1. The avoidance of statelessness is one of the major preoccupations of the international community. In accordance with customary international law States have an obligation, when determining who are their nationals, to avoid cases of statelessness. The rules for the implementation of this obligation are contained in the 1961 United Nations Convention on the Reduction of Statelessness.
2. The avoidance of statelessness is closely linked to the right of the individual to a nationality (1), since the non-fulfilment of this right leads to statelessness. The European Convention on Nationality refers in its Article 4 to both these general principles of international law.
3. Experience has shown that in particular in connection with State succession a large number of persons are at risk of losing their nationality without acquiring another nationality and in consequence becoming stateless. Chapter VI of the European Convention on Nationality on “State succession and nationality” contains some general principles related to nationality which are to be respected by States in the situation of State succession.
4. The present Convention builds upon Chapter VI of the European Convention on Nationality by developing more detailed rules to be applied by States in the context of State succession with a view to preventing, or at least as far as possible reducing, cases of statelessness arising from such situations. It goes without saying that, in accordance with Article 34 of the Vienna Convention on the Law of Treaties, the Convention can only create legal obligations for the States which are Parties to it.
5. Despite the close link between the European Convention on Nationality and the present Convention (see Preamble to the Convention), which recalls the main principles contained in the European Convention on Nationality of particular relevance in the context of State succession, it should be stressed that the Convention is limited in its scope to the avoidance of statelessness as a result of State succession. The Convention is therefore not intended to set the standards to be applied by States for the attribution of their nationality in this context such standards are instead to be found in Chapter VI of the European Convention on Nationality, in particular its Article 18. Thus, the principles and rules laid down in the Convention do not in any way affect the rights and obligations arising out of the European Convention on Nationality.
Article 1 Definitions
6. The Convention gives "State succession" the same meaning as other international instruments such as the two Vienna Conventions, on Succession of States in Respect of Treaties (1978) and on Succession of States in Respect of State Property, Archives and Debts (1983), as well as the draft Articles on Nationality of Natural Persons in Relation to the Succession of States, prepared by the United Nations International Law Commission in 1999 (ILC draft Articles). These instruments stipulate that they apply only to the effects of State succession occurring in conformity with international law and, in particular, with the principles of international law embodied in the Charter of the United Nations.
7. “State succession” may occur as a result of various types of events such as transfer of territory from one State to another, unification of States, dissolution of a State, and separation of part or parts of the territory. The term is used to describe any replacement of one State by another in respect of the responsibility for international territorial relations. States are, however, free to also apply, by way of analogy, the provisions set forth in the Convention to situations which they do not recognise, on the basis of the given definition, as State succession.
8. The term “State concerned” covers “predecessor State” which refers to the State that has been replaced by another State as a result of State succession as well as “successor State” which refers to the State that has replaced another State as a result of State succession. These definitions of predecessor and successor State originate from the two above-mentioned Vienna Conventions on State succession and they have been repeated in the ILC draft Articles. The term “State concerned” covers a situation where there is both a predecessor State and a successor State and where there is more than one of each. However, there will not always necessarily be one or more of each. The predecessor State, or predecessor States, might have disappeared after State succession, in which case the term will only refer to one or more successor States.
9. The definition of “statelessness” is based upon the definition of “a stateless person” given in Article 1 of the 1954 United Nations Convention relating to the Status of Stateless Persons, but with a slight modification in that it adds that by “law” is meant “internal law” which encompasses all the various types of provisions of the national legal system as specified in Article 2.d of the European Convention on Nationality. The definition in terms of binding legal obligation for the States concerned is thus limited to “de iure stateless persons”, although the Final Act of the 1961 United Nations Convention on the Reduction of Statelessness recommends that persons who are “de facto stateless” should as far as possible be treated as “de iure stateless” to enable them to acquire an effective nationality. The statelessness situation is only relevant for the application of the Convention if it has occurred or will occur as a result of the State succession in question. The Convention does not cover persons who were already stateless at the time of State succession, or persons who become stateless later and not as a result of the State succession.
10. The reference to "habitual residence" is based on an internationally harmonised concept of the term, as used in the Hague Conventions on Private International Law and in Resolution (72) 1 of the Council of Europe on the standardisation of the legal concepts of "domicile" and of "residence" for the purpose of naturalisation. The term refers to a de facto situation and does not imply any legal or formal qualification.
