Articles on Nationality of Natural Persons in Relation to the Succession of States
1999
  • Introductory Note
  • Procedural History
  • Documents
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By Václav Mikulka
Former member and Special Rapporteur on
Nationality in relation to the Succession of States
International Law Commission
Former Director
Codification Division
United Nations Office of Legal Affairs


EnglishEnglish

General view of the opening session of the Millennium Summit The Articles on Nationality of Natural Persons in relation to the Succession of States (hereinafter “the Articles”) adopted by the International Law Commission (hereinafter “the Commission”) at its fifty-first session in 1999, which were later annexed to General Assembly resolution 55/153 of 12 December 2000, are the outcome of the work of the Commission on a question initially entitled “State succession and its impact on the nationality of natural and legal persons” (for the text of Articles with commentaries, see Report of the International Law Commission on the work of its fifty-first session). The topic was inscribed on the Commission’s agenda in 1993 in reaction to a new wave of succession of States in Eastern Europe, which raised concerns among the international community over the impact of this development on the condition of the populations in this region and, in particular, over the risk of the occurrence of statelessness. (For a review of activities showing growing interest of the United Nations High Commissioner for Refugees in the problem of statelessness resulting from a succession of States, see C. A. Batchelor, “UNHCR and issues related to nationality”; addendum to the report of the United Nations High Commissioner for Refugees (A/50/12/Add.1), para. 20; report of the Subcommittee of the Whole on International Protection (A/AC.96/858), paras. 21–27, as well as General Assembly resolution 51/75 of 12 February 1997. Concerning activities of the European Commission for Democracy through Law (Venice Commission), an organ of the Council of Europe, which adopted, in September 1996, the Declaration on the consequences of State succession for the nationality of natural persons.)

The Articles have to be understood in the context of a broader and more complex matrix of legal issues that the Commission inscribed on its 1949 list of fourteen possible subjects suitable for progressive development and codification. The list included two questions, namely that of “Nationality, including statelessness” and that of “Succession of States and governments”. Both areas have later been studied, and the work on them resulted in the adoption of three treaty instruments focusing on the central and most prominent issues in these two areas (Convention on the Reduction of Statelessness, 1961; Vienna Convention on Succession of States in respect of Treaties, 1978; and Vienna Convention on Succession of States in respect of State Property, Archives and Debts, 1983). The original scheme of the question of succession of States included the problem of nationality as an element of the “Status of the inhabitants”, which was supposed to be considered as part of the topic “Succession in respect of matters other than treaties”. The scope of this topic was later narrowed down to the economic aspects of succession. Consequently, nationality was not included therein.

The Articles address the issues which are at the intersection of these two major themes that were not addressed in previous undertakings (article 10 of the 1961 Convention on the Reduction of Statelessness deals only with a partial problem of statelessness in relation to territorial cessions). In its work on the draft articles, the Commission built upon its previous work in both areas by maintaining consistency in a conceptual approach to the phenomenon of succession of States and by putting accent on avoidance of statelessness and human rights dimension of nationality.

In most of the issues previously addressed in relation to the succession of States, the subject matter was international legal relations (treaties, debts, loans, etc.), and the goal was to ascertain whether the successor State can replace the predecessor State in these or some of these international legal relations. Unlike treaties or debts, which are international legal relations between States, nationality is a legal bond between the individual and the State. Moreover, by its very nature it is linked to one of the constitutive elements of the State itself, namely its population. When considering the impact of succession of States on nationality of the inhabitants of the territory affected by the change of sovereignty, no analogy with the consequences of such a change on treaties or international debts can therefore be assumed.

As already mentioned, the 1993 decision originally envisaged a range of questions encompassing nationality of both physical and legal person. Following the consideration of the second report of the Special Rapporteur, the Commission decided to limit its study to the problem of nationality of physical persons, without prejudice to a later decision on whether to proceed also with the question of legal persons. The perspectives of such a study were analyzed in the fourth report of the Special Rapporteur. (Following the consideration of the fourth report of the Special Rapporteur and recommendation of its Working Group, the Commission identified two options for the approach to the problem of legal persons: (a) to expend the study of nationality of legal persons beyond the context of the succession of States or (b) to remain in the context of the succession of States but to enlarge the scope of issues concerning legal persons beyond the problem of their nationality). In 1999, the Commission relinquished the question of legal persons in view of the absence of comments from States, which it understood as their lack of interest in this matter and advised the General Assembly accordingly.

Nationality is governed essentially by internal law, including in cases of change of nationality resulting from a succession of States, often termed “collective naturalizations”. The States, however, are not entirely free in regulating matters of nationality and must act within the limitations imposed by international law. International law intervenes through both customary and conventional rules.

There are two types of limitations imposed on States by international law. The first relates to the delimitation of competence between States. Non-compliance with these rules by a State when attributing its nationality entails the non-opposability of the nationality towards other States. The most significant consequence of this is the inability of the State to exercise diplomatic protection. The second type of limitation concerns obligations relating to the protection of human rights. Non-observance by a State entails international responsibility. The obligations of States in the field of the protection of human rights put into question in particular legislative criteria leading to discrimination or statelessness.

The basis for the work of the Commission on the draft articles was the Special Rapporteur’s third report, which contained the complete set of draft articles including a draft preamble. The Commission completed the first reading and adopted the entire set of draft articles and preamble together with commentaries during one session (1997). Benefiting from the comments made the same year in the Sixth Committee of the United Nations General Assembly (hereinafter “the Sixth Committee”), the written comments of governments submitted a year later and the Memorandum by the Secretariat, the Commission completed the second reading of the draft articles at its 1999 session and recommended to the General Assembly their adoption in the form of a draft declaration to be adopted by the General Assembly.

