Nationality in relation to the succession of States (4) In the view of the Commission, there is a close link between the obligations in article 18 and the right to a nationality in the context of a succession of States embodied in article 1, as the purpose of the former is to ensure that the right to a nationality is an effective right. Article 18 is also based on the general principle of the law of succession of States providing for the settlement of certain questions relating to succession by agreement between States concerned, embodied in the 1983 Vienna Convention. (5) Article 18 does not address the problem which arises when one of the States concerned does not act in conformity with its provisions or when negotiations between States concerned are abortive. Even in such situations, however, there are certain obligations incumbent upon States concerned and the refusal of one party to consult and negotiate does not entail complete freedom of action for the other party. These obligations are included in Part I of the present draft articles. Article 19. Other States 1. Nothing in the present draft articles requires States to treat persons concerned having no effective link with a State concerned as nationals of that State, unless this would result in treating those persons as if they were stateless. 2. Nothing in the present draft articles precludes States from treating persons concerned, who have become stateless as a result of the succession of States, as nationals of the State concerned whose nationality they would be entitled to acquire or retain, if such treatment is beneficial to those persons. (2) The need to “draw a distinction between a nationality link that is opposable to other sovereign States and one that is not, notwithstanding its validity within the sphere of jurisdiction of the State [in question]”100 has led to the development of the theory of effective nationality.101 As regards the specific situation of a succession of States, it is also widely accepted that [t]here must be a sufficient link between the successor State and the persons it claims as its nationals in virtue of the succession, and the sufficiency of the link might be tested if the successor State attempted to exercise a jurisdiction over those persons in circumstances disapproved of by international law, or attempted to represent them diplomatically; provided, that is, there is some State competent to protest on behalf of the persons concerned.102 (3) A number of writers103 on the topic of the succession of States who hold the above view that the successor State may be limited in its discretion to extend its nationality to persons who lack an effective link with the territory concerned base their argument on the decision of ICJ in the Nottebohm case.104 In its judgment, the Court indicated some elements on which an effective nationality can be based. As the Court said, [d]ifferent factors are [to be] taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.105 It is to be noted, however, that the Italian-United States Conciliation Commission, in the Flegenheimer case, concluded that it was not in its power to deny the effects at the international level of a nationality conferred by a State, even without the support of effectivity, except in 100 Rezek, loc. cit. (footnote 27 above), p. 357. See Brownlie, Principles of Public International Law (footnote 44 above), pp. 397 et seq.; H. F. van Panhuys, The Role of Nationality in International Law (Leiden, Sijthoff, 1959), pp. 73 et seq.; P. Weis, Nationality and Statelessness in International Law, 2nd ed. (Germantown, Maryland, Sijthoff-Noordhoff, 1979), pp. 197 et seq.; de Burlet, “De l’importance . . . (footnote 99 above), pp. 323 et seq. For Rousseau, the theory of effective nationality is “a specific aspect of the more general theory of effective legal status in international law” (op. cit. (footnote 70 above), p. 112). 102 O’Connell, State Succession in Municipal Law . . . (footnote 43 above), p. 499. 103 See, for example, R. Donner, The Regulation of Nationality in International Law, 2nd ed. (Irvington-on-Hudson, New York, Transnational Publishers, 1994), p. 260; O’Connell, State Succession in Municipal Law . . . (footnote 43 above), p. 510; and K. Zemanek, “State succession after decolonization”, in Recueil des cours . . . , 1965-III (Leiden, Sijthoff, 1965), vol. 116, p. 272. 104 According to the Court, “a State cannot claim that the rules [pertaining to the acquisition of its nationality that] it has laid down are entitled to recognition by another State unless it has acted in conformity with this general aim of making the legal bond of nationality accord with the individual’s genuine connection with the State which assumes the defence of its citizens by means of protection as against other States” (Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955, p. 4, at p. 23). 105 Ibid., p. 22. The Court’s judgment admittedly elicited some criticism. It has been argued, in particular, that the Court had transferred the requirement of an effective connection from the context of dual nationality to a situation involving only one nationality and that a person who had only one nationality should not be regarded as disentitled to rely on it against another State because he or she had no effective link with the State of nationality but only with a third State. 101 Commentary (1) Paragraph 1 safeguards the right of States other than the State which has attributed its nationality not to give effect to a nationality attributed by a State concerned in disregard of the requirement of an effective link. International law cannot, on its own, invalidate or correct the effects of national legislation on the nationality of individuals, but it allows “some control of exorbitant attributions by States of their nationality, by depriving them of much of their international effect”, because “the determination by each State of the grant of its own nationality is not necessarily to be accepted internationally without question”.98 In the final analysis, although nationality pertains essentially to the internal law of States, the general principles of the international law of nationality constitute limits to the discretionary power of States.99 98 Oppenheim’s International Law (footnote 18 above), p. 853. It is within this meaning that part of the doctrine refers to the negative role of international law in matters of nationality. See Rezek, loc. cit. (footnote 27 above), p. 371; P. Lagarde, La nationalité française (Paris, Dalloz, 1975), p. 11; J. de Burlet, “De l’importance d’un ‘droit international coutumier de la nationalité”’, Revue critique de droit international privé (Paris, Sirey, 1978), vol. 67, No. 2, pp. 304327. See also paragraph (4) of the commentary to the preamble above. 99 39