Nationality in relation to the succession of States Article 15. Non-discrimination States concerned shall not deny persons concerned the right to retain or acquire a nationality or the right of option upon the succession of States by discriminating on any ground. Commentary (1) The interest in avoiding discriminatory treatment as regards matters of nationality in relation to a succession of States led to the inclusion of certain relevant provisions in several treaties adopted following the First World War, as attested by the advisory opinion of PCIJ on the question concerning the Acquisition of Polish Nationality, in which the Court stated that [o]ne of the first problems which presented itself in connection with the protection of minorities was that of preventing [. . . new States, . . . which, as a result of the war, have had their territory considerably enlarged, and whose population was not therefore clearly defined from the standpoint of political allegiance] from refusing their nationality, on racial, religious or linguistic grounds, to certain categories of persons, in spite of the link which effectively attached them to the territory allocated to one or other of these States.89 (2) The problem of discrimination in matters of nationality was also addressed, albeit in a more general context, in article 9 of the Convention on Reduction of Statelessness, which prohibits the deprivation of nationality on racial, ethnic, religious or political grounds and article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination which requires States to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law in the enjoyment of the right to nationality. The European Convention on Nationality contains a general prohibition of discrimination in matters of nationality as well: article 5, paragraph 1, provides that “[t]he rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin”.90 (3) While discrimination has been mostly based on the above-mentioned criteria, there may still be other grounds for discrimination in nationality matters in relation to a succession of States.91 The Commission therefore decides 89 1923, P.C.I.J., Series B, No. 7, p. 15. Article 18 of the Convention explicitly states that this provision is applicable also in situations of State succession. 91 See, for example, recent discussions concerning the application of the requirement of a clean criminal record for attributing nationality upon option. Experts of the Council of Europe stated in this connection that, “[while a] clean criminal record requirement in the context of naturalization is a usual and normal condition and compatible with European standards in this area, . . . the problem is different in the context of State succession [where] it is doubtful whether . . . under international law citizens that have lived for decades on the territory, perhaps [were] even born there, can be excluded from citizenship just because they have a criminal record” (Report of the experts of the Council of Europe . . . (footnote 35 above), paras. 73 and 76). A similar view has been expressed by UNHCR experts, according to whom “[t]he placement of this condition upon granting of citizenship in the context of State succession is not justified [and] would appear 90 37 not to include in article 15 an illustrative list of such criteria and opted for a general formula prohibiting discrimination on “any ground”, avoiding, at the same time, the risk of any a contrario interpretation. (4) Article 15 prohibits discrimination resulting in the denial of the right of a person concerned to a particular nationality or, as the case may be, to an option. It does not address the question whether a State concerned may use any of the above or similar criteria for enlarging the circle of individuals entitled to acquire its nationality.92 Article 16. Prohibition of arbitrary decisions concerning nationality issues Persons concerned shall not be arbitrarily deprived of the nationality of the predecessor State, or arbitrarily denied the right to acquire the nationality of the successor State or any right of option, to which they are entitled in relation to the succession of States. Commentary (1) Article 16 applies to the specific situation of a succession of States the principle embodied in article 15, paragraph 2, of the Universal Declaration of Human Rights,93 which provides that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. The prohibition of arbitrary deprivation of nationality has been reaffirmed in a number of other instruments, such as the Convention on the Reduction of Statelessness (art. 8, para. 4), the Convention on the Rights of the Child (art. 8), and the European Convention on Nationality (art. 4, subpara. (c), and art. 18). (2) Article 16 contains two elements. The first is the prohibition of the arbitrary withdrawal by the predecessor State of its nationality from persons concerned who were entitled to retain such nationality following the succession of States and of the arbitrary refusal by the successor State to attribute its nationality to persons concerned who were entitled to acquire such nationality either ex lege or upon option. The second element is the prohibition of the arbitrary denial of a person’s right of option that is an expression of the right of a person to change his or her nationality in the context of a succession of States. (3) The purpose of the article is to prevent abuses which may occur in the process of the application of any law or treaty which, in themselves, are consistent with the present draft articles. The phrase “to which they are entitled” refers to the subjective right of any such person based on above-described provisions. discriminatory vis-à-vis a sector of the population which has a genuine and effective link with the [successor State]” (“The Czech and Slovak citizenship laws . . . (footnote 45 above), p. 25) . 92 See the advisory opinion of the Inter-American Court of Human Rights of 19 January 1984 in the case concerning Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica (footnote 21 above). 93 See footnote 25 above.