Certain provisions of the draft protocol, as currently worded, could be improved so as to take account of the opinions previously expressed by, inter alia, the Assembly and the European Commission for Democracy through Law (Venice Commission). Consequently, the Assembly recommends that the Committee of Ministers introduce the following amendments, which it regards as essential, to the draft protocol:
6.1 change the title of the draft protocol to “Convention on the avoidance of statelessness in relation to state succession” and replace the word “protocol” by “convention” throughout the text;
6.2 amend sub-paragraph e of Article 1 (“Definitions”) to read “‘Person concerned’ means every individual who, at the time of the state succession:
has the nationality of the predecessor state and is or would become stateless as a result of the state succession,
is lawfully and habitually resident on the territory subject to succession and is stateless at the time of the succession”;
6.3 replace Article 4 (“Non-discrimination”) with the following text: “States concerned shall not discriminate against any person concerned on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”;
6.4 amend Article 5.1 by replacing “A successor state shall grant its nationality to” by “The nationality of the successor state shall be acquired by”;
6.5 after Article 5.2.c add a new sub-paragraph worded as follows: “descent from or marriage to a person covered by this article”;
6.6 add a new paragraph 3 to Article 5 worded as follows: “The nationality of the successor state shall also be acquired by those persons who, at the time of state succession, are lawfully and habitually resident on the territory subject to succession and are stateless at the time of the succession”;
6.7 at the beginning of Article 7 add a new sentence worded as follows: “The states concerned shall take account of the will of the persons concerned whenever these persons fulfil the conditions for obtaining the nationality of two or more states”;
6.8 at the end of Article 7 add a new sub-paragraph worded as follows: “The acquisition of the nationality of a successor state or the choice of the nationality of the predecessor state or of one of the successor states according to the will expressed by the person concerned shall not have detrimental consequences for those opting to do so, particularly in respect of their right to reside on the territory of the successor state or of their movable or immovable property situated there.”;
6.9 after Article 7 add a new article worded as follows: “Effective date – The acquisition of nationality in relation to state succession, as well as the acquisition of nationality following the exercise of an option, shall take effect on the date of such succession, if the person concerned would otherwise be stateless during the period between the date of the succession of states and such acquisition of nationality.”;
6.10 amend Article 8.2 by replacing “before granting its nationality to” by “before attributing the nationality to”;
6.11 replace Article 10 with the following sentence: “The nationality of a state concerned shall be acquired ex lege by a child of a person concerned born on the territory of a state concerned, and at birth if that child would otherwise be stateless.”;
6.12 after Article 10 add a new article worded as follows: “Legislation and regulations on nationality – States concerned should, without undue delay, enact legislation and regulations on nationality relating to state succession.”;
6.13 replace Article 11 by the following text: “States concerned should without delay take all appropriate measures to ensure that persons concerned will be apprised fully and within a reasonable time period, of the effect of the regulations and procedures with regard to their nationality, of any choices they may have thereunder, as well as of the consequences that the exercise of such choices will have on their status.”;
6.14 after Article 11 add a new article worded as follows: “Right to an effective remedy – The decisions taken by the state concerned in respect of requests relating to the acquisition, retention, deprivation or withdrawal of nationality or refusal to grant it or in respect of the exercise of an option on the occasion of state succession shall be notified in writing; persons concerned have the right to an effective administrative or judicial remedy.”;
6.15 replace the whole of Article 19 with the following: “No reservations may be made to the present convention.”
