Succession to Nationality

Succession to nationality concerns the effect of State succession on the nationality of individuals ordinarily connected with the territory affected by the succession. When one State replaces another in responsibility for a territory, questions arise concerning whether the persons living in that territory retain their former nationality, acquire the nationality of the successor State, or are given a choice between different nationalities.

The subject is closely connected with State succession, nationality, self-determination and the prevention of statelessness.

Meaning of Succession to Nationality

Succession to nationality refers to the legal consequences for the nationality of individuals when State succession occurs.

The basic situation is:

Predecessor State → State succession → Successor State

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Question: What happens to the nationality of the affected population?

The answer depends upon:

• the type of State succession;
• the nationality laws of the States concerned;
• agreements between the States;
• the habitual residence of individuals;
• the principle of genuine connection;
• applicable International Law.

Nationality

Nationality is the legal relationship between an individual and a State.

It generally establishes:

• membership in the State;
• political and legal rights;
• diplomatic protection;
• obligations towards the State.

Nationality should be distinguished from citizenship where the applicable legal system makes a distinction between the two concepts.

State Succession and Nationality

State succession can fundamentally alter the nationality position of individuals because the State exercising sovereignty over their territory may change.

For example:

State A → Territory becomes part of State B

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Residents of the territory

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Question of nationality

The individuals may become nationals of State B, retain nationality of State A, or acquire a right to choose nationality depending upon the applicable rules.

Principle of Avoiding Statelessness

One of the most important considerations in succession to nationality is the prevention of statelessness.

A person should not ordinarily be left without any nationality merely because State succession has occurred.

Therefore, State succession should be managed in a way that prevents individuals from falling into a legal position where:

Nationality of State A lost

Nationality of State B not acquired

=

Statelessness

Right to Nationality

Nationality is recognised as an important legal status in International Law.

State succession therefore requires attention to the nationality rights of affected individuals.

The relevant rules seek to balance:

• State sovereignty;
• territorial change;
• individual rights;
• genuine connection;
• prevention of statelessness.

Change of Nationality

State succession may result in a change of nationality.

For example:

State A → State B assumes responsibility for territory

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Persons habitually resident in territory

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Nationality may change from State A to State B

However, the precise legal consequences depend upon the particular type of succession and the applicable nationality rules.

Automatic Acquisition of Nationality

In some forms of State succession, individuals may automatically acquire the nationality of the successor State.

This may particularly concern persons who:

• are habitually resident in the territory;
• have a close connection with the territory;
• were nationals of the predecessor State.

Automatic acquisition is not necessarily identical in every situation.

Option to Choose Nationality

In some situations, individuals may be given a right of option.

This means that a person may be permitted to choose between:

• nationality of the predecessor State;
• nationality of the successor State.

The availability and scope of such an option depend upon:

• agreements;
• domestic legislation;
• applicable International Law;
• the particular form of succession.

Habitual Residence

Habitual residence may be an important factor in determining nationality after State succession.

A person who has their established residence in the territory affected by succession may have a stronger connection with the successor State.

Relevant considerations may include:

• permanent residence;
• family connection;
• economic connection;
• social connection;
• duration of residence.

Genuine Connection

The concept of genuine connection may also be relevant.

Nationality should not necessarily be determined solely by a formal connection where the individual’s actual relationship with a State lies elsewhere.

The principle of genuine connection has historically been associated with questions concerning nationality and diplomatic protection.

Nationality and Self-Determination

Self-determination is particularly important where new States emerge.

Where a people becomes independent from colonial rule, questions arise concerning the nationality of the population of the newly independent State.

The population may generally acquire the nationality of the new State according to the applicable legal arrangements.

Newly Independent States

Decolonisation produces special nationality questions.

When a colony becomes an independent State:

Colonial State → Independence → New State

The inhabitants may acquire the nationality of the newly independent State.

The transition should ideally avoid:

• arbitrary deprivation of nationality;
• discrimination;
• statelessness.

Transfer of Territory

When territory is transferred from one State to another, nationality questions arise for persons habitually resident in the transferred territory.

The successor State may confer its nationality upon those persons according to applicable rules.

An agreement between the predecessor and successor States may also regulate:

• nationality;
• residence;
• option rights;
• dual nationality.

Secession

Secession occurs when part of a State separates and forms a new State.

Nationality questions may then arise concerning the inhabitants of:

• the newly independent State;
• the continuing State.

