Nationality in relation to the succession of States
of time.78 What constitutes a “reasonable” time limit may
depend upon the circumstances of the succession of
States, but also on the categories to which persons concerned entitled to the right of option belong. In the view
of the Commission, a “reasonable time limit” is a time
limit necessary to ensure an effective exercise of the right
of option.
Article 12.
Unity of a family
Where the acquisition or loss of nationality in relation to the succession of States would impair the unity
of a family, States concerned shall take all appropriate
measures to allow that family to remain together or to
be reunited.
Commentary
(1) There are a number of examples from State practice
of provisions addressing the problem of the common destiny of families upon a succession of States. The general
policy in the treaties concluded after the First World War
was to ensure that the members of a family acquired the
same nationality as the head of the family, whether the latter had acquired it automatically or upon option.79 Article 19 of the Treaty of Peace with Italy, of 1947, on the
contrary, did not envisage the simultaneous acquisition by
a wife of her husband’s nationality following his exercise
of an option. Minor children, however, automatically
acquired the nationality for which the head of the family
had opted.80
(2) The principle of family unity was also highlighted,
albeit in a broader context, in the comment to article 19 of
the Draft Convention on Nationality prepared by Harvard
Law School, where it was stated that “[i]t is desirable in
some measure that members of a family should have the
same nationality, and the principle of family unity is
regarded in many countries as a sufficient basis for the
application of this simple solution”.81
(3) The approach usually followed during the process
of decolonization was to enable a wife to acquire the
78
See Exchange of letters and declarations adopted on 19 March
1962 at the close of the Evian talks, constituting an agreement (Paris
and Rocher Noir, 3 July 1962), United Nations, Treaty Series, vol. 507,
p. 25, at pp. 35 and 37.
79
See the provisions cited in footnote 62 above.
80
Materials on Succession of States . . . (footnote 37 above), p. 59.
81
Research in International Law . . . (footnote 19 above), p. 69. The
main deficiency of provisions envisaging the simultaneous change of
nationality of all the members of a family following the change of the
nationality of the head of the family was the fact that they were placing
the woman in a position of subordination. In an attempt to overcome
this problem, article 4 of the resolution adopted by the Institute of
International Law on 29 September 1896 stipulated that,
“[u]nless the contrary has been expressly reserved at the time of
naturalization, the change of nationality of the father of a family
carries with it that of his wife, if not separated from her, and of his
minor children, saving the right of the wife to recover her former
nationality by a simple declaration, and saving also the right of
option of the children for their former nationality, either in the year
following their majority, or beginning with their emancipation, with
the consent of their legal assistant”
(cited in ibid., p. 75).
35
nationality of her husband upon application, as evidenced
by relevant legal instruments of Barbados, Botswana,
Burma, Guyana, Jamaica, Malawi, Mauritius, Sierra
Leone and Trinidad and Tobago,82 or by various treaty
provisions, such as annex D to the Treaty concerning the
Establishment of the Republic of Cyprus of 16 August
196083 and article 6 of the Treaty of Cession of the
French Establishments of Pondicherry, Karikal, Mahe
and Yanam, between India and France, signed at New
Delhi on 28 May 1956.84
(4) A concern for the preservation of the unity of the
family is also apparent in some national legislations of
successor States that emerged from the recent dissolutions in Eastern and Central Europe.85
(5) The Commission is of the view that the thrust of
article 12 is closely connected to nationality issues in relation to the succession of States, as the problem of family
unity may arise in such a context on a large scale. It also
concludes that, while it is highly desirable to enable members of a family to acquire the same nationality upon a
succession of States, it is not necessary to formulate a
strict rule to this end, as long as the acquisition of different nationalities by the members of a family did not prevent them from remaining together or being reunited.
Accordingly, the obligation set out in article 12 is of a
general nature. For example, whenever a family faces difficulties in living together as a unit as a result of provisions of nationality laws relating to a succession of States,
States concerned are under an obligation to eliminate
such legislative obstacles. The expression “appropriate
measures”, however, is intended to exclude unreasonable
demands of persons concerned in this respect.
(6) Concerning possible different interpretations of the
concept of “family” in various regions of the world, the
Commission is of the view that a succession of States usually involves States from the same region sharing the
same or a similar interpretation of this concept, so that the
said problem would not arise with frequency.
Article 13.
Child born after the succession of States
A child of a person concerned, born after the date
of the succession of States, who has not acquired any
nationality, has the right to the nationality of the State
concerned on whose territory that child was born.
Commentary
(1) Article 13 deals with the problem of children born to
persons concerned after the date of the succession of
States. It follows from its title that the present topic is limited to questions of nationality solely in relation to the
82
Materials on Succession of States . . . (footnote 37 above),
pp. 124-125, 137-138, 145-146, 203-204, 246, 307-308, 353-354, 389390, and 429 respectively.
83
Ibid., pp. 172-178.
84
Ibid., p. 87.
85
For relevant examples, see paragraphs (20) and (21) of the
commentary to draft article 9 proposed by the Special Rapporteur in his
third report (footnote 10 above).