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Draft Articles on Nationality of Natural Persons in Relation to the Succession of States with Commentaries 1999

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Draft Articles on Nationality of Natural Persons in Relation to the Succession of States with Commentaries 1999 Draft Articles on Nationality of Natural Persons in relation to the Succession of States with commentaries 1999 Text adopted by the International Law Commission at its fifty-first session, in 1999, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 48). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1999, vol. II, Part Two. Copyright © United Nations 2005 Nationality in relation to the succession of States 23 (c) Have their habitual residence in a third State, and were born PREAMBLE in or, before leaving the predecessor State, had their last habitual residence in what has remained part of the territory of the prede- The General Assembly, cessor State or have any other appropriate connection with that State. Considering that problems of nationality arising from succession of States concern the international Article 26. Granting of the right of option by the predecessor and community, the successor States Emphasizing that nationality is essentially gov- Predecessor and successor States shall grant a right of option to erned by internal law within the limits set by interna- all persons concerned covered by the provisions of articles 24 and tional law, 25, paragraph 2, who are qualified to have the nationality of both the predecessor and successor States or of two or more successor Recognizing that in matters concerning nationality, States. due account should be taken both of the legitimate interests of States and those of individuals, 2. TEXT OF THE DRAFT ARTICLES WITH COMMENTARIES Recalling that the Universal Declaration of Human THERETO Rights of 1948 proclaimed the right of every person to a nationality, 48. The text of the draft articles, with commentaries thereto, adopted by the Commission on second reading at Recalling also that the International Covenant on its fifty-first session are reproduced below: Civil and Political Rights of 1966 and the Convention on the Rights of the Child of 1989 recognize the right of every child to acquire a nationality, DRAFT ARTICLES ON NATIONALITY OF NATURAL PERSONS IN RELATION TO THE Emphasizing that the human rights and fundamen- SUCCESSION OF STATES tal freedoms of persons whose nationality may be affected by a succession of States must be fully respected, Commentary Bearing in mind the provisions of the Convention on (1) The draft articles on nationality of natural persons in the Reduction of Statelessness of 1961, the Vienna relation to the succession of States have been prepared on Convention on Succession of States in Respect of Trea- the basis of a request addressed to the Commission by the ties of 1978 and the Vienna Convention on Succession General Assembly in paragraph 8 of its resolution 51/160. of States in Respect of State Property, Archives and As the title indicates, the scope of application of the Debts of 1983, present draft articles is limited, ratione personae, to the nationality of individuals. It does not extend to the nation- Convinced of the need for the codification and pro- ality of legal persons. Ratione materiae the draft articles gressive development of the rules of international law encompass the loss and acquisition of nationality, as well concerning nationality in relation to the succession of as the right of option, as far as they relate to situations of States as a means for ensuring greater juridical secu- succession of States. rity for States and for individuals, (2) The draft articles are divided into two parts. While Declares the following: the provisions of Part I are general, in the sense that they apply to all categories of succession of States, Part II con- Commentary tains specific provisions on attribution and withdrawal of nationality and on the right of option applicable in differ- (1) In the past, the Commission generally presented to ent categories of succession of States. the General Assembly sets of draft articles without a draft (3) The provisions in Part II are grouped into four sec- preamble, leaving its elaboration to States. In this tions, each dealing with a specific type of succession of instance, however, the Commission decides to follow the States. This typology follows, in principle, that of the precedent of the Draft Convention on the Elimination of Vienna Convention on the Succession of States in respect Future Statelessness and draft Convention on the Reduc- tion of Future Statelessness, which were both submitted of State Property, Archives and Debts (hereinafter “the 15 1983 Vienna Convention”). Notwithstanding the fact that with a preamble. the Commission has duly taken into account the practice (2) The first paragraph of the preamble indicates the of States during the process of decolonization for the raison d’être of the present draft articles: the concern of purpose of the elaboration of the provisions in Part I, it the international community as to the resolution of decided to limit the specific categories of succession dealt nationality problems in the case of a succession of States. with in Part II to the following: transfer of part of the ter- Such concerns have re-emerged in connection with recent ritory, unification of States, dissolution of a State and separation of part of the territory. It did not include in this Part a separate section on “Newly independent States”, as it believed that one of the above four sections would be 15 Yearbook . 1954, vol. II, p. 143, document A/2693. The draft applicable, mutatis mutandis, in any remaining case of Declaration on Rights and Duties of States also included a preamble decolonization in the future. (Yearbook . 1949, p. 287). 24 Report of the International Law Commission on the work of its fifty-first session cases of succession of States. A number of international As it was stated more recently by the Inter-American bodies have been dealing with this question.16 Court of Human Rights, “the manner in which States regulate matters bearing on nationality cannot today be (3) The second paragraph of the preamble expresses deemed within their sole jurisdiction; [the powers the point that, although nationality is essentially governed enjoyed by the States in that area] are also circumscribed by national legislation, the competence of States in this by their obligations to ensure the full protection of human field may be exercised only within the limits set by inter- rights”.21 national law. These limits have been established by vari- ous authorities. In its advisory opinion in the case con- (5) As a result of this evolution in the field of human cerning Nationality Decrees Issued in Tunis and rights, the traditional approach based on the preponder- Morocco,17 PCIJ emphasized that the question whether a ance of the interests of States over the interests of individ- matter was solely within the jurisdiction of a State was uals has subsided. Accordingly, the Commission finds it essentially a relative question, depending upon the devel- appropriate to affirm in the third paragraph of the pream- opment of international relations, and it held that even in ble that, in matters concerning nationality, the legitimate interests of both States and individuals should be taken respect of matters which in principle were not regulated 22 by international law, the right of a State to use its discre- into account. tion might be restricted by obligations which it might (6) The fourth, fifth and seventh paragraphs of the pre- have undertaken towards other States, so that its jurisdic- amble recall international instruments which are of direct tion became limited by rules of international law.18 Simi- larly, article 2 of the Draft Convention on Nationality pre- relevance to the present draft articles. The instruments referred to in the seventh paragraph of the preamble are pared by the Harvard Law School asserts that the power the product of the earlier work of the Commission in the of a State to confer its nationality is not unlimited.19 Arti- fields of nationality and of succession of States. cle 1 of the Convention on Certain Questions relating to the Conflict of Nationality Laws (hereinafter “1930 (7) The sixth paragraph of the preamble expresses the Hague Convention”) provides that, while it is for each fundamental concern of the Commission with the protec- State to determine under its own law who are its nationals, tion of the human rights of persons whose nationality may such law shall be recognized by other States only “insofar be affected following a succession of States. State prac- as it is consistent with international conventions, interna- tice has focused on the obligation of the new States born tional custom and the principles of law generally recog- from the territorial changes to protect the basic rights of nized with regard to nationality”. Moreover, the Commis- all inhabitants of their territory without distinction.23 The sion considers that, in the specific context of a succession Commission, however, concludes, that, as a matter of of States, international law has an even larger role to play, principle, it was important to safeguard basic rights and as such situation may involve a change of nationality on a fundamental freedoms of all persons whose nationality large scale. may be affected by a succession, irrespective of the place of their habitual residence. (4) Further international obligations of States in matters of nationality emerged with the development of human (8) The eighth paragraph of the preamble underlines rights law after the Second World War, although the need the need for the codification and progressive develop- for the respect of the rights of individuals had also been ment of international law in the area under consideration, pointed out in connection with the preparations for the i.e.
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