The final text consists of a preamble and twenty-six 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), namely, transfer of part of the territory, unification of States, dissolution of a State and separation of part or parts of the territory. The typology follows that of the 1983 Vienna Convention on the Succession of States in respect of State Property, Archives, and Debt. (The 1983 Vienna Convention provides separately for the case of dissolution of a State (where the predecessor State ceases to exist) and that of separation of part or parts of territory (secession) in which case the predecessor State continues to exist on a reduced territory). Concerning nationality, making distinction between these two categories is important, because in case of dissolution, the nationality of the predecessor State disappears together with it, while in case of the secession, the problem of the acquisition of the nationality of the successor State and loss of the nationality of the predecessor State concerns only part of the population. The 1978 Vienna Convention on Succession of States in respect of Treaties deals with situations of dissolution and secession in the same place, because it provides for the same rule for both of them, namely, the automatic continuation of treaties.) The articles, however, do not deal with problems of nationality in situations of creation of new States resulting from the process of decolonization (“Newly independent States”, i.e. States established on territories previously administered by colonial powers, are in the 1978 and 1983 Vienna Conventions treated as a category per se). For the purpose of the elaboration of the provisions in Part I, the Commission took into account the practice of States during the process of decolonization, but it did not include a separate section on “Newly independent States” in Part II as it believed that one of the four sections of that part would be applicable, mutatis mutandis, in any case of decolonization in the future (paragraph (3) of the commentary to the draft preamble).

The basic premises of the Articles are announced in article 1 on the right to a nationality and in article 4 on the prevention of statelessness. These two provisions are a source from which other provisions are derived and at the same time represent a framework within which other articles operate. The rule according to which “every individual who, on the date of the succession of States, had the nationality of the predecessor State […] has the right to the nationality of at least one of the States concerned, in accordance with the present articles” is coupled with the obligation of these States “[to] take all appropriate measures to prevent [these persons] from becoming stateless as a result of such succession.”

The problem of identifying “at least one of the States concerned” which would have an “obligation” to grant or retain its nationality, matching the “right to a nationality” under article 5, is in the first place a problem of delimitation of competencies of the States concerned. According to a generally accepted view, “It is the municipal law of the predecessor State which is to determine which persons have lost their nationality as a result of the change; it is that of the successor State which is to determine which persons have acquired its nationality” (D. P. O’Connell, State Succession in Municipal Law and International Law). The divergence of legislative techniques used by these States may, however, lead to situations where some persons may become stateless. Another possibility is that some persons may end up with dual nationality. Only the first situation is a matter of concern addressed by the Articles with a view to avoiding statelessness. The Articles do not prejudice any question of possible occurrence of dual nationality as a consequence of the succession of States, and do not limit in any way the freedom of States concerned to adopt the policy of their choice on this matter.

Taking as a point of departure paragraph 1 of article 15 of the Universal Declaration of Human Rights (hereinafter as “the Universal Declaration”), which recognizes the right to a nationality as a human right, the Articles aim to give this right a concrete meaning in the context of succession of States. It should be recalled, that unlike article 15 of the Universal Declaration, which is a provision of unlimited application, the personal scope of application of the Articles is limited to persons who prior to the date of the succession had a nationality of the predecessor State. The Articles do not apply to stateless persons present in the territory affected by the succession of States at the time of this succession. Accordingly, in respect of persons who at the time of succession of States were nationals of the predecessor State, paragraph 2 of article 15 of the Universal Declaration, according to which, “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”, is also of particular relevance.

In most cases, the criteria commonly used for the attribution of nationality will point decisively to the State which should grant its nationality to the person concerned. In some cases, however, a State, while having the competence to grant its nationality, may not have an obligation to do so. If the successor State decides not to use its competence to attribute its nationality to the full extent, some groups of persons who lost the nationality of the predecessor State may become stateless. These observations apply, mutatis mutandis, also to the competence of the predecessor State to withdraw its nationality from certain categories of persons as a consequence of succession of States.

Various aspects of these problems are addressed throughout the Articles, in particular with a view to suggesting to States to exercise their competence in a manner avoiding a risk of generating statelessness.

Concerning the attribution of nationality, article 5 announces the presumption of nationality on the basis of habitual residence. It is inspired by frequent use of this criterion in the practice of successor States as evidenced by a number of historical examples. It could also be considered as guidance to third States for their treatment of the persons concerned during a period of uncertainty, pending the issuance of relevant legislation by the States concerned, or in the absence of a proof of nationality to be provided by the persons concerned.

It should be stressed, however, that the presumption of nationality announced in article 5 cannot be confused with the effective holding of such nationality. As rightly pointed out by O’Connell, “It would be fallacious to assume that, because international law permissively ascribes certain individuals to successor States in virtue of a change of sovereignty, these automatically become nationals in the eyes of municipal law, for the most international law can do is to approve or disapprove of a claim by successor States to bring individuals within their plenary jurisdiction, or of a claim to represent them in diplomatic matters”.

Unlike article 5 which establishes the presumption of nationality of persons who have their habitual residence in the territory of the successor State, article 8 addresses the situation where the persons concerned have their habitual residence in another State. It focuses on the attribution of nationality to these persons by the successor State with the goal of preventing statelessness. In applying ius sanguinis or ius soli principle (or a combination thereof) for the attribution of its nationality, the successor State may, and usually does, attribute its nationality to persons meeting such criteria even if they have their habitual residence in another State. The purpose of the first paragraph of article 8 is to clarify that, while having a competence to do so, the successor State is not obliged to attribute its nationality to these persons, if they have the nationality of the State of their habitual residence or even of another State. Paragraph 2 further clarifies that, in attributing its nationality to such persons, the successor State should respect the will of these persons, namely not to impose its nationality on them against their will. The article does not prescribe any particular means by which these persons should renounce the nationality of the successor State. The possibility to renounce this nationality, however, is not recognized in cases where these persons do not have any other nationality and, as a result of such renunciation, would therefore become stateless.  

