Nationality in relation to the succession of States SECTION 3. DISSOLUTION OF A STATE Article 22. Attribution of the nationality of the successor States When a State dissolves and ceases to exist and the various parts of the territory of the predecessor State form two or more successor States, each successor State shall, unless otherwise indicated by the exercise of a right of option, attribute its nationality to: (a) Persons concerned having their habitual residence in its territory; and (b) Subject to the provisions of article 8: (b) I(i) Persons concerned not covered by subparagraph (a) having an appropriate legal connection with a constituent unit of the predecessor State that has become part of that successor State; (b) (ii) Persons concerned not entitled to a nationality of any State concerned under subparagraphs (a) and (b) (i) having their habitual residence in a third State, who were born in or, before leaving the predecessor State, had their last habitual residence in what has become the territory of that successor State or having any other appropriate connection with that successor State. Article 23. Granting of the right of option by the successor States 1. Successor States shall grant a right of option to persons concerned covered by the provisions of article 22 who are qualified to acquire the nationality of two or more successor States. 2. Each successor State shall grant a right to opt for its nationality to persons concerned who are not covered by the provisions of article 22. Commentary (1) Section 3 consists of two articles, articles 22 and 23, and applies to the case of a dissolution of States, as distinguished from the case of separation of part or parts of the territory, the latter being the object of section 4. Although it may not always be easy in practice to clearly differentiate between those two situations, such distinction is necessary. When a State disappears by dissolution, its nationality also disappears, while in the case of separation of part of the territory, the predecessor State continues to exist and so does its nationality. 125 125 For comparable reasons, the Commission also distinguished between “dissolution” and “secession” when it dealt with the question of succession of States in respect of matters other than treaties. See Yearbook . . . 1981, vol. II (Part Two), p. 45, document A/36/10, paragraph (3) of the commentary to draft articles 16 and 17 of the draft articles on succession of States in respect of State property, archives and debts. 43 (2) The substantive rules embodied in articles 22 and 23 apply mutatis mutandis when the various parts of the predecessor State’s territory do not become independent States following the dissolution, but are incorporated into other, pre-existing, States. In such case, the obligations spelled out in articles 22 and 23 would become incumbent upon those States. (3) As the loss of the nationality of the predecessor State is an automatic consequence of dissolution, the issues to be addressed in section 3 are the attribution of the nationality of the successor States to persons concerned and the granting of the right of option to certain categories of persons concerned. (4) The core body of nationals of each successor State is defined in article 22, subparagraph (a), by reference to the criterion of habitual residence, which is consistent with the presumption in article 4. This criterion, widely accepted by publicists,126 was used on a large scale, in particular, to resolve the issue of attribution of nationality after the dissolution of the Austro-Hungarian Monarchy.127 (5) In the cases of the dissolutions of Yugoslavia and Czechoslovakia, some successor States used the criterion of the “citizenship” of the republics constituting the federation128 as the main criterion for determining their nationals, irrespective of their place of habitual residence.129 Consequently, some nationals of the predeces126 See Onuma, loc. cit. (footnote 113 above), note 5 referring to various scholars. 127 The effects on nationality of the dismemberment of the AustroHungarian Monarchy, involving also the dissolution of the core of the dualist Monarchy, were regulated in a relatively uniform manner. Article 64 of the Treaty of Saint-Germain-en-Laye provided that “Austria admits and declares to be Austrian nationals ipso facto and without the requirement of any formality all persons possessing at the date of the coming into force of the present Treaty rights of citizenship (pertinenza) within Austrian territory who are not nationals of any other State” (Laws concerning nationality (footnote 47 above), p. 586). Similar provisions are contained in article 56 of the Peace Treaty of Trianon concerning the acquisition of Hungarian nationality. Concerning the ambiguities of the concept of pertinenza, see footnote 107 above. 128 As pointed out by Rezek, “there are federations where the federal nationality coexists with a provincial allegiance and the (federal) State is sometimes authorized to legislate on this matter. . . . The federal nationality would not appear as a consequence of the nationality of the (federal) State, established according to the rules laid down by the various provincial legislatures” (loc. cit. (footnote 27 above), pp. 342-343). 129 See article 39 of the Law on Citizenship of the Republic of Slovenia, of 5 June 1991, Uradni list Republike Slovenije (Official Gazette of the Republic of Slovenia), No. 1/1991 (English translation of “Law on the Republic of Slovenia Citizenship, of June 5, 1991” (release 27, November 1994), in Central and Eastern European Legal Materials (Huntington, New York, Juris Publishing, 1997), Binder 5A); articles 35 and 37 of the Law on Croatian Citizenship of 26 June 1991 (footnote 46 above); article 46 of the Yugoslav Citizenship Law (No. 33/96) (footnote 39 above); article 1 of Law No. 40/1993 of 29 December 1992 on the acquisition and loss of citizenship of the Czech Republic (Report of the experts of the Council of Europe . . . (footnote 35 above), appendix IV); article 2 of the Law on State Citizenship in the Slovak Republic, of 19 January 1993 (No. 40/1993) (footnote 67 above); article 26, paragraph 1, of the Act on Citizenship (Continued on next page.)