11. The definition of “persons concerned” is based on the one given in the ILC draft Articles and it encompasses all individuals who have already become stateless or who would become stateless as a result of the State succession because they have not acquired or will not acquire the nationality of the successor State and because they have lost or will lose the nationality of the predecessor State.
Article 2 Right to a nationality
12. The right to a nationality is a fundamental right recognised by Article 15 of the Universal Declaration of Human Rights. This right is one of the basic principles of the European Convention on Nationality. There is no reason why persons who had the nationality of the predecessor State should suddenly be left without any nationality following State succession. They should therefore be protected by the principles of the rule of law and rules of human rights, namely the principles contained in the European Convention on Nationality and its Chapter VI relating to State succession and nationality.
Article 3 Prevention of statelessness
13. The article contains the general principle that States concerned shall take all necessary action to prevent cases of statelessness arising from State succession. The measures to be applied might include the drawing up of international treaties on the prevention of statelessness and the application of this principle in their internal law. Other measures might also be envisaged. The formalities required to give effect to the rules contained in the internal law, for instance the payment of fees and the application of other administrative or judicial procedures, should not prevent a person who will become stateless as a result of State succession from acquiring a nationality.
14. As a general principle in international law, with a limited number of exceptions (such as cases of fraud), loss of nationality shall, wherever provided for in nationality laws, be based on the condition that the person does not thereby become stateless. This obligation is all the more evident in the case of State succession.
15. The principle stated in Article 3 indicates the general framework upon which other, more specific obligations are based. The elimination of statelessness is the outcome to be achieved by application of the set of principles and rules contained in the Convention, in particular through co-ordinated action of the States concerned by means of settlement by international agreement and international co-operation (see paragraphs 47-55 below).
16. States may if they so wish apply the provisions of the Convention also to de facto stateless persons. This is not a legal obligation but a possibility. State succession may well create situations of de facto statelessness where persons do have the nationality of one of the States concerned but are not able to benefit from the protection of that State.
Article 4 Non-discrimination
17. The principle of non-discrimination, based on Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol No. 12 to the said Convention, has a fundamental role in the avoidance of cases of statelessness in relation to State succession.
Article 5 Responsibility of the successor State
18. The responsibility of the successor State concerns two groups of persons:
a. those who were habitual residents on its territory at the time of State succession, and
b. those who have an appropriate connection with that State.
The responsibility of the successor State is limited to former nationals of the predecessor State who have or would become stateless as a result of the State succession in question. It therefore does not cover persons who were already stateless in the predecessor State. The right to a nationality of these persons may instead be covered by Article 6, paragraph 4.g of the European Convention on Nationality.
19. It should be noted that the Convention does not prescribe any specific way in which States should grant their nationality since this belongs to the domain of the internal law of the States concerned. Thus, the State can either grant its nationality on the basis of a voluntary act of the person concerned or automatically (ex lege).
20. The successor State shall apply the criterion of “habitual residence” to persons residing in its territory at the time of the State succession. The principle reflects the prima facie presumption under international law that the population of a territory follows the change of sovereignty over that territory in matters of nationality. This obligation is also a logical consequence of the fact that a newly-established successor State needs a population.
21. This criterion of “habitual residence” applies to several situations of State succession. Firstly, it concerns the situation of transfer of territory from one State to another State and that of separation of part or parts of the territory of the predecessor State to/from one or more new States. In these cases the successor State shall grant its nationality to persons who were nationals of the predecessor State and who have their habitual residence in the successor State. Secondly, “habitual residence” relates to the situation of the dissolution of a State, where the predecessor State ceases to exist, and to the one of unification of States, where two or more States unite and so form one successor State. The successor State shall grant its nationality to persons who habitually resided on its territory at the time of State succession and who have lost their nationality as a result of the dissolution of the predecessor State or through unification of States.
