Obsolete and Unjust: The Rule of Continuous Nationality in the Context of State Succession

Abstract

The traditional rule of diplomatic protection concerning the nationality of claims is the principle of 'continuous nationality': in order for a State to exercise diplomatic protection for a person, he/she must possess its nationality at the time of the commission of the internationally wrongful act and remains a national of that State at least until that State takes up his/her claim. In the context of State succession, the application of the rule of continuous nationality results in neither the continuator State nor the successor State being able to exercise diplomatic protection on behalf of an individual which suffered damage as a result of an internationally wrongful act committed before the date of succession. The present paper addresses the issue whether or not the traditional rule of continuous nationality should be applied in the specific context of succession of States where individuals lose their nationality involuntarily. In other words, does contemporary international law allow the successor State to take over the right to claim reparation on behalf of its new nationals even if they did not have its nationality at the time the damage occurred? The first section of this paper examines the content of the diplomatic protection rule of continuous nationality and, more specifically, its application in the context of State succession. We will then refer to the numerous authorities which have suggested that the rule of continuous nationality is not appropriate in the context of State succession as it leads to unjust results. Reference will be made to doctrine as well as the work of the International Law Commission on diplomatic protection and the Institut de Droit international. This paper will also examine the validity of the proposition that the successor State may claim reparation on behalf of its new nationals for pre-succession damages and the question of whether or not any exceptions exist. Finally, this paper will analyse relevant State practice and case law on the application of the rule of continuous nationality in the context of State succession. Cases examined include the Pablo Najera case before the France-Mexico Claims Commission, claims submitted to the Mixed Arbitral Tribunals established after the First World War, claims before the U.N.C.C., and the Panevezys-Saldutiskis Railway case decided by the P.C.I.J. The examples of State practice discussed are the 1952 reparation agreement between the Federal