regime through lawlessness
The blanket visa ban – and the discourse surrounding it – punishes a randomly construed group of people en masse. We argue that this ban facilitates the autocratic state, the result precisely opposite to what the EU, including Estonia and Latvia, should be seeking in the current circumstances. The ban is not just unlawful but has deeply problematic consequences: it helps the Putin regime reach its goals of further closing down the country, entrapping the population inside – Soviet-style – where free speech, any form of political dissent, let alone free thinking, is eradicated. The twin tools of inciting divisiveness within closed borders, and attributing state violence to the ‘will of the people’ have historically been the primary mechanisms of perpetuating state-sponsored violence and legitimize dictators.
Despite the current Russian government condemning visa bans, such moves may only serve to strengthen Putin and his circle. In terms of discrete advantages, those who are discontent with the government are now locked in and brutalized if they seek to dissent. A visa ban spreads resentment about Russians among people in EU states and simultaneously about the EU among Russians, shifts a focus away from hard economic choices that could arguably make a dent in Putin’s resolve. More generally speaking, blaming Russian citizens for the invasion of Ukraine significantly legitimizes the Putin government, as he is then perceived to give voice to the preferences of all Russian people.
Both the suggestion to restrict the immigration of Russian citizens into Europe and the Russian government’s condemnation of the same are ironic, as historically, restrictions on emigration has been a tool of Russian state control. International law on being able to leave the country has only recently been observed in Russia and one of Putin’s current goals would likely be to depart from it again. By having a hold on emigration via exit visas, autocratic states like the former USSR could control the flow of capital, information and disgruntled citizens, thereby maintaining the climate of fear and marginalization of dissent. While actual dissent or protest inside Russia to fulfil the conditions of an entry visa, as proposed by Estonia and Finland, is next to impossible given evidence of resulting repression, the requirement to reveal political preferences in order to enter the EU puts anyone seeking to dissent in double jeopardy.
Another point needs to be made in the context of the proposed ban helping to legitimize the Putin regime and its oppression. Law and policy have an expressive function – they affect opinion and behavior outside the specific contours of a particular policy. An increasingly prevalent feature of the populist turn globally is governance through incitement (here, here, and here). While political leaders sometimes may not be able to advocate violence and humiliation of communities through explicit laws, such means are achieved through lending support to certain discourses or discrediting them. From the statements surrounding potential visa bans, Russian citizens are portrayed as having genocidal inclinations, as spies seeking to infiltrate Europe, and as having not yet earned the privilege to enter Europe. They need to prove their deservingness to enter Europe by explicitly turning against the Russian state. It is therefore through defection that a Russian could overcome their Russian tendencies and become European. Simply put, Russians are not people qua people. It is the ‘blood and soil’ justification behind a global passport apartheid via fortress Europe operating at its purest. This is why suspicions will be raised if a Russian seeks to enter, live and work in Europe.
How to explain the sudden prominence of the ban’s proposal?
Despite scholars such as Jussi Lassila pointing out how a visa ban might be counterproductive, it is important to question why it’s being advocated at all. One explanation is that it’s a quick show of solidarity with President Zelensky. But this does not explain why states have not been quick to accept the President’s other suggestions, such as no flight zones, gas import bans and the like: the EU continues bankrolling the war, as the Russian gains due to the high energy prices by far outweigh the military and civilian help that Ukraine gets. To us, there appear to be two explanations – first, blaming foreigners in relation to one’s own borders provides easy popularity for the incumbent government, both inside the state and outside, due to the moral capital that such a move would entail (for a nuanced account on how governments choose moral causes for foreign policy decisions, see Busby). For Estonia and Latvia, this move has the added advantage of appealing to negative sentiments about Russians in its territories, as well as an anti-minority constitutionalism at the heart of these states, which are multi-ethnic societies constitutionally denying this de facto nature, while creating ethnic electorates. The second explanation is that it shifts focus away from sanctions that entail less popular economic choices. Overall, the move would blame, scapegoat and incite people, which would only strengthen incumbent governments inside and outside Russia.
Helping Putin through a populist assault on EU Rule of Law
In conclusion, an en masse visa ban follows a retributive logic that counterproductively strengthens Putin’s position, and in effect abets the continuing invasion of Ukraine. We strongly advise against EU institutions taking this counterproductive populist proposal seriously – other than being unlawful by going against the very rationale of human rights on which modern constitutionalism is built, it corrodes the EU’s commitment to the rule of law. Lending credence to this proposal by considering it seriously or issuing statements would unquestionably entail the EU playing an expressive role in entrenching a populist discourse around the enemy alien.