22. The second group of persons to whom the successor State has an obligation to grant its nationality are those who did not reside habitually on the territory of a successor State at the time of State succession. This may be either because, although present on the territory of the successor State, they are not considered to have fulfilled the criterion of “habitual residence” or because at the time of State succession they resided outside the territory of the predecessor State and therefore were not habitually resident on the territory of any of the States concerned. The successor State must grant these persons its nationality if there is an appropriate link connecting the individual with this State.
23. The provision is in particular relevant in situations where the predecessor State has ceased to exist and the persons who possessed its nationality have, therefore, automatically lost it at the moment of the State succession and have become stateless. The provision might also be relevant where the predecessor State continues to exist but has not acceded to the Convention and has withdrawn a person’s nationality.
24. Three examples of “appropriate connection” have been listed in paragraph 2. These cover the vast majority of cases. The list is however not exhaustive and States may go further. They may take into account other factors as well, such as: previous long residence on the territory; descent (by one generation or more) from a person covered by the article; or marriage to a person covered by the article (see “territorial origin” of a person as referred to in Article 18, paragraph 2.d of the European Convention on Nationality).
25. The example given in Article 5, paragraph 2.a is relevant only in the situation where a legal bond existed between the constituent unit of the predecessor State and the person concerned under the internal law of that State. Such was the case, for example, in federal States (“internal citizenship”). “Legal bond” may also include another kind of legal relationship between a specific part of the territory of a predecessor State (province, region, etc.) and a person concerned.
Article 6 Responsibility of the predecessor State
26. The responsibility of the predecessor State will only occur in respect of persons who have not acquired the nationality of a successor State. In such cases the predecessor State has an obligation not to withdraw its nationality from persons who are at risk of becoming stateless as a result of the State succession.
27. The article does not distinguish between whether the acquisition of nationality is based on a voluntary act (naturalisation) or has been attributed automatically by the State (ex lege). The simple fact that the person has not acquired the nationality of a successor State brings into effect the responsibility of the predecessor State.
28. The rule that, in order to avoid statelessness as a result of State succession, a predecessor State must not withdraw its nationality from persons who have not acquired that of another State corresponds to Article 7, paragraph 3 of the European Convention on Nationality. However, once the person has acquired the nationality of another State, be it the successor State or a third State, the predecessor State is free to withdraw its nationality, but only in conformity with its obligations under international law.
29. The provision is applicable only in situations where the predecessor State continues to exist after State succession, as is the case after transfer and separation of part or parts of the territory. In cases where the predecessor State has disappeared or is not a State Party to the Convention, only the previous article concerning the responsibility of the successor State shall apply.
Article 7 Respect for the expressed will of the person concerned
30. The provision applies exclusively to situations where a person has an appropriate connection with more than one successor State (Article 5, paragraph 1.b); in such cases if the person expresses the will to acquire the nationality of one of these States, this State shall not refuse its nationality to the person on the grounds that he or she may acquire the nationality of another successor State. The article is in particular relevant in cases where different family members might have an appropriate connection with several successor States and where the respect of the expressed will of the person concerned may preserve the family unity.
31. The will of a person to acquire the nationality of a specific State is usually expressed in the act of submitting an application for the acquisition of the nationality of this State. For children who have not yet reached the age of majority, as well as for persons lacking legal capacity, the will may be expressed through their legal representative. Where the child is old enough to be consulted his or her free will should be taken into account in conformity with the principle of the best interests of the child as stipulated in the 1989 United Nations Convention on the Rights of the Child.
Article 8 Rules of proof
32. The provision takes account of the situation where, due to the particular circumstances which might occur in the situation of State succession, it is impossible or very difficult for a person to fulfil the standard requirements of proof to meet the conditions for the acquisition of nationality.
33. It might in some cases be impossible for a person to provide full documentary proof of his or her descent if, for instance, the civil registry archives have been destroyed, or it might be impossible to provide documentary proof of the place of residence in cases where this was not registered. The provision includes the situation where it might objectively be feasible for a person to provide proof but where it would be unreasonable to demand for instance an action by a person which might put his or her life or health in danger.
34. The circumstances which lead to the difficulty in providing proof in order to meet the requirement are not necessarily always linked directly to the event of the State succession. It might be the consequence of an event that occurred before or after the time of the State succession, for instance where under the regime of the predecessor State a registry was destroyed or essential documents were not issued to a certain group of the population.
