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6НЕКОТОРЫЕ АСПЕКТЫ ГРАЖДАНСТВА В КОНТЕКСТЕ ВЗАИМООТНОШЕНИЙ
ГОСУДАРСТВА И ЛИЧНОСТИ
Казанчян Л.
Старший научный сотрудник Института философии,
социология и право НАН РА, Член Палаты адвокатов РА, Кандидат юридических наук, доцент докторант Института философии, социологии и права НАН Армении
Маилян Г. Член Палаты адвокатов РА, Соискатель Института философии, социология и право НАН РА
SOME ASPECTS OF CITIZENSHIP IN THE CONTEXT OF THE RELATIONSHIP BETWEEN THE
STATE AND THE INDIVIDUAL
Kazanchian L.
Senior Researcher at the Institute of Philosophy, Sociology and Law NAS RA, Member of Chamber of Advocates of the RA, Candidate of Judicial Sciences, Associate Professor Doctoral Student of the Institute of Philosophy, Sociology and Law NAS
Mailyan G.
Member of the RA Chamber of Advocates, Applicant of the Institute of Philosophy, Sociology and Law of the National Academy of Sciences of the Republic of Armenia DOI: 10.5281/zenodo.7340784
Аннотация
В данной научной статье, на основании изучения мнений известных правоведов, международного и внутригосударственного законодательства, представлены особенности института гражданства в контексте взаимоотношений между личностью и государством. В частности, раскрываются особенности видов приобретения гражданства, а также понятий "стабильность отношений", "наличие правовой связи между гражданином и государством" и других важные компонентов понятия "гражданство".
Abstract
In this scientific article, based on the study of the opinions of famous jurists, international and domestic legislation, the features of the institution of citizenship in the context of the relationship between the individual and the state are presented. In particular, the features of the types of acquisition of citizenship, as well as the concepts of "stability of relations", "the presence of a legal connection between a citizen and the state" and other important components of the concept of "citizenship" are revealed.
Ключевые слова: Гражданство, демократическое государство, Всеобщая декларация прав человека, Конституция, национальность, правовая связь между государством и гражданином, принципы филиации, права, свободы обязанности.
Keywords: Citizenship, democratic state, Universal Declaration of Human Rights, Constitution, nationality, legal relationship between state and citizen, principles of filiation, rights, freedoms, duties.
In a modern democratic, legal state, the concept of "citizenship" is an interaction and relationship between the individual and the state is based primarily on the institution of citizenship or allegiance. This special connection, first of all, represents the legal affiliation of a person to the state, the acquisition by a person of the specific qualities of a citizen, the existence of mutual rights and obligations of a citizen and the state, as well as the protection of a citizen by the state within the country and abroad [13,p.37-38].
It should be noted that citizenship is also an important and basic element of the legal status of an individual, since it is associated with the scope of rights, freedoms and duties and their guaranteed state protection. Moreover, citizenship is not just a prerequisite for a large number of rights, freedoms and obligations, but
also establishes political, socio-economic ties between a person and the state. [10,p.37-38]. It should be noted, that in view of the foregoing, Art. 15 of the Universal Declaration of Human Rights (10.10.1948) secured the right of every person to nationality. According to Declaration, no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality [20]. This principle is also enshrined in Art. 4 of the European Convention on Nationality, in Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination [8,11]. It is obvious, that the right to nationality enshrined in international legal documents guarantees a person the right, on the basis of personal will, to acquire and terminate citizenship, to exercise the choice of citizenship.
It should be noted, that in modern legal science
and practice, the term "citizenship " is determined as a stable legal relationship of a person with the State, expressed in the totality of their mutual rights and obligation [12,p.23-25;2,p.43-44;6,p.353;21, p.56]. Moreover, "citizenship" implies the status of freedom with accompanying responsibilities [7]. In particular, it is impossible not to agree with the opinion of a well-known jurist R. E. Howard-Hassmann, that citizenship is a reciprocal relationship of rights and duties between individuals and states; therefore, stateless people cannot claim any rights from any state. In some cases, international human rights law confers equal rights on both citizens and noncitizens [10,p.63]. However, the right to nationality is defend in modern legal literature and in legal practice as a right, which is founded on the existence of a genuine and effective link between an individual and a State [1, p.8-9].
According to Art. 3 "The Russian Federation Law on Russian Federation citizenship", the "citizenship of the Russian Federation" means a stable legal relation of a person with the Russian Federation that manifests itself in an aggregate of their mutual rights and duties [17]. It should be noted, that the same principle is enshrined in the constitutions of most post-Soviet countries. For instance, according to Art.3 of the Law of the Republic of Armenia "On the Citizenship of The Republic of Armenia", the citizens of the Republic of Armenia are the persons who have acquired the citizenship of the Republic of Armenia according to this Law [16]. It is noteworthy, that the genuine and effective link, made manifest by birth, residency, and/or descent, is now reflected in the provisions of most States' nationality legislation as well as in recent international instruments relating to nationality, such as the 1997 European Convention on Nationality.
The conducted studies show, that based on the definition, among the important signs (characteristics) of citizenship, reflecting its internal content, should be attributed: a) the stability of relation; b) the existence of a legal connection between a citizen and the state; c) the expression of relation in the totality of mutual rights and obligations of a citizen and the state in an aggregate of mutual rights and duties of a citizen and the state [18, p.4-5].
