A family living in Simferopol had to deal with the issue of Ukrainian-Crimean border crossing. The family has a newborn child who received Russian birth certificate. When the family wanted to cross the border, customs officials explained them that they can get them through but they won’t be able to get back to Crimea. Indeed, both parents have Ukrainian passports, but the child is officially a Russian citizen.
They will be in an illegal situation as soon as they arrive in Ukraine without a Ukrainian birth certificate for their son. And it is impossible to obtain a second birth certificate in Ukraine as it is forbidden to duplicate identity papers. The situation is catastrophic as the family has to travel every three months to Ukraine for medical treatment. Lawyers advise to examine the Namibian exception rules to deal with this situation.
Such issues are new for our country and it is not always easy to find a solution. Nobody knows how to answer all new legal questions, not even State officials and lawyers.
But one thing is clear: this situation is limiting the rights and freedoms of the family.
SergiyZaets, lawyerofRegionalcenterofhumanrights, preparedatentativeanswerto the question. He prepared an informational request to Ukrainian authorities to obtain an official explanation. At the same time, he started to research international practice in similar cases.
The “Namibian exception” could be the answer to our problem. This exception was formulated by UN International court on 21 June 1971.
In 1966, the United Nations General Assembly passed resolution 2145 (XXI) that terminated South Africa’s administration of Namibia, formerly known as South West Africa, a former German colony. This resulted in Namibia coming under the administration of the United Nations, but South Africa refused to withdraw from Namibian territory and consequently the situation transformed into an illegal occupation. As a former German colony, Namibia became a mandate territory under the administration of South Africa after the close of the First World War.
Addressing the legal consequences arising for South Africa’s refusal to leave Namibia, the ICJ stated that by “occupying the Territory without title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation,” and that all countries, whether a member of the United Nations or not were “under an obligation to recognize the illegality and invalidity of South Africa’s continued presence in Namibia and to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia.” The ICJ, however, clarified that “non-recognition should not result in depriving the people of Namibia of any advantages”.
The ICJ in the Namibia case explained, “the principle ex injuria jus non oritur dictates that acts which are contrary to international law cannot become a source of legal acts for the wrongdoer… To grant recognition to illegal acts or situation will tend to perpetuate it and be benefitial to the state which has acted illegally.”
The focus of the Namibia exception is to protect the interests of the nationals of the occupied State and not to entrench the authority of an illegal regime. The validity of any other official acts of an illegal regime other than the registration of births, marriages and deaths must not serve “to the detriment of the inhabitants of the territory” being occupied and must not be seen to further “entrench the authority of an illegal regime.”
To put it simply, papers produced by an illegal regime on an occupied territory shouldn’t be recognized by other States, but documents necessary for normal life of ordinary people (birth, marriage and death certificate) must be recognize in order to respect fundamental rights of citizens.
Consultations are provided in Kyiv: Horkogo str. 38-A, office 17
Contacts: Regional center of human rights +38 (044) 284 30 33
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