International Law Commission International Law Commission

Last update: June 6, 2016

Summaries of the Work of the International Law Commission

Nationality in relation to the succession of States*

*At its forty-eighth session, in 1996, the Commission decided to proceed under this title, following the completion by the Commission of the preliminary study of the topic “State succession and its impact on the nationality of natural and legal persons”

See also: Analytical Guide | Texts and Instruments

At its forty-fifth session, in 1993, the Commission, on the basis of the recommendation of the Working Group on the long-term programme, decided to include in the Commission’s agenda, subject to the approval of the General Assembly, the topic “State succession and its impact on the nationality of natural and legal persons”.

The General Assembly, by its resolution 48/31 of 9 December 1993, endorsed the above decision of the Commission on the understanding that the final form to be given to the work on the topic would be decided after a preliminary study was presented to the Assembly.

At its forty-sixth session, in 1994, the Commission appointed Václav Mikulka as Special Rapporteur for the topic.

In its resolution 49/51 of 9 December 1994, the General Assembly again endorsed the decision of the Commission on the understanding reflected above and requested the Secretary-General to invite Governments to submit relevant materials including national legislation, decisions of national tribunals and diplomatic and official correspondence relevant to the topic.

At its forty-seventh and forty-eighth sessions, in 1995 and 1996, respectively, the Commission convened a Working Group entrusted with the mandate to identify issues arising out of the topic, categorize those issues which were closely related thereto, give guidance to the Commission as to which issues could be most profitably pursued given contemporary concerns and present the Commission with a calendar of actions.1 In accordance with the Working Group’s conclusions,2 the Commission recommended to the General Assembly that it take note of the completion of the preliminary study of the topic and that it request the Commission to undertake the substantive study of the topic entitled “Nationality in relation to the succession of States”, on the understanding that inter alia:

The General Assembly, in resolution 51/160 of 16 December 1996, endorsed the Commission’s recommendations.

Nationality of natural persons in relation to the succession of States

The Commission proceeded with its work on this part of the topic at its forty-ninth and fifty-first sessions, in 1997 and 1999, respectively, on the basis of the report of the Special Rapporteur,4 information provided by Governments5 and a memorandum by the Secretariat.6

At its forty-ninth session, in 1997, the Commission adopted on first reading a draft preamble and a set of twenty-seven draft articles on nationality of natural persons in relation to the succession of States, with commentaries. In accordance with articles 16 and 21 of its Statute, the Commission decided to transmit them, through the Secretary-General, to Governments for comments and observations.

The General Assembly, in resolution 52/156 of 15 December 1997, drew the attention of Governments to the importance for the Commission of having their views on the draft articles, and urged them to submit their comments and observations in writing.

At its fifty-first session, in 1999, the Commission decided to establish a Working Group to review the text of the draft articles adopted on first reading, taking into account comments and observations by Governments. On the basis of the report of the Chairman of the Working Group,7 the Commission referred the draft preamble and a set of twenty-six draft articles to the Drafting Committee. Having considered the report of the Drafting Committee, the Commission adopted the final draft articles on nationality of natural persons in relation to the succession of States, with commentaries.8 The Commission decided to recommend to the General Assembly the adoption of the draft articles in the form of a declaration.9

The final draft consists of a draft preamble and twenty-six draft articles divided into two parts: Part I General provisions (articles 1–19) and Part II Provisions relating to specific categories of succession of States (articles 20–26). Part II comprises four sections: Section 1 deals with succession in the case of a transfer of part of the territory; Section 2 deals with the case of unification of States; Section 3 deals with dissolution of a State; and Section 4 deals with separation of part or parts of the territory.

By its resolution 54/112 of 9 December 1999, the General Assembly decided to include in the provisional agenda of its fifty-fifth session, in 2000, an item entitled “Nationality of natural persons in relation to the succession of States”, with a view to the consideration of the draft articles and their adoption as a declaration. The General Assembly also invited Governments to submit comments and observations on the question of a convention on nationality of natural persons in relation to the succession of States, with a view to the General Assembly considering the elaboration of such a convention at a future session.