It is worth noting that the term “other State” used in article 8 encompasses any State which in relation to the succession of States in question is a “third State”, but also the predecessor State (if it continues to exist), or another successor State (in the situation of dissolution or secession of more than one State). In this regard, paragraph 1 may assist States affected by the succession in delimiting their respective competencies as far as attribution of nationality is concerned.

Generally speaking, the Articles do not prescribe a specific mode of attribution of nationality to be used by the successor State. Nevertheless, assuming that the use of certain criteria or conditions may, even if only temporarily, lead to statelessness, the Articles point to these situations and recommend solutions. See e.g. article 9 on Renunciation of the nationality of another State as a condition for attribution of nationality or article 7 on Effective date of the acquisition of nationality.

As recognized in the Preamble, in matters concerning nationality, “due account should be taken both of the legitimate interests of States and those of individuals”. In this regard, the important element of the problem is the role to be reserved, in various situations, to the will of individuals. These issues are addressed in the first place in article 11, which deals, in particular, with the right of option. The right of option has a role to play in resolving problems of attribution of nationality to persons falling within an area of overlapping competences of States concerned. Other aspects of the respect for the will of individuals are addressed in some other articles of Part I, such as those already discussed in paragraph 2 of article 8. The role of the will of persons concerned is further specified in Part II, in the context of different categories of succession of States.

For a proper understanding of all these provisions, it should be recalled that requesting the respect for the will of the individual in connection with the attribution of nationality upon a succession of States does not mean that such attribution can happen only on a consensual basis. Even the term “option”, as used in the Articles, does not always imply a choice between nationalities. Both “will” and “option” are used in a broader sense. They include use of different means, such as “opting in”, i.e. the voluntary acquisition of nationality by declaration, and “opting out”, i.e. the renunciation of a nationality acquired, ex lege. Such right of option may be provided under national legislation but also agreed between the States concerned in a treaty.

It also has to be understood that the respect for the will of the persons concerned does not affect the right of a State to withdraw its nationality from persons who voluntarily acquire the nationality of another State. This aspect is addressed in article 10. Conversely, a State granting its nationality to a person having the nationality of another State may make the attribution of its nationality conditional on the renunciation by such person of the nationality of the latter State, as provided in article 9.

The effective realization of the right of an individual to nationality in many cases depends on the responsiveness of the States concerned. Their obligations towards the persons affected by a succession of States are therefore further specified in a number of articles.

In view of the fact that the acquisition or loss of nationality is essentially governed by internal law, article 6 focuses on the importance of timely enactment of “legislation on nationality and other connected issues arising in relation to the succession of States”. It requires that persons concerned are apprised of the effect of such legislation on their nationality and any choices they may have thereunder, including the consequences of their “exercise”.

As far as the exercise of their right to retain or acquire the nationality or to exercise their right of option is concerned, article 15 prohibits discrimination on any grounds; article 16 prohibits arbitrary decisions on these issues; while article 17 deals with the timeliness of decisions and the availability of an effective administrative or judicial review. These articles incorporate contemporary standards of human rights protection.

In the same vein, some articles address issues not falling directly under the theme of “nationality” but still represent related problems that persons affected by the succession of States are confronted with.  Thus, article 12 focuses on unity of family. The interest in keeping families together is an important aspect to take into account should the strict application of formal criteria lead to separation of families. Similarly, article 13 entitled “Child born after the succession of States” aims at ensuring that such a child does not become stateless as a consequence of uncertainty surrounding the nationality of the parents. This article incorporates into the context of the succession of States an obligation already established under other instruments (for example, principle 3 of the Declaration of the Rights of the Child; article 24, paragraph 3, of the International Covenant on Civil and Political Rights; article 7, paragraph 1, of the Convention on the Rights of the Child). Serious problems may arise also in situations where persons concerned who have their habitual residence in the territory which becomes that of the successor State do not acquire the nationality of this State. The succession should not adversely affect their right to retain their habitual residence in the successor State. This problem is addressed in article 14 on status of habitual residents.

While the main focus of the Articles is on the States concerned (predecessor State and successor State or States), article 19 deals with States which are third States in relation to the particular case of succession of States. Paragraph 1 incorporates, in this context, the “non-opposability” rule: the Articles do not require States to treat persons 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. In cases where, as a consequence of succession of States, some persons do become stateless, paragraph 2 underscores the discretion that third States may use within their jurisdiction, when dealing with such persons. It provides that nothing in the Articles prevents these States from treating these persons as nationals of the State whose nationality they would be entitled to acquire or retain, if such treatment is beneficial to those persons.

The provisions of Part II are divided into four sections devoted to the specific categories of succession of States mentioned above. The rules governing the attribution of nationality of the successor State or, as the case may be, the withdrawal of the nationality of the predecessor State from persons concerned, as well as the recognition of a right of option, are derived from an abundant State practice, prevailingly based on the criterion of habitual residence. For most of the population concerned, the application of this criterion leads to the same result as the application of the criterion of ius soli or ius sanguinis, which in most national legislation is combined in order to complement each other and close the gaps. These two criteria are significant for the determination of the nationality of persons concerned who have their habitual residence outside the territory of a successor State.