35. In the cases mentioned above it shall be sufficient to have a high probability of proof or independent testimony that the conditions for the acquisition of the nationality of a successor State are fulfilled.
36. The provision is only relevant in the situation of State succession where the predecessor State has disappeared and all persons possessing the nationality of the predecessor State have lost this nationality as an automatic consequence of that State’s disappearance. If in such a case the new successor State pursues a policy of preventing and reducing cases of multiple nationality, it might require proof from the person that he or she has not acquired another nationality, or that he or she is stateless. The requirement of proof of not possessing another nationality or proof of being stateless is often impossible for the individual to fulfil since it will necessitate the co-operation of other States. This may be the case in particular for stateless refugees. In cases where there is a risk that the person concerned might become stateless as a result of the State succession, the successor State shall not require proof of the non-acquisition of another nationality or of statelessness before granting its nationality. This rule is based on the predominant view that the prevention of statelessness is of primary concern to the international community while the acceptance or non-acceptance of multiple nationality is a matter for the individual State.
37. Article 8 does not prevent a State that wishes to reduce the number of cases of multiple nationality from co-operating with other States and exchanging information on the acquisition and loss of nationality (see Article 14). The provision on non-recognition of another nationality contained in the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, as well as the possibility of automatic loss of nationality in the case of voluntary acquisition of another nationality as provided for in Article 7, paragraph 1.a of the European Convention on Nationality may serve as a useful means to counter cases of multiple nationality. Finally a State may ask the individual to make a written statement on the non-acquisition of another nationality which will enable the State to annul its granting of nationality in cases where it is later discovered that the person has made a false declaration.
Article 9 Facilitating the acquisition of nationality by stateless persons
38. The article is intended to fill any gaps after the application of Articles 5 and 6, either as a result of the predecessor State not being a party to the Convention or because of its disappearance as a result of which all persons who possessed its nationality automatically became stateless. If these persons subsequently fail to fulfil the conditions for the acquisition of nationality of a successor State they will remain stateless. In such cases, it is important that the successor State provide more favourable conditions for the acquisition of its nationality for stateless persons lawfully and habitually resident on its territory. The provision does, however, not affect the discretionary powers of States to grant nationality to such stateless persons.
39. The article also takes account of the situation of dissolution of a State where the time of State succession may not be the same for all successor States, for instance, because of differing attitudes as to the time of the disappearance of the predecessor State. The successor States may also choose to consider a different time than State succession as the decisive criterion for the acquisition of their nationality, for instance residence on their territory at the time of another specific event (e.g. the day of adoption of the Constitution or the entry into force of the nationality law).
40. State succession is often a process which may take place over a lapse of time. During this period persons may change residence from a State before the decisive date for the acquisition of the nationality of this State to residence in another State after the decisive date for the acquisition of the nationality of that State and therefore not fulfil the condition in Article 5.a of habitual residence in either successor State with the risk of remaining stateless.
41. The provision is, however, not intended to apply in cases where a person’s change of residence is motivated by purely speculative reasons which typically might occur in situations where the moment of State succession is fixed at a precise date. The Nottebohm case (2) has shown that such speculative change of residence is considered a misuse of nationality laws since it is not based on the existence of a genuine link to the State in question.
Article 10 Avoiding statelessness at birth
42. In the light of Article 7 of the 1989 United Nations Convention on the Rights of the Child, which in paragraph 1 stipulates that a child shall be registered immediately after birth and has the right, inter alia, to acquire a nationality and in paragraph 2 obliges States to ensure the implementation of these rights, in particular where the child would otherwise be stateless, the Convention pays special attention to preventing children from becoming stateless as a result of State succession. A child shall therefore at birth acquire the nationality of a successor State on the basis of the ius soli principle if there is a risk that a child born of a parent who was a former national of the predecessor State at the time of State succession will be stateless. The child’s acquisition of the nationality of a successor State is, in this case, not dependent on whether the parent also acquires the nationality of this successor State. The aim of the provision is to avoid children becoming stateless as a result of their parents being stateless.
43. It might not always in practice be possible for the child to be granted the nationality immediately at birth. The provision states, however, the principle that the child has the right to acquire the nationality at birth ex lege if he or she fulfils the condition set forth in the article.
