Nationality in relation to the succession of States
sion, when the predecessor State survives the change
(transfer of part of the territory, separation of part(s) of the
territory). In the latter case, it is possible to distinguish
among at least two main groups of individuals having the
nationality of the predecessor State: persons residing in
the territory affected by the change of sovereignty on the
date of succession of States (a category which comprises
those born therein and those born elsewhere but having
acquired the predecessor’s nationality at birth or by naturalization) and those born in the territory affected by the
change or having another appropriate connection with
such territory, but not residing therein on the date of the
change. Within the last category, a distinction must be
made between those individuals residing in the territory
which remains part of the predecessor State and those
individuals residing in a third State (see article 25).
(9) The delimitation of the categories of persons susceptible of acquiring the nationality of the successor State
is also multifaceted. In the event of total succession, such
as the absorption of one State by another State or the unification of States (art. 21), when the predecessor State or
States respectively cease to exist, all nationals of the predecessor State or States are candidates for the acquisition
of the nationality of the successor State. In the case of the
dissolution of a State, the situation becomes more complicated owing to the fact that two or more successor States
appear and the range of individuals susceptible of acquiring the nationality of each particular successor State has
to be defined separately. It is obvious that there will be
overlaps between the categories of individuals susceptible
of acquiring the nationality of the different successor
States (art. 22). Similar difficulties will arise with the
delimitation of the categories of individuals susceptible of
acquiring the nationality of the successor State in the
event of secession (art. 24) or transfer of a part or parts of
territory (art. 20). This is a function of the complexity of
the situations and the need to respect the will of persons
concerned.
(10) The definition in subparagraph (f) is restricted to
the clearly circumscribed category of persons who had in
fact the nationality of the predecessor State.
Article 3.
Cases of succession of States covered by the
present draft articles
The present draft articles apply only to the effects
of a succession of States occurring in conformity with
international law and, in particular, with the principles of international law embodied in the Charter of
the United Nations.
Commentary
(1) As it already stated in paragraph (1) of the commentary to article 6 of the draft articles on succession of States
in respect of treaties
The Commission in preparing draft articles for the codification of the
rules of international law relating to normal situations naturally assumes that those articles are to apply to facts occurring and situations
established in conformity with international law. Accordingly, it does
not as a rule state that their application is so limited. Only when matters
not in conformity with international law call for specific treatment or
27
mention does it deal with facts or situations not in conformity with
international law.32
Nevertheless, the 1978 and 1983 Vienna Conventions
contain a provision limiting explicitly their scope of
application to successions of States occurring in conformity with international law.33
(2) For purposes of consistency with the approach
adopted in the 1978 and 1983 Vienna Conventions, the
Commission decided to include in the present draft articles the provision in article 3 which is based on the relevant provisions of these instruments, although it is evident that the present draft articles address the question of
the nationality of natural persons in relation to a succession of States which took place in conformity with international law. The Commission considered that it was not
incumbent upon it to study questions of nationality which
could arise in situations such as illegal annexation of
territory.
(3) The Commission stresses that article 3 is without
prejudice to the right of everyone to a nationality in
accordance with article 15 of the Universal Declaration of
Human Rights.34
Article 4.
Prevention of statelessness
States concerned shall take all appropriate measures to prevent persons who, on the date of the succession of States, had the nationality of the predecessor
State from becoming stateless as a result of such
succession.
Commentary
(1) The obligation of the States involved in the succession to take all appropriate measures in order to prevent
the occurrence of statelessness is a corollary of the right
of the persons concerned to a nationality. As has been
stated by experts of the Council of Europe, “there is an
international obligation for the two States to avoid statelessness”;35 this was one of the main premises on which
they based their examination of nationality laws in recent
cases of succession of States in Europe.
(2) The growing awareness among States of the compelling need to fight the plight of statelessness has led to
the adoption, since 1930, of a number of multilateral
treaties relating to this problem, such as the 1930 Hague
Convention, its Protocol relating to a Certain Case of
Statelessness and its Special Protocol concerning Statelessness, as well as the Convention relating to the Status
of Stateless Persons and the Convention on the Reduction
of Statelessness. It is true that only very few provisions of
the above Conventions directly address the issue of
32
Yearbook . . . 1974, vol. II (Part One), p. 181, document A/9610/
Rev.1.
33
See article 6 of the 1978 Vienna Convention and article 3 of the
1983 Vienna Convention.
34
See footnote 25 above.
35
See Report of the experts of the Council of Europe on the
citizenship laws of the Czech Republic and Slovakia and their
implementation (Council of Europe (Strasbourg, 2 April 1996),
document DIR/JUR(96)4), para. 54.