The General Assembly considered draft articles on Nationality of natural persons in relation to the succession of States first in 1999, in the context of the item “Report of the International Law Commission”, and in 2000, 2004, 2008 and 2011 under the item “Nationality of natural persons in relation to the succession of States.” Initially, this consideration was supposed to be “with a view to the consideration of the draft articles and their adoption as a declaration” (General Assembly resolution 54/112 of 9 December 1999). However, the General Assembly also invited States “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.” This echoed the divided views of the governments on the final form to be given to the draft articles, which was already apparent in their comments after the completion of the first reading of the draft and turned into increasingly agonizing debates about this issue.

It should be recalled that when evaluating the discussion in the Commission on his first report, the Special Rapporteur stressed that if the Commission wished to lay down general principles for submission to States, a declaration would be the appropriate instrument, whereas if it concentrated on a specific area, such as statelessness, it could contemplate an amendment or optional protocol to the Convention on the Reduction of Statelessness. Both ideas found some advocates in the Sixth Committee, without any of them being able to gain general support. (Other ideas included drafting of model clauses or drafting of a comprehensive convention on the matter.)

In their reactions, summarized in the 1999 Memorandum by the Secretariat, States that favoured the form of a declaration argued that such declaration: (a) would provide a more rapid, yet authoritative, response to the need for clear guidelines on the subject without precluding the subsequent elaboration of a convention; (b) could address a broader spectrum of issues than a convention establishing strict obligations for States; and (c) if adopted by consensus, might have greater authority than a convention ratified by a small number of States (para. 14 of the Memorandum).

By contrast, the need for a treaty form was invoked by States whose interests and goals varied. Some had in mind the traditional form in which the process of progressive development of international law took place, which they considered desirable also in this case. Other States, however, seemed to be concerned rather with the fact that while any change of the rules on nationality would require treaty form, “the rules enunciated in the draft declaration would be likely to have legal effects even though they were not treaty rules” (Comments and observations received from international organizations, comments by France). The process of treaty negotiation, in their view, would provide States with an opportunity to change the provisions of the draft that they were not ready to accept.

In 2000, the Sixth Committee, having failed to reach consensus on the adoption of the declaration anticipated in the 1999 resolution, recommended instead to the General Assembly to take note of the Articles and to annex the text to its resolution. There was no such precedent in the practice of the General Assembly concerning the final outcome of the work of the Commission. The Assembly, acting upon this recommendation, took note of the Articles and annexed them to its resolution 55/153 of 12 December 2000. (This practice became later a routine in dealing with the final products of Commission’s work.)

By the same resolution, it 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, which it reiterated in its future resolutions on this item (General Assembly resolution 59/34 of 2 December 2004, General Assembly resolution 63/118 of 11 December 2008 and General Assembly resolution 66/92 of 9 December 2011, in which the General Assembly also emphasized the value of the articles in providing guidance to the States dealing with issues of nationality of natural persons in relation to the succession of States, in particular concerning the avoidance of statelessness). It also recommended that all efforts be made for the wide dissemination of the text of the Articles.

In its resolutions 59/34 and 63/118, adopted in 2004 and 2008 respectively, the General Assembly furthermore (a) encouraged States to consider, at the regional or subregional levels, the elaboration 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, and (b) 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.

In 2011, the General Assembly decided to discontinue the consideration of this item, using the phrase that “[…] upon the request of any State, it will revert to the question of nationality of natural persons in relation to the succession of States at an appropriate time, in the light of the development of State practice in these matters.”

The Articles undoubtedly inspired the preparation of at least one regional legal instrument, namely the 2006 Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession (hereinafter “the 2006 Convention”). The Convention primarily builds upon the 1997 European Convention on Nationality (hereinafter “the 1997 Convention”), namely on its chapter VI. (Chapter VI of the 1997 Convention contains some general provisions related to nationality applicable in situations of State succession (articles 18 – 20)). It does not set the standards to be applied by States for the attribution of their nationality – such standards are instead to be found in the 1997 Convention, in particular, in its article 18. The 2006 Convention adds to these standards by developing more detailed rules to be applied by States in the context of State succession with a view to preventing, or at least reducing, cases of statelessness which could arise from such situations where “a large number of persons are at risk of losing their nationality without acquiring another nationality and in consequence becoming stateless”.

The Preamble of the 2006 Convention refers to the Articles. However, the consonance between the two instruments is apparent, in particular, from a number of key provisions of the Convention, such as those concerning the right to a nationality (article 2), prevention of statelessness (article 3), non-discrimination (article 4) and respect for the expressed will of the person concerned (article 7). Similarly to the Articles, the Convention specifies a number of procedural conditions on which the effective realization of the right to nationality depends, such as those concerning the access of persons concerned to information about the rules and procedures with regard to the acquisition of nationality (article 11), procedural guaranties (article 12), or requirements of proof necessary for the granting of nationality. The criteria for the obligation of the successor State to grant its nationality to specific categories of persons and those limiting the predecessor’s competence to withdraw its nationality from certain categories of persons (article 5 and article 6) are formulated without distinguishing between various categories of succession. This approach, however, aims at achieving the same goal as the provisions of Part II of the Articles, namely excluding legislative measures which could cause statelessness of any group of persons affected by the succession of States.

The example of the 2006 Convention is instructive also in some other respects. The Convention is open for signature (and subsequent ratification) by the member States of the Council of Europe and by the non-member States which participated in its elaboration, and for accession by other non-member States (article 18 – Signature and entry into force and article 19 – Accession). However, as at the beginning of 2020, the status of its ratifications is not impressive (treaty parties are: Austria, Hungary, Luxembourg, Montenegro, Netherlands, Norway, Moldova; signatories: Germany and Ukraine). Surprisingly, the States which had called for the opening of treaty negotiations based on the Articles during the discussions in the Sixth Committee of the General Assembly have not become parties to the Convention. Despite the assertion that “the avoidance of statelessness is one of the major preoccupations of the international community”, it seems that States are hesitant to enter into clear legal obligations aimed at the solution of this very problem.

Except for the 2006 Council of Europe Convention, the invitation by the General Assembly addressed to States to consider, at the regional or subregional levels, the elaboration of legal instruments regulating questions of nationality of natural persons in relation to the succession of States has not found any other positive response.

In view of this lesson learned, some two decades after the completion of the Commission’s work on the Articles, one can only regret that the Sixth Committee of the General Assembly did not give a more in-depth consideration to the advantages that a declaration on this matter would have offered in a situation in which the problem of statelessness resulting from then recent successions of States was acute. Because the phenomenon of succession of States is inherent to the development of the international community at any historical period, it will reoccur even in the future, and the problems accompanying collective naturalizations, including the risk of large scale statelessness, will also reappear.

As one of the most respected authors in the field of State succession observed, “the effect of change of sovereignty upon the nationality of the inhabitants … is one of the most difficult problems in the law of State succession”. Yet, the same author opined as early as in 1956 that “upon this subject, perhaps more than any other in the law of State succession, codification, or international legislation, is urgently demanded.” (D.P. O’Connell, The Law of State Succession). Appraising the outcome of the consideration of the Articles in the Sixth Committee of the General Assembly, we can only conclude with regret that the opportunity to make a step forward, however modest (a declaration), which would be in line with the commitment of the General Assembly to “initiate studies and make recommendations for the purpose of […] progressive development of the international law and its codification” (article 13, para. 1), in this particular field has been missed.


Related Material

A. Legal Instruments

Universal Declaration of Human Rights, Paris, 10 December 1948.

Convention on the Reduction of Statelessness, New York, 30 August 1961, United Nations, Treaty Series, vol. 989, p. 175.

International Covenant on Civil and Political Rights, New York, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

Vienna Convention on Succession of States in Respect of Treaties, Vienna, 23 August 1978, United Nations, Treaty Series, vol. 1946, p. 3.

Vienna Convention on Succession of States in respect of State Property, Archives and Debts, Vienna, 8 April 1983.

Convention on the Rights of the Child, New York, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.

European Convention on Nationality, Strasbourg, 6 November 1997, European Treaty Series, no. 166.

Declaration on the consequences of State succession for the nationality of natural persons, Venice, 10 February 1997, Council of Europe.

Convention on the avoidance of statelessness in relation to State succession, Strasbourg, 19 May 2006, European Treaty Series, no. 200.


B. Documents

General Assembly resolution 1386(XIV) of 20 November 1959 (Declaration of the Rights of the Child).

First Report on Succession of States in respect of rights and duties resulting from sources other than treaties by Mr. Mohammed Bedjaoui, Special Rapporteur, 5 April 1968 (A/CN.4/204, reproduced in Yearbook of the International Law Commission, 1968, vol. II).

Report of the International Law Commission on the work of its twentieth session, 27 May to 2 August 1968 (A/7209/REV.1, reproduced in Yearbook of the International Law Commission, 1968, vol. II).

United Nations Conference on Succession of States in Respect of State Property, Archives and Debts, Official Records, 1 March to 8 April 1983 (A/CONF.117/16/Add.1).

First report on State succession and its impact on the nationality of natural and legal persons, by Mr. Václav Mikulka, Special Rapporteur, 17 April 1995 (A/CN.4/467, reproduced in Yearbook of the International Law Commission, 1995, vol. II (1)).

Report of the Subcommittee of the Whole on International Protection (A/AC.96/858, 17 October 1995).

Addendum to the Report of the United Nations High Commissioner for Refugees, Official Records of the General Assembly, Fiftieth Session, Supplement No. 12 A (A/50/12/Add.1).

Second report on State Succession and its impact on the nationality of natural and legal persons, by Mr. Václav Mikulka, Special Rapporteur, 17 April 1996 (A/CN.4/474, reproduced in Yearbook of the International Law Commission, 1996, vol. II(1)).

General Assembly resolution 51/75 of 12 February 1997 (Office of the United Nations High Commissioner for Refugees).

Third report on nationality in relation to the succession of States, by Mr. Václav Mikulka, Special Rapporteur, 27 and 28 February 1997 (A/CN.4/480, reproduced in Yearbook of the International Law Commission, 1997, vol. II(1)).

Fourth Report on Nationality in relation to the Succession of States, by Mr. Václav Mikulka, Special Rapporteur, 23 April 1998 (A/CN.4/489, reproduced in Yearbook of the International Law Commission, 1998, vol. II(1)).

Report of the International Law Commission on the work of its fiftieth session, 20 April to 12 June and 27 July to 14 August 1998 (A/53/10, reproduced in Yearbook of the International Law Commission, 1998, vol. II(2)).  

Comments and observations received from international organizations (A/CN.4/493, 4 December 1998).

Nationality in relation to the succession of States, Memorandum by the Secretariat, 8 March 1999, (A/CN.4/497, reproduced in Yearbook of the International Law Commission, 1999, vol. II (1)).

Report of the International Law Commission on the work of its fifty-first session, 3 May to 23 July 1999 (A/53/10, reproduced in Yearbook of the International Law Commission, 1999, vol. II (2)).

Report of the Chairman of the Working Group on Nationality in relation to the Succession of States (A/CN.4/L.572, 12 May 1999).

General Assembly resolution 54/112 of 9 December 1999 (Nationality of natural persons in relation to the succession of States).

General Assembly resolution 55/153 of 12 December 2000 (Nationality of natural persons in relation to the succession of States).

General Assembly resolution 59/34 of 2 December 2004 (Nationality of natural persons in relation to the succession of States).

General Assembly resolution 63/118 of 11 December 2008 (Nationality of natural persons in relation to the succession of States).

General Assembly resolution 66/92 of 9 December 2011 (Nationality of natural persons in relation to the succession of States).


C. Doctrine

C.A. Batchelor, “UNHCR and issues related to nationality”, Refugee Survey Quarterly, vol. 14, no. 3, 1995, pp. 91-112.

D.P. O’Connell, State Succession in Municipal Law and International Law, Cambridge University Press, vol. 1, 1967, p. 501.

D.P. O’Connell, The Law of State Succession, Cambridge, Cambridge University Press, 1956, p. 245.


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At the forty-eighth session of the General Assembly, in 1993, following the recommendation of its Sixth Committee (A/48/612), the Assembly adopted resolution 48/31 of 9 December 1993, by which, having considered the report of the International Law Commission on the work of its forty-fifth session (A/48/10), it endorsed, inter alia, the decision of the Commission to include in its agenda the topic “State succession and its impact on the nationality of natural and legal persons”, 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 General Assembly.

At its forty-sixth session, in 1994, the International Law Commission appointed Mr. Václav Mikulka as Special Rapporteur for the topic. At the forty-ninth session of the General Assembly, following the recommendation of its Sixth Committee (A/49/738), the Assembly adopted resolution 49/51 of 9 December 1994 by which, having considered the report of the International Law Commission on the work of its forty-sixth session (A/49/10), the Assembly again endorsed the decision of the Commission to undertake work on the topic in accordance with the terms of resolution 48/31. By resolution 49/51, the General Assembly also requested the Secretary-General to invite Governments to submit relevant materials to the Commission, 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 International Law Commission considered the first and second reports submitted by the Special Rapporteur (A/CN.4/467; A/CN.4/474 and Corr.1-2). At these sessions, the Commission also 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 to be undertaken. At the fiftieth session of the General Assembly, in 1995, following the recommendation of its Sixth Committee (A/50/638), the Assembly adopted resolution 50/45 of 11 December 1995 by which, having considered the report of the International Law Commission on the work of its forty-seventh session (A/50/10), it took note of the beginning of the work on the topic and invited the Commission to continue its work on the matter along the lines indicated in the report. By the same resolution, the General Assembly requested the Secretary-General to again invite Governments to submit materials relevant to the topic.

At its forty-eighth session, the International Law Commission, in accordance with the conclusions of the Working Group, recommended to the General Assembly that it take note 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: (a) consideration of the question of the nationality of natural persons would be separated from that of the nationality of legal persons and that priority would be given to the former; (b) without prejudicing a final decision, the result of the work on the question of the nationality of natural persons should take the form of a declaration of the General Assembly consisting of articles with commentaries; and (c) the decision on how to proceed with respect to the question of the nationality of legal persons would be taken upon completion of the work on the nationality of natural persons and in the light of the comments that the General Assembly may invite States to submit to it on the practical problems raised by a succession of States in the field of legal persons (Report of the Working Group, A/CN.4/L.507; Oral report by the Chairman of the Working Group, Report of the International Law Commission, A/51/10).

At the fifty-first session of the General Assembly, in 1996, following the recommendation of its Sixth Committee (A/51/626), the Assembly adopted resolution 51/160 of 16 December 1996, by which, having considered the report of the International Law Commission on the work of its forty-eighth session (A/51/10 and Corr.1), it took note of the completion of the preliminary study of the topic and requested the Commission to undertake the substantive study of the topic on the basis of the modalities provided for in its report.

At its forty-ninth session, in 1997, the Commission proceeded to examine the third report submitted by the Special Rapporteur (A/CN.4/480 and Add.1). The Commission adopted on first reading a draft preamble and a set of twenty-seven draft articles on the nationality of natural persons in relation to the succession of States, with commentaries, and decided to transmit them, through the Secretary-General, to Governments for comments and observations. At its fifty-second session, in 1997, following the recommendation of its Sixth Committee (A/52/648), the General Assembly adopted resolution 52/156 of 15 December 1997 by which, having considered the report of the International Law Commission on the work of its forty-ninth session (A/52/10), it 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 had before it a compilation of information provided by Governments (A/CN.4/493 and Corr.1) and a memorandum by the Secretariat containing an overview of the comments and observations of Governments, made either orally in the Sixth Committee or in writing. (A/CN.4/497). The Commission decided to re-establish the Working Group to review the text of the draft articles adopted on first reading, taking into account comments and observations received by Governments. On the basis of the report of the Chairman of the Working Group (A/CN.4/L.572), 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. At the same session, the Commission decided to recommend that the General Assembly adopt the draft articles in the form of a declaration (Report of the International Law Commission, A/54/10).

At the fifty-fourth session of the General Assembly, in 1999, following the recommendation of its Sixth Committee (A/54/610), the Assembly adopted resolution 54/112 of 9 December 1999 by which, having considered the report of the International Law Commission on the work of its fifty-first session (A/54/10), it 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. By the same resolution, 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 Assembly considering the elaboration of such a convention at a future session.

At the fifty-fifth session of the General Assembly, in 2000, the Assembly, on the recommendation of its Sixth Committee (A/55/610), adopted resolution 55/153 of 12 December 2000, by which 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”.

At its fifty-ninth session, in 2004, the General Assembly, on the recommendation of its Sixth Committee (A/59/504), adopted resolution 59/34 of 2 December 2004, by which it 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.

At its sixty-third session, in 2008, the General Assembly, on the recommendation of its Sixth Committee (A/63/436), adopted resolution 63/118 of 11 December 2008, which reiterated the requests and invitations contained in resolution 59/34.

At its sixty-sixth session, in 2011, the General Assembly, on the recommendation of its Sixth Committee (A/66/469), adopted resolution 66/92 of 9 December 2011. The Assembly reiterated its invitation to Governments to take into account, as appropriate, the provisions of the articles contained in the annex to resolution 55/153, in dealing with issues of nationality of natural persons in relation to the succession of States. The Assembly once again encouraged States to consider, as appropriate, at the regional or subregional levels, the elaboration 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. The Assembly emphasized the value of the articles in providing guidance to the States dealing with issues of nationality of natural persons in relation to the succession of States, in particular concerning the avoidance of statelessness, and it decided that, upon the request of any State, it will revert to the question of nationality of natural persons in relation to the succession of States at an appropriate time, in the light of the development of State practice in those matters.


Text of the Instrument

Selected preparatory documents
(in chronological order)

International Law Commission, Summary records of meeting No. 2317, held on 7 July 1993 (A/CN.4/SR.2717, reproduced in Yearbook of the International Law Commission 1993, vol. I)

General Assembly, Report of the International Law Commission on the work of its forty-fifth session, May – July 1993 (A/48/10, reproduced in Yearbook of the International Law Commission 1993, vol. II (2))

Report of the Sixth Committee to the General Assembly (A/48/612, 3 December 1993)

General Assembly resolution 48/31 of 9 December 1993 (Report of the International Law Commission on the work of its forty-fifth session)

International Law Commission, Summary records of meeting No. 2376, held on 22 July 1994 (A/CN.4/SR.2376, reproduced in Yearbook of the International Law Commission 1994, vol. I)

General Assembly, Report of the International Law Commission on the work of its forty-sixth session, May – July 1994 (A/49/10)

Report of the Sixth Committee to the General Assembly (A/49/738, 2 December 1994)

General Assembly resolution 49/51 of 9 December 1994 (Report of the International Law Commission on the work of its forty-sixth session)

International Law Commission, Summary records of meetings Nos. 2385, 2387 to 2391, 2411 and 2413, held on 17, 19, 23, 24, 26and 30 May, 5 and 7 July 1995 (A/CN.4/SR.2385, A/CN.4/SR.2387, A/CN.4/SR.2388, A/CN.4/SR.2389, A/CN.4/SR.2390, A/CN.4/SR.2391, A/CN.4/SR.2411, A/CN.4/SR.2413, reproduced in Yearbook of the International Law Commission 1995, vol. I)

International Law Commission, First report on State succession and its impact on the nationality of natural and legal persons submitted by the Special Rapporteur, Mr. Mikulka (A/CN.4/467)

International Law Commission, Report of the Working Group on State Succession and its Impact on the Nationality of Natural and Legal Persons (A/CN.4/L.507, 23 June 1995)

General Assembly, Report of the International Law Commission on the work of its forty-seventh session, May – July 1995 (A/50/10)

Sixth Committee of the General Assembly, Summary records of meetings Nos. 18 to 24 and 44 of the fiftieth regular session, held on 19, 20, 25, 26, 27 October and 22 November 1995 (A/C.6/50/SR.18, A/C.6/50/SR.19, A/C.6/50/SR.20, A/C.6/50/SR.21, A/C.6/50/SR.22, A/C.6/50/SR.23, A/C.6/50/SR.24, A/C.6/50/SR.44)

Report of the Sixth Committee to the General Assembly (A/50/638, 5 December 1995)

General Assembly resolution 50/45 of 11 December 1995 (Report of the International Law Commission on the work of its forty-seventh session)

International Law Commission, Summary records of meetings Nos. 2435, 2451 and 2459, held on 4 June, 2 and 12 July 1996 (A/CN.4/SR.2435, A/CN.4/SR.2451, A/CN.4/SR.2459, reproduced in Yearbook of the International Law Commission 1996, vol. I)

International Law Commission, Second report on State succession and its impact on the nationality of natural and legal persons submitted by the Special Rapporteur, Mr. Mikulka (A/CN.4/474 and Corr.1-2, 17 April 1996)

General Assembly, Report of the International Law Commission on the work of its forty-eighth session, May – July 1996 (A/51/10)

International Law Commission, Oral report by the Chairman of the Working Group on State Succession and its Impact on the Nationality of Natural and Legal Persons (A/51/10, paras. 78-87, July 1996)

Sixth Committee of the General Assembly, Summary records of meetings Nos. 37 to 41 of the fifty-first regular session, held, respectively, from 11 to 15 November 1996 (A/C.6/51/SR.37, A/C.6/51/SR.38, A/C.6/51/SR.39, A/C.6/51/SR.40, A/C.6/51/SR.41)

Report of the Sixth Committee to the General Assembly (A/51/626, 3 December 1996)

General Assembly resolution 51/160 of 16 December 1996 (Report of the International Law Commission on the work of its forty-eighth session)

International Law Commission, Summary records of meetings Nos. 2475 to 2486, 2488 to 2499, 2504, 2505 and 2507 to 2509, held from 13 to 30 May, 5 to 25 June, 3, 4 and 8 to 10 July 1997 (A/CN.4/SR.2475, A/CN.4/SR.2476, A/CN.4/SR.2477, A/CN.4/SR.2478, A/CN.4/SR.2479, A/CN.4/SR.2480, A/CN.4/SR.2481, A/CN.4/SR.2482, A/CN.4/SR.2483, A/CN.4/SR.2484, A/CN.4/SR.2485, A/CN.4/SR.2486, A/CN.4/SR.2488, A/CN.4/SR.2489, A/CN.4/SR.2490, A/CN.4/SR.2491, A/CN.4/SR.2492, A/CN.4/SR.2493, A/CN.4/SR.2494, A/CN.4/SR.2495, A/CN.4/SR.2496, A/CN.4/SR.2497, A/CN.4/SR.2498, A/CN.4/SR.2499, A/CN.4/SR.2504, A/CN.4/SR.2505, A/CN.4/SR.2507, A/CN.4/SR.2508 and A/CN.4/SR.2509, reproduced in Yearbook of the International Law Commission 1997, vol. I)

International Law Commission, Third report on nationality in relation to the succession of States submitted by the Special Rapporteur, Mr. Mikulka (A/CN.4/480 and Add.1, 27 February 1997)

General Assembly, Report of the International Law Commission on the work of its forty-ninth session, May – July 1997 (A/52/10)

Sixth Committee of the General Assembly, Summary records of meetings Nos. 17 to 20 and 23 to 25 of the fifty-second regular session, held, respectively, on 30, 31 October,3, 6 and 7 November 1997 (A/C.6/52/SR.17, A/C.6/52/SR.18, A/C.6/52/SR.19, A/C.6/52/SR.20, A/C.6/52/SR.23, A/C.6/52/SR.24, A/C.6/52/SR.25)

Report of the Sixth Committee to the General Assembly (A/52/648, 25 November 1997)

General Assembly resolution 52/156 of 15 December 1997 (Report of the International Law Commission on the work of its forty-ninth session)

International Law Commission, Summary records of meetings Nos. 2530 and 2544, held on 14 May and 9 June 1998  (A/CN.4/SR.2530, A/CN.4/SR.2544, reproduced in Yearbook of the International Law Commission 1998, vol. I)

International Law Commission, Nationality in relation to the succession of States: Comments and observations received from Governments (A/CN.4/493 and Corr.1, 4 December 1998)

International Law Commission, Summary records of meetings Nos. 2566, 2569, 2572, 2579, 2580, 2603, 2604, 2606 and 2607, held on 4, 7 and 14 May, 1 and 2 June,15, 16, 19 and 20 July 1999 (A/CN.4/SR.2566, A/CN.4/SR.2569, A/CN.4/SR.2572, A/CN.4/SR.2579, A/CN.4/SR.2580, A/CN.4/SR.2603, A/CN.4/SR.2604, A/CN.4/SR.2606, A/CN.4/SR.2607, reproduced in Yearbook of the International Law Commission 1999, vol. I)

International Law Commission, Nationality in relation to the succession of States: Memorandum by the Secretariat (A/CN.4/497, 8 March 1999)

International Law Commission, Report of the Chairman of the Working Group on Nationality in relation to the Succession of States (A/CN.4/L.572, 12 May 1999)

General Assembly, Report of the International Law Commission on the work of its fifty-first session, May – July 1999 (A/54/10)

Sixth Committee of the General Assembly, Summary records of meetings Nos. 15 to 20, 22, 26, and 28 of the fifty-forth regular session, held, respectively, from 25 to 28 October, and 1, 4 and 5 November 1999 (A/C.6/54/SR.15, A/C.6/54/SR.16, A/C.6/54/SR.17, A/C.6/54/SR.18, A/C.6/54/SR.19, A/C.6/54/SR.20, A/C.6/54/SR.22, A/C.6/54/SR.26, A/C.6/54/SR.28)

Report of the Sixth Committee to the General Assembly (A/54/610, 30 November 1999)

General Assembly resolution 54/112 of 9 December 1999 (Nationality of natural persons in relation to the succession of States)

Sixth Committee of the General Assembly, Summary records of meeting No. 31 of the fifty-fifth regular session, held, respectively, on 16 November 2000 (A/C.6/55/SR.31)

Report of the Sixth Committee to the General Assembly (A/55/610, 28 November 2000)

General Assembly resolution 55/153 of 12 December 2000 (Nationality of natural persons in relation to the succession of States)

Sixth Committee of the General Assembly, Summary records of meetings Nos. 15 and 26 of the fifty-ninth regular session, held, respectively, on 23 March and 17 November 2004 (A/C.6/59/SR.15, A/C.6/59/SR.26)

Report of the Sixth Committee to the General Assembly (A/59/504, 19 November 2004)

General Assembly resolution 59/34 of 2 December 2004 (Nationality of natural persons in relation to the succession of States)

General Assembly, Summary records of meetings Nos. 11, 25 and 26 of the sixty-third regular session, held, respectively, on 3, 5 and 14 November 2008 (A/C.6/63/SR.11, A/C.6/63/SR.25, A/C.6/63/SR.26)

Report of the Sixth Committee to the General Assembly (A/63/436, 17 November 2008)

General Assembly resolution 63/118 of 11 December 2008 (Nationality of natural persons in relation to the succession of States)

Sixth Committee of the General Assembly, Summary records of meetings Nos. 15 and 29 of the sixty-sixth regular session, held, respectively, on 9 November 2011 and 7 February 2012 (A/C.6/63/SR.15, A/C.6/63/SR.29)

Report of the Sixth Committee to the General Assembly (A/66/469, 9 November 2011)

General Assembly resolution 66/92 of 9 December 2011 (Nationality of natural persons in relation to the succession of States)

     

6 September 2000
General Assembly, United Nations Headquarters, New York.
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