24 Report of the International Law Commission on the work of its fifty-first session cases of succession of States. A number of international bodies have been dealing with this question.16 (3) The second paragraph of the preamble expresses the point that, although nationality is essentially governed by national legislation, the competence of States in this field may be exercised only within the limits set by international law. These limits have been established by various authorities. In its advisory opinion in the case concerning Nationality Decrees Issued in Tunis and Morocco,17 PCIJ emphasized that the question whether a matter was solely within the jurisdiction of a State was essentially a relative question, depending upon the development of international relations, and it held that even in respect of matters which in principle were not regulated by international law, the right of a State to use its discretion might be restricted by obligations which it might have undertaken towards other States, so that its jurisdiction became limited by rules of international law.18 Similarly, article 2 of the Draft Convention on Nationality prepared by the Harvard Law School asserts that the power of a State to confer its nationality is not unlimited.19 Article 1 of the Convention on Certain Questions relating to the Conflict of Nationality Laws (hereinafter “1930 Hague Convention”) provides that, while it is for each State to determine under its own law who are its nationals, such law shall be recognized by other States only “insofar as it is consistent with international conventions, international custom and the principles of law generally recognized with regard to nationality”. Moreover, the Commission considers that, in the specific context of a succession of States, international law has an even larger role to play, as such situation may involve a change of nationality on a large scale. (4) Further international obligations of States in matters of nationality emerged with the development of human rights law after the Second World War, although the need for the respect of the rights of individuals had also been pointed out in connection with the preparations for the Conference for the Codification of International Law.20 16 Thus, the Council of Europe adopted the European Convention on Nationality containing, inter alia, provisions regarding the loss and acquisition of nationality in situations of State succession. Another organ of the Council of Europe, the European Commission for Democracy through Law (Venice Commission), adopted in September 1996 the Declaration on the consequences of State succession for the nationality of natural persons (Venice Declaration) (Council of Europe, Strasbourg, 10 February 1997, document CDL–INF (97) 1). As for the problem of statelessness, including statelessness resulting from a succession of States, it appears to be of growing interest to UNHCR. For a review of the recent activities of UNHCR in this field, see C. A. Batchelor, “UNHCR and issues related to nationality”, Refugee Survey Quarterly, vol. 14, No. 3 (autumn 1995), pp. 91-112. See also addendum to the report of the United Nations High Commissioner for Refugees (Official Records of the General Assembly, Fiftieth Session, Supplement No. 12A (A/50/12/Add.1)), para. 20, and the report of the Subcommittee of the Whole on International Protection (A/AC.96/858), paras. 21–27, as well as General Assembly resolution 51/75. 17 Advisory Opinion, 1923, P.C.I.J., Series B, No. 4, p. 24. 18 See also R. Jennings and A. Watts, eds., Oppenheim’s International Law, 9th ed., vol. I, Peace (London, Longman, 1992), p. 852. 19 Harvard Law School, Research in International Law. I. Nationality, Supplement to the American Journal of International Law, vol. 23 (Cambridge, Mass., 1929), p. 13. 20 “The scope of municipal laws governing nationality must be regarded as limited by consideration of the rights and obligations of As it was stated more recently by the Inter-American Court of Human Rights, “the manner in which States regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction; [the powers enjoyed by the States in that area] are also circumscribed by their obligations to ensure the full protection of human rights”.21 (5) As a result of this evolution in the field of human rights, the traditional approach based on the preponderance of the interests of States over the interests of individuals has subsided. Accordingly, the Commission finds it appropriate to affirm in the third paragraph of the preamble that, in matters concerning nationality, the legitimate interests of both States and individuals should be taken into account.22 (6) The fourth, fifth and seventh paragraphs of the preamble recall international instruments which are of direct relevance to the present draft articles. The instruments referred to in the seventh paragraph of the preamble are the product of the earlier work of the Commission in the fields of nationality and of succession of States. (7) The sixth paragraph of the preamble expresses the fundamental concern of the Commission with the protection of the human rights of persons whose nationality may be affected following a succession of States. State practice has focused on the obligation of the new States born from the territorial changes to protect the basic rights of all inhabitants of their territory without distinction.23 The Commission, however, concludes, that, as a matter of principle, it was important to safeguard basic rights and fundamental freedoms of all persons whose nationality may be affected by a succession, irrespective of the place of their habitual residence. (8) The eighth paragraph of the preamble underlines the need for the codification and progressive development of international law in the area under consideration, i.e. nationality of natural persons in relation to the succession of States. It is interesting to note that, as early as 1956, O’Connell, while recognizing that “[t]he effect of change of sovereignty upon the nationality of the inhabitants of the [territory affected by the succession] is one of the most difficult problems in the law of State succession”, stressed that “[u]pon this subject, perhaps more than any other in the law of State succession, codification or international legislation is urgently demanded”.24 The individuals and of other States.” (League of Nations, Conference for the Codification of International Law, Bases for Discussion drawn up for the Conference by the Preparatory Committee, vol. I, Nationality (Document C.73.M.38.1929.V), Reply of the United States of America, p. 16). 21 Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Inter-American Court of Human Rights, Advisory Opinion OC-4/84 of 19 January 1984, Series A, No. 4, p. 94, para. 32. See also International Law Reports (Cambridge), vol. 79 (1989), para. 32. 22 See also the first paragraph of the preamble of the Venice Declaration (footnote 16 above) and the fourth paragraph of the preamble of the European Convention on Nationality. 23 See paragraphs (1) to (3) and (5) of the commentary to draft article 11 proposed by the Special Rapporteur in his third report (footnote 10 above). 24 D. P. O’Connell, The Law of State Succession (Cambridge, United Kingdom, Cambridge University Press, 1956), pp. 245 and 258.