Forthcoming in the Max Planck Yearbook of United Nations Law (27)
grant its nationality, nor should it attribute it against the will of the concerned individuals.
Moreover, as Art. 22 seems to suggest, where the state ceases to exist and dissolves into two
or more successor states, former nationals of the predecessor state who are habitually residing
outside the territorial unit in question, but nevertheless bear an ‘appropriate legal connection’
with it, are entitled to the nationality of the relevant successor state. Considering the
commitments to avoid statelessness, the Commission decided to stretch this provision to benefit
individuals habitually residing in a third state who were either born in the territory at issue, had
their last habitual residence therein, or possessed any appropriate connections with the
successor state.84
The ILC nevertheless took the avoidance of statelessness to its breaking point by
allowing the imposition of nationality on persons habitually residing outside the territory at
issue, but who would otherwise be rendered stateless.85 Although this may seem desirable
under international law,86 insofar as it would in theory help reduce statelessness, no state is free
to acquire the allegiance of natural persons without their consent. The Commission’s
conclusion seems to reflect – even if unintentionally – the logic that nationality serves
principally the interests of states and that stateless individuals are objects capable of being
appropriated (akin to the concept of terra nullius). Yet, under a human rights paradigm, the
individual’s right to choose a nationality would likely trump any such attempts of forced
naturalizations.87
By contrast, the ILC privileged the will of individuals whenever they qualify to acquire
the nationality of two or more states. The so-called ‘right of option’ enables individuals to
UN ILC, ‘Draft Articles on Nationality of Natural Persons in Relation to the Succession of States’, at 44.
Ibid., at 31.
86
See e.g., Weis, Nationality and Statelessness in International Law, at 115; E.S. Zeballos, La nationalité au point
de vue de la législation comparée et du droit privé humain (BnF 1914), at 238–240.
87
On a similar issue, see generally H. Lauterpacht, ‘The Nationality of Denationalized Persons’ (1948) 1 The
Jewish Yearbook of International Law 164-185.
84
85
22
Electronic copy available at: https://ssrn.com/abstract=4816199