Unlawful Nationality-Based Bans from the Schengen Zone: Poland, Finland and the Baltic States against Russian Citizens and EU Law

48 Yale Journal of International Law Online 2023, 1

34 Pages Posted: 27 Sep 2022 Last revised: 5 Jul 2023

See all articles by Sarah Ganty

Sarah Ganty

Yale Law School; Ghent University - Faculty of Law; Central European University

Dimitry Kochenov

CEU Democracy Institute, Budapest; CEU Department of Legal Studies, Vienna

Suryapratim Roy

School of Law, Trinity College Dublin

Date Written: September 8, 2022

Abstract

We demonstrate that there is no legal way under current EU law to adopt a citizenship-based ban against Russians and Belarusians acquiring Schengen visas and entering EU territory. Further: amending the law to allow for a citizenship-based ban could go against the core values the Union is based upon, pitting populist proposals against the Rule of Law. This is the reason behind the move by the Baltic States and Poland to implement a de facto ban at the national level illegally using Russian citizenship as a ground for refusal of entry in breach of EU law, following their defeat in Council on the matter. The necessity of other Member States and institutions of the Union to put sufficient pressure to save the Schengen system from unlawful populist fragmentation emerges as an imperative in current circumstances. The Union’s strength is precisely in its inability to act along the populist lines the ban implies, rather than one of its weaknesses, as conveyed by the alarmist agitation of the Baltic States and Poland. Central to the citizenship-based travel ban 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 that could be achieved by the measure. The replacement of the Rule of Law with retribution, in turn, counterproductively strengthens Putin’s totalitarian regime. Initial attempts of adding Belarusians to the proposed visa ban are particularly cynical and should receive much stricter scrutiny still, given the climate of repression in the country which is not at war with Ukraine and has not even recognized the annexation of Crimea. We demonstrate that the whole debate around the visa ban, as well as the Union’s de facto powerlessness in the face of the Member States’ arbitrary replacement of the law with hateful citizenship-based retribution is a stress-test of the Rule of Law in the EU.

Keywords: Schengen, visa, nationality discrimination, visa ban, baltic states, war in ukraine, eu law

Suggested Citation

Ganty, Sarah and Kochenov, Dimitry and Kochenov, Dimitry and Roy, Suryapratim, Unlawful Nationality-Based Bans from the Schengen Zone: Poland, Finland and the Baltic States against Russian Citizens and EU Law (September 8, 2022). 48 Yale Journal of International Law Online 2023, 1, Available at SSRN: https://ssrn.com/abstract=4213643 or http://dx.doi.org/10.2139/ssrn.4213643

Sarah Ganty

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

Ghent University - Faculty of Law ( email )

Universiteitstraat 4
Ghent, B-9000
Belgium

Central European University ( email )

Hungary

Dimitry Kochenov (Contact Author)

CEU Democracy Institute, Budapest ( email )

Nador utca 9
Budapest, H-1051
Hungary

CEU Department of Legal Studies, Vienna ( email )

Quellenstraße 51
Vienna, 1100
Austria

Suryapratim Roy

School of Law, Trinity College Dublin ( email )

2-3 College Green
Dublin, Leinster D2
Ireland

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