Article 11 Information to persons concerned
44. A State concerned shall take all necessary measures so that persons concerned are informed in time of the rules and procedures concerning the acquisition of its nationality. The habitual promulgation of the law in the official gazette is in most cases not sufficient. States are normally obliged to take additional measures to ensure that the information reaches all persons concerned by the use, for instance, of the media or the Internet, or with the assistance of non-governmental organisations if necessary. It is, however, left to the individual States to determine which measures are the most appropriate as long as the information is disseminated in an open and transparent manner. The person concerned should, inter alia, receive information on where to submit an application for the acquisition of nationality and which authority to address for more information.
45. In the light of the previous article it should be stressed that States should provide sufficient information on the right of all children born on their territory to be registered at birth since the absence of birth registration can have significant repercussions for unregistered children including that of statelessness (see the 1989 United Nations Convention on the Rights of the Child).
Article 12 Procedural guarantees
46. Considering that certain States Parties to this Convention may not be bound by the European Convention on Nationality, Article 12 reproduces the contents of the latter’s Chapter IV “Procedures relating to Nationality”. Accordingly, the relevant paragraphs (83-93) of the Explanatory Report to the European Convention on Nationality also apply to Article 12 of the present Convention.
Article 13 Settlement by international agreement
47. The article favours solutions on nationality matters agreed between the States concerned in particular with a view to avoiding cases of statelessness arising as a result of State succession.
48. Since the aim of the Convention is limited to the avoidance of statelessness as a result of State succession, it is not concerned with the question of which nationality would be the most relevant for a person to acquire on the basis of the predominant effective links with a State. The States concerned might, therefore, agree on a more adequate solution in matters of nationality by means of bilateral agreements.
Article 14 International co-operation
49. The Convention recognises that co-operation among States is an important means of avoiding cases of statelessness as a result of State succession. The main purpose of such co-operation is the co-ordination of national policies (and, as far as possible, legislation) in this field, on the basis of accepted principles. Indeed, such co-ordination is of fundamental importance as statelessness often results from the differences in the laws of States relating to nationality and from the combined effect of these laws.
50. Co-operation between the States concerned includes the exchange of information on the operation of their “internal law” which, as specified in Article 2.d of the European Convention on Nationality, encompasses all the various types of provisions of the national legal system. Exchange of information is in particular important for determining a person's status as stateless.
51. The provision is particularly important in cases where a successor State pursues a policy of single nationality and wishes to ensure before the granting of its nationality that the person concerned does not possess the nationality of another successor State and where this can only be proved through co-operation between two or more States. In this respect reference is also made to the Additional Protocol of the 1963 Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality (ETS No. 96) and the 1964 Convention on the Exchange of Information Concerning Acquisition of Nationality (Convention No. 8 of the International Commission on Civil Status).
52. The provision indicates that co-operation shall at least take place with the Council of Europe and with the United Nations High Commissioner for Refugees (UNHCR). Co-operation between these two organisations is already taking place within the framework of a Memorandum of Understanding concluded between the two on joint action in areas of mutual interest.
53. Within the Council of Europe, co-operation on matters relating to nationality, including instances of statelessness, takes place within the European Committee on Legal Co-operation (CDCJ), which acts as the intergovernmental body for co-operation among the member States of the Council of Europe by virtue of Article 23 of the European Convention on Nationality. It was the subordinate committee of the CDCJ the Committee of Experts on Nationality (CJ-NA), with representatives from nearly all European States either as members or observers, that has been responsible for the preparation of the Convention as a follow-up to its elaboration of the European Convention on Nationality and the Recommendation on the avoidance and reduction of statelessness adopted by the Committee of Ministers of the Council of Europe in 1999. The CJ-NA has in its work on the preparation of these instruments been assisted by the representatives of other international organisations concerned by nationality and the prevention of statelessness, in particular the UNHCR.
54. In some situations it might be insufficient to limit the co-operation to the Contracting Parties and the member States of the Council of Europe only. In such cases the co-operation should be extended to other States in Europe as well and even States outside Europe.
