with which they have a genuine and effective link through habitual residence, but instead against their will are granted the nationality of a different State. Since the persons concerned remain outside the State of their nationality, such a position would be consistent with the traditional conception of de facto statelessness discussed in Part I above if the persons concerned were unable or, for valid reasons, unwilling to avail themselves of the protection of said State. However, what UNHCR says is that such persons are de facto stateless simply because they are condemned to live as foreigners in the State of their habitual residence; the availability or otherwise of the protection of the State of nationality in relation to the State of habitual residence appears not to be relevant in UNHCR’s view. ILC draft Articles on Nationality of Natural Persons in Relation to the Succession of States UNHCR’s position above needs to be assessed in the light of subsequent developments, in particular the completion by the ILC in 1999 of its draft Articles on Nationality of Natural Persons in Relation to the Succession of States,183 draft Article 5 of which provides: Subject to the provisions of the present articles, persons concerned having their habitual residence in the territory affected by the succession of States are presumed to acquire the nationality of the successor State on the date of such succession. According to the ILC commentary to the above provision: (1) The purpose of article 5 is to address the problem of the time-lag between the date of the succession of States and the adoption of legislation or, as the case may be, the conclusion of a treaty between States 183 In December 2000 the UN General Assembly adopted Resolution 55/153, which inter alia invited Governments to take the draft Articles into account as appropriate, considering that “they provide a useful guide for practice”. The General Assembly subsequently adopted a second resolution in December 2004 (Resolution 59/34) which inter alia: “2. Encourages States to consider, as appropriate, at the regional or subregional levels, the elaboration of legal instruments regulating questions of nationality of natural persons in relation to the succession of States, with a view, in particular, to preventing the occurrence of statelessness as a result of a succession of States; 3. Invites Governments to submit comments concerning the advisability of elaborating a legal instrument on the question of nationality of natural persons in relation to the succession of States, including the avoidance of statelessness as a result of a succession of States”. A third resolution was adopted by the General Assembly in December 2008 (Resolution 63/118), which repeats the aforementioned and: “Decides to include in the provisional agenda of its sixty-sixth session [in 2011] the item entitled “Nationality of natural persons in relation to the succession of States”, with the aim of examining the subject, including the question of the form that might be given to the draft articles.” In 2006, the Council of Europe adopted the Convention on the Avoidance of Statelessness in the Context of State Succession, which inter alia takes the draft Articles into consideration. Article 1(c) of the Convention provides: “‘Statelessness’ means the situation where a person is not considered as a national by any State under the operation of its internal law”. However, para. 9 of the Explanatory Report to the Convention adds inter alia: “The definition in terms of binding legal obligation for the States concerned is thus limited to “de iure stateless persons”, although the Final Act of the 1961 United Nations Convention on the Reduction of Statelessness recommends that persons who are “de facto stateless” should as far as possible be treated as “de iure stateless” to enable them to acquire an effective nationality.” Article 3 of the Convention then provides: “The State concerned shall take all appropriate measures to prevent persons who, at the time of the State succession, had the nationality of the predecessor State, from becoming stateless as a result of the succession.” Para. 16 of the Explanatory Report then notes in this respect: “States may if they so wish apply the provisions of the Convention also to de facto stateless persons. This is not a legal obligation but a possibility. State succession may well create situations of de facto statelessness where persons do have the nationality of one of the States concerned but are not able to benefit from the protection of that State.” For purposes of applying the Convention to de facto stateless persons, de facto statelessness thus appears to be construed in the Explanatory Report in terms consistent with the traditional conception of de facto statelessness discussed in Part I above. It may even be more limited than the traditional conception, since no reference is made to persons who are unwilling to avail themselves of protection. 55