The relevant rules may consider:

• habitual residence;
• territorial connection;
• ethnic or family connections;
• individual choice;
• prevention of statelessness.

Dissolution

Dissolution is particularly complex because the predecessor State disappears.

For example:

State A → Ceases to exist

↓

States B + C + D

The population must then be allocated for nationality purposes among the successor States.

Possible criteria include:

• habitual residence;
• territorial connection;
• previous nationality;
• individual choice;
• agreements between successor States.

Unification or Merger

Where two States unite to form one State, nationality arrangements may be determined by the constitutional and legal arrangements establishing the unified State.

Individuals may acquire the nationality of the new or continuing State according to those arrangements.

Questions may arise concerning:

• dual nationality;
• loss of previous nationality;
• acquisition of new nationality.

Nationality and Dual Nationality

State succession can create situations of dual nationality.

For example:

Person retains nationality of State A

Person acquires nationality of State B

=

Dual nationality

States may establish rules to:

• permit dual nationality;
• prevent dual nationality;
• require an individual to choose one nationality.

The applicable approach depends upon domestic law and relevant agreements.

Nationality and Statelessness

Statelessness is one of the most serious problems that can arise from State succession.

A person may become stateless if:

• the predecessor State withdraws nationality;
• the successor State refuses nationality;
• nationality laws conflict;
• the individual falls between competing legal systems.

International legal developments therefore emphasise preventing such outcomes.

Nationality and Children

State succession may raise special questions concerning children.

Issues may include:

• nationality acquired through parents;
• place of birth;
• habitual residence;
• prevention of statelessness;
• preservation of family unity.

The applicable rules depend upon domestic nationality laws and relevant international obligations.

Nationality and Women

Historically, nationality laws sometimes produced different consequences for women based on marriage or changes in their husband’s nationality.

Modern legal approaches place greater emphasis on:

• equality;
• prevention of arbitrary loss of nationality;
• independent nationality rights.

Nationality and Minorities

State succession can significantly affect minorities living in territories undergoing territorial change.

Questions may arise concerning:

• nationality;
• discrimination;
• residence;
• cultural rights;
• political participation.

The nationality arrangements should therefore be examined together with broader human rights obligations.

Nationality and Diplomatic Protection

Nationality is important for diplomatic protection.

A State generally requires a nationality connection with an individual before it can exercise diplomatic protection on that person’s behalf.

Therefore, State succession can affect:

Nationality → Diplomatic protection → International claim

Nationality and International Claims

A change in nationality may affect an individual’s ability to bring or receive support for certain international claims.

This may be particularly important where:

• property rights are disputed;
• individuals suffered loss during territorial change;
• diplomatic protection is sought.

Nationality and Property Rights

State succession may also affect the nationality status of individuals whose property is located in the affected territory.

However, nationality and property rights are separate legal questions.

A change of nationality does not automatically extinguish private property rights.

International Legal Framework

Nationality in the context of State succession has been addressed through international instruments and international practice.

Important materials include:

• principles concerning prevention of statelessness;
• human rights rules concerning nationality;
• the International Law Commission’s work on nationality in relation to State succession;
• domestic nationality laws;
• agreements between successor States.

International Law Commission

The International Law Commission addressed the subject through its Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, 1999.

These Draft Articles provide important principles concerning:

• nationality;
• State succession;
• prevention of statelessness;
• right to nationality;
• individual choice;
• non-discrimination.

Principle of Effective Nationality

Where competing nationality claims arise, the individual’s effective or genuine connection with a State may become relevant.

Factors may include:

• habitual residence;
• family ties;
• social connections;
• economic interests;
• participation in public life.

Non-Discrimination

Nationality arrangements following State succession should not be implemented in an arbitrary or discriminatory manner.

Particular attention may be required where distinctions are made based on:

• ethnicity;
• religion;
• language;
• gender;
• political affiliation.

Agreements Between States

The predecessor and successor States may conclude agreements dealing specifically with nationality.

Such agreements may regulate:

• automatic acquisition;
• retention of previous nationality;
• option rights;
• dual nationality;
• loss of nationality;
• prevention of statelessness.

Agreements can therefore provide greater certainty during succession.

Nationality and State Continuity

Where a State continues to exist, its nationals do not automatically lose their nationality merely because part of its territory separates.

For example:

State A continues

↓

Part of State A becomes State B

↓

Nationality questions arise separately for residents of A and B

The continuing State retains its international legal personality.

Nationality and Recognition

Nationality succession should not be confused with recognition.

Recognition

Concerns acceptance of a State or Government by other States.

Succession to Nationality

Concerns the nationality of individuals affected by State succession.

Recognition may influence the practical treatment of a new State, but nationality is a separate legal question.

Nationality and State Succession: Basic Approach

For examination purposes, the following approach is useful:

Identify the type of State succession

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Identify the persons affected

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Determine their territorial and personal connection

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Examine applicable nationality laws and agreements

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Apply principles concerning nationality and prevention of statelessness

Important Examples

Dissolution of Yugoslavia

The dissolution of Yugoslavia created significant nationality questions involving:

• successor States;
• habitual residence;
• dual nationality;
• citizenship laws;
• persons displaced by the conflict.

Dissolution of the Soviet Union

The emergence of multiple independent States raised questions concerning:

• nationality;
• citizenship;
• residence;
• dual nationality;
• persons living outside their former republic of nationality.

Decolonisation

The independence of former colonial territories created extensive nationality questions concerning the transition from colonial nationality arrangements to nationality of newly independent States.

Common Confusions

Does State succession automatically make everyone a national of the successor State?

Not necessarily. The applicable law depends upon the type of succession and the relevant nationality arrangements.

Can a person retain the nationality of the predecessor State?

Yes, depending upon the circumstances and applicable law.

Can a person acquire dual nationality?

Yes. State succession can produce dual nationality where the relevant legal systems permit or produce such a result.

Is statelessness possible after State succession?

Yes. Conflicting or inadequate nationality rules can produce statelessness, which international legal principles seek to prevent.

Does recognition determine nationality?

No. Recognition and nationality are separate legal concepts.

Does change of Government automatically change nationality?

No. A change of Government normally does not affect the nationality of the State’s citizens.

Is nationality the same as residence?

No. Residence is an important connecting factor but is not necessarily identical to nationality.

Topic at a Glance

Point	Position
Subject	Succession to Nationality
Main issue	Nationality consequences of State succession
Key concern	Prevention of statelessness
Important factor	Habitual residence
Other factors	Territorial connection, agreements, domestic law
Transfer of territory	Nationality arrangements may change
Secession	Nationality of continuing and successor States must be addressed
Dissolution	Nationality must be allocated among successor States
Decolonisation	New nationality arrangements emerge
Dual nationality	May arise
International Law Commission	Draft Articles, 1999
Recognition	Separate from nationality

Quick Revision

• Succession to nationality concerns the nationality of individuals affected by State succession.
• State succession may result in:
  • acquisition of a new nationality;
  • retention of previous nationality;
  • dual nationality;
  • loss of nationality.
• The prevention of statelessness is a major principle.
• Habitual residence is an important connecting factor.
• Territorial connection and genuine connection may also be relevant.
• In transfer of territory, residents may acquire the nationality of the successor State under applicable rules.
• In secession, nationality questions arise for both the continuing and successor States.
• In dissolution, nationality must be addressed among the several successor States.
• Decolonisation creates special nationality questions involving newly independent States.
• Agreements between States may regulate nationality, option rights and dual nationality.
• The International Law Commission’s Draft Articles of 1999 specifically address nationality in relation to State succession.
• Nationality is important for diplomatic protection.
• Nationality should be distinguished from residence and recognition.
• A change of Government does not normally constitute succession to nationality.
• The essential principle is:

State succession should not arbitrarily deprive individuals of nationality and should, as far as possible, prevent statelessness while taking account of territorial and genuine connections.

Conclusion

Succession to nationality concerns the effect of State succession on the nationality of individuals connected with the territory undergoing a change in sovereignty. The problem is particularly important in cases of territorial transfer, secession, dissolution and decolonisation. Individuals may acquire the nationality of the successor State, retain their previous nationality, acquire dual nationality or, in certain circumstances, face the risk of statelessness. Habitual residence, territorial connection, genuine connection, domestic nationality laws and agreements between States may all be relevant in determining the appropriate result. Modern International Law places particular emphasis on the right to nationality, non-discrimination and the prevention of statelessness. The International Law Commission’s Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, 1999 provide an important framework for the subject. Ultimately, succession to nationality seeks to reconcile the consequences of territorial change with the protection of individuals’ nationality rights.