1. The stability of the relation between the individual and the state is expressed in the fact that citizenship exists permanently, regardless of whether the person is on the territory of the state of citizenship or outside it. In particular, according to the provisions of Article.6 and Art. 7 of the Law of the Republic of Armenia "On The Citizenship of The Republic of Armenia", the residence outside of the territory of the Republic of Armenia does not perfunctorily result in loss of the citizenship of the Republic of Armenia. Moreover, the citizens of the Republic of Armenia enjoy the protection and patronage of the Republic of Armenia. The Republic of Armenia, its diplomatic and consular mission and the officials of the above are required to protect the rights of the citizens of the Republic of Armenia abroad as well as to take measures towards the restoration of the infringed rights of the citizens of the Republic of Armenia according to the legislation of the host country and international treaties [16].
2. The legal relationship between a citizen and the state in the modern legal literature is defined as a
continuing relationship based on law, the equal subjects of which are the citizen and the state represented by its bodies. Therefore, legal relations are associated with the acquisition and termination of citizenship, are regulated by law - based on the Constitution, laws and bylaws [4, p.1-9; 9,p.17-18;18, p.4-5].
3. In the scientific literature, there is a point of view, according to which the legislative definition of "citizenship" should be supplemented not only with mutual mutual rights and and obligations, but also with mutual responsibility of the state and the citizen [18, p.5-6].
It should be noted, that the content of relations associated with citizenship implies the recognition of a person and the state as equal and equally liable subjects endowed with mutual responsibility. Moreover, the individual has a wide range of rights and obligations, and the state assumes the obligation to provide legal protection. It should be noted, that I.S. Khomina proposes to supplement the legislative definition of citizenship with an indication of the existence, not only of rights and obligations, but also of mutual responsibility of the state and the citizen, since the totality of mutual rights and obligations always generates mutual responsibility [14, p.7-8].
Consequently, there is a mutual obligation of the state (represented by its bodies, officials) responsibly and a citizen.
In a modern democratic state, the are 2 principles of acquiring citizenship are practiced-fliation and naturalization. Filiation is a way of acquiring citizenship, in which a person becomes a citizen of the country upon birth. Its difference from naturalization is that the subject does not express his will, but becomes a citizen of a particular state simply by being born.
It should be noted, that there are 2 principles of filiation:
1. the acquisition of citizenship by the right of soil and by the right of blood (jus sanguinis), when the citizenship of both parents or one of them is assigned to the newborn;
2. the acquisition of citizenship by the law of the soil (jus soli), when a child automatically becomes a citizen of the country in whose territory he was born.
It should be noted, that about 30 countries of the world adhere to the principle of acquiring citizenship by birth. The list includes such countries as the United States of America, Canada, Mexico, Chile, Argentina and Brazil, as well as post-Soviet countries (Republic of Armenia, Republic of Georgia, Russian Federation, etc.).
It is worth noting, that international legal acts and domestic law prohibit leaving children without citizenship of any state. Thus, the United Nations Convention on the Rights of the Child (UNCRC), which has been ratified by almost every State, declares, that the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality, and, as far as possible, the right to know and be cared for by his or her parents [19]. According to the Art. 47 of the Constitution of RA, a child born to citizens of the Republic of Armenia shall be a citizen of the Republic of Armenia. Moreover, every child with one of the parents holding citizenship of the Republic of Armenia shall have the right to acquire citizenship of
the Republic of Armenia. In addition, Armenians by national origin shall have the right to acquire citizenship of the Republic of Armenia upon settling in the territory of the Republic Armenia and shall acquire citizenship of the Republic of Armenia through a simplified procedure prescribed by law [7].
It is well known, that naturalization is the legal act or process by which a non-citizen of a country may acquire citizenship or nationality of that country. It may be done automatically by a statute, i.e., without any effort on the part of the individual, or it may involve an application or a motion and approval by legal authorities [1]. Moreover, a citizen of the RA cannot be deprived of the citizenship of the Republic of Armenia or of the right to change the citizenship but the cases prescribed by the Law of the Republic of Armenia "On The Citizenship of The Republic of Armenia"[16].
Conducted research underlines, that some problems concerning citizenship issues are of an interstate nature. For instance, the problem of dual citizenship, and the related problems of serving in the armed forces or holding certain government positions. Therefore, the uniform legal regulation of such citizenship issues on the scale of the world community will reduce the number of controversial situations in the field of citizenship [3, p. 5]. This circumstance testifies to the relevance of studying the international legal regulation of citizenship issues and its impact on the development of Russian legislation on citizenship.
It is obvious, that the citizenship provides a person with a wider range of rights and freedoms, than thouse who do not have this status, but also gives rise to greater obligations to the state. However, all people, regardless of the judicial status of the individual, have the right to the protection of life, freedom, their property by the state on whose territory they are located, and, in turn, are obliged to know and comply with the laws of the country of residence.
According to the Art. 44 of the Constitution of RA and Art. 6 of the Law on Freedom of Assembly of RA, everyone (citizens of the Republic of Armenia, foreign citizens and stateless persons) shall have the right to freely participate and organize peaceful, unarmed assemblies [7].
Meanwhile, Art. 60 of the Constitution of RA emphasizes, that foreign citizens and stateless persons shall not enjoy the right of ownership over land, exceptfor the cases prescribed by law [7]. Moreover, art. 4 of the Land Code of the RA enshrines "In accordance with the Constitution of the Republic of Armenia, foreign citizens and stateless persons cannot own land in the Republic of Armenia. They can only be land users. They can only be land users'" [15].
Based on the above, we can conclude, that citizenship is a complex multifaceted institution of constitutional law, as well as the theory of state and law, which has an important legal significance for the establishment and development of relations between the state and the individual.
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