By its resolution 55/153 of 12 December 2000, the Assembly took note of the articles, which were annexed to the resolution, invited Governments to take into account, as appropriate, the provisions contained in the articles in dealing with issues of nationality of natural persons in relation to the succession of States and recommended that all efforts be made for the wide dissemination of the text of the articles. It also decided to include in the provisional agenda of its fifty-ninth session, in 2004, an item entitled “Nationality of natural persons in relation to the succession of States”.

In resolution 59/34 of 2 December 2004, the General Assembly reiterated its invitation to Governments to take into account, as appropriate, the provisions of the articles in dealing with issues of nationality of natural persons in relation to the succession of States. It encouraged the elaboration, at the regional or subregional level, of legal instruments regulating questions of nationality of natural persons in relation to the succession of States, with a view, in particular, to preventing the occurrence of statelessness as a result of a succession of States, and invited Governments to submit comments concerning the advisability of elaborating a legal instrument on the question of nationality of natural persons in relation to the succession of States, including the avoidance of statelessness as a result of a succession of States. The Assembly further decided to include the item in the provisional agenda of its sixty-third session.

Nationality of legal persons in relation to the succession of States

At its fiftieth session, in 1998, the Commission considered the second part of the topic on the basis of the report of the Special Rapporteur.10 On the suggestion of the Special Rapporteur, the Commission established a Working Group to consider the question of the possible orientation to be given to the second part of the topic, in order to facilitate the Commission’s decision on this issue. The Working Group agreed that there were, in principle, two options for enlarging the scope of the study of problems falling within the second part of the topic: either expand the study of the question of the nationality of legal persons beyond the context of the succession of States, or keep the study within the context of the succession of States, but go beyond the problem of nationality to include other questions. The Working Group noted, however, that in the absence of positive comments from States, the Commission would have to conclude that States were not interested in the study of the second part of the topic. The preliminary conclusions of the Working Group were endorsed by the Commission.11

At its fifty-first session, in 1999, taking into account that no positive comments had been received from States with respect to the Commission’s study of the second part of the topic, the Commission recommended to the General Assembly that, with the adoption of the draft articles on nationality of natural persons in relation to the succession of States, the work of the Commission on the topic “Nationality in relation to the succession of States” be considered concluded.12

1 At these sessions, the Commission considered respectively the Special Rapporteur’s first and second reports (documents A/CN.4/467 and A/CN.4/474 and Corr.1 and 2). (see Analytical Guide for individual documents)

2 For the report of the Working Group at the Commission’s forty-seventh session, see document A/CN.4/L.507 reproduced in Yearbook of the International Law Commission, 1995, vol. II (Part Two), annex. For the summary of the oral report to the plenary on the work of the Working Group at the Commission’s forty-eighth session, see Yearbook of the International Law Commission, 1996, vol. II (Part Two), paras. 78–87. (see Analytical Guide for individual documents)

3 See Yearbook of the International Law Commission, 1996, vol. II (Part Two), para. 88.

4 Document A/CN.4/480, Corr.1, Add.1, Add.1/Corr.1 and Add.1/Corr.2. (see Analytical Guide for individual documents)

5 Document A/CN.4/493 and Corr.1. (see Analytical Guide for individual documents)

6 Document A/CN.4/497. (see Analytical Guide for individual documents)

7 Document A/CN.4/L.572. (see Analytical Guide for individual documents)

8 See Yearbook of the International Law Commission, 1999, vol. II (Part Two), paras. 42, 43, 47 and 48.

9 See Yearbook of the International Law Commission, 1999, vol. II (Part Two), para. 44.

10 Document A/CN.4/489 and Corr.1. (see Analytical Guide for individual documents)

11 See Yearbook of the International Law Commission, 1998, vol. II (Part Two), paras. 460–468. For the report of the Working Group, see document A/CN.4/L.557 and Corr.1, and Corr.2. (see Analytical Guide for individual documents)

12 See Yearbook of the International Law Commission, 1999, vol. II (Part Two), para. 45.