55. Co-operation may also be extended to other international organisations and may, for instance, include the United Nations Children’s Fund where it concerns the avoidance of statelessness of children, the United Nations High Commissioner for Human Rights which in some countries is concerned by this issue, as well as other international organisations which in certain regions have a special mandate in this field. The question of which international organisations to include will depend on the particular situation. States concerned are free to extend this co-operation to non-governmental organisations as well.
Article 15 Application of this Convention
56. In accordance with the general rule of international law the Convention applies only to cases of State succession occurring after its entry into force.
57. A State Party may, however, wish also to apply the provisions of the Convention to cases of State succession which occurred before its entry into force. If it makes a declaration to this effect in accordance with the Vienna Convention on the Law of Treaties it thereby creates a unilateral obligation upon itself to apply the provisions of the Convention retroactively. The State will, however, need to specify for which cases of State succession it will apply the Convention retroactively. The possibility of applying the Convention retroactively is in particular relevant for States that were not Parties to the Convention at the time of State succession. This will be the case, for instance, in the situation of the unification of States where several States merge into one State or where one State has absorbed one or more States.
58. If two or more States affected by the same State succession make a declaration regarding the retroactive application of the Convention, it will have a reciprocal effect on them. This situation will typically occur in the event of the separation of a State into one or more successor States where the predecessor State either continues to exist or is dissolved. To have a reciprocal effect upon two or more States the declarations must relate to a specific case of State succession which involves both or all these States. The scope of the retroactive application of the Convention will thereby be extended as soon as more States join in by making declarations to this effect, and may eventually apply to the whole territory affected by a specific case of State succession.
Article 16 Effects of this Convention
59. Paragraph 1 safeguards those provisions of internal law and binding international instruments which provide additional protection to individuals against statelessness; this Convention shall not be interpreted so as to restrict such protection. The phrase "more favourable rights" refers to the possibility of putting an individual in a more favourable position than provided for under the Convention, for example by rules of a State Party concerning the acquisition of its nationality.
60. Paragraph 2 indicates that this Convention does not replace Chapter VI of the European Convention on Nationality concerning State succession and nationality in the relationship between the States Parties to these instruments. States may choose and are in fact encouraged to be Parties to both these instruments.
Article 17 Settlement of disputes
61. In the case of any dispute concerning the interpretation or application of the provisions contained in this Convention, the States Parties shall attempt to resolve the conflict or problem in the first instance by means of negotiation. This explanatory report shall serve as an aid to the interpretation and application of the Convention.
Article 18 Signature and entry into force
62. The Convention will enter into force on the first day of the month following the expiration of a period of three months after the date on which three member States of the Council of Europe have expressed their consent to be bound by it.
63. The Convention is also open to signature by non-member States of the Council of Europe which have participated in its elaboration. These States are Belarus,Canada, the Holy See, Japan and Kyrgyzstan.
Article 19 Accession
64. Due to the importance of allowing a large number of States to become Parties, in particular where there is a need for co-operation between them, the Convention is also open to accession by non-member States not listed in the commentary under Article 17, after its entry into force in accordance with the procedure laid down under that article.
Article 20 Reservations
65. Reservations are not permissible in respect of the Convention, with a limited number of exceptions. Reservations are admissible with regard to only the following provisions Article 7, Article 8, paragraph 2, Article 12 and Article 14, paragraph 2.b.
66. The object of the Convention is to establish principles and rules to be respected by the States concerned by State succession on the acquisition and retention of their nationality by persons who had the nationality of the predecessor State at the time of the State succession and who are at risk of becoming stateless as a result of such succession. The purpose of the Convention is to eliminate, or at least as far as possible to reduce, statelessness arising from State succession. Further guidance is provided by the Preamble to the Convention.
67. Given that reservations are not generally desirable, States Parties wishing to make reservations should consider withdrawing the reservations in whole or in part as soon as circumstances permit. They are furthermore invited to notify the Secretary General of the Council of Europe of the relevant contents of their internal law or of any other relevant information.
Article 21 Denunciation
68. This article enables a State which is a Party to the Convention to denounce it.
Article 22 Notifications
69. Information concerning steps taken by States in relation to the Convention will be sent by the Secretary General of the Council of Europe, depositary of the Convention, to other States in compliance with this article.