Nationality in relation to the succession of States
successor State.150 The withdrawal of the nationality of
the predecessor State is subject to two conditions. First,
that persons qualified to acquire the nationality of the successor State did not opt for the retention of the nationality
of the predecessor State. This condition is spelled out in
the chapeau of article 24 to which article 25, paragraph 1,
refers. Second, that such withdrawal shall not occur prior
to the effective acquisition of the successor State’s nationality. The purpose of this condition is to avoid statelessness, even if only temporary, which could result from a
premature withdrawal of nationality.151
(10) Paragraph 2 of article 25 lists the categories of
persons concerned who are qualified to acquire the
nationality of the successor State but from whom the
predecessor State shall not withdraw its nationality,
unless they opt for the nationality of the successor State.
The criteria used for the determination of these categories
of persons are the same as those in article 24.
(11) Article 26 deals with the right of option. There are
numerous cases in State practice where a right of option
was granted in case of separation of part or parts of the
territory.152
150
For examples of State practice, see paragraphs (1) to (8) of the
commentary to draft article 24 proposed by the Special Rapporteur in
his third report (footnote 10 above). As regards the doctrine, see footnote 115 above.
151
See also provision 12 of the Venice Declaration (footnote 116
above) which prohibits the predecessor State from withdrawing its
nationality from its own nationals who have been unable to acquire the
nationality of a successor State.
152
See paragraphs (1) to (5) of the commentary to draft article 25
proposed by the Special Rapporteur in his third report (footnote 10
above).
47
(12) Article 26 covers both the option between the
nationalities of the predecessor State and a successor
State as well as the option between the nationalities of two
or more successor States. Contrary to what is provided in
article 20 with respect to a transfer of territory, in the case
of separation of part or parts of the territory, the right of
option for the retention of the nationality of the predecessor State is not envisaged for all persons concerned qualified to acquire the nationality of the successor State. This
right is limited to those persons who, at the same time,
fulfil one of the criteria in article 24 and one of those in
article 25, paragraph 2. This would be, for instance, the
case of a person concerned habitually resident in a third
State who was born in the territory of what became a successor State but before leaving for abroad had his or her
last habitual residence in the territory that has remained
part of the predecessor State.
(13) Similarly, the right of option between the nationalities of two or more successor States has to be granted
only to persons concerned who, by virtue of the criteria in
article 24, are qualified to acquire the nationality of more
than one successor State. Leaving aside the case where
the criterion referred to in subparagraph (b) (i) would be
applicable, the right of option is only envisaged for some
persons concerned who are habitually resident in a third
State.
(14) As in the case of article 23, article 26 is not meant
to limit the freedom of the States concerned to grant the
right of option to additional categories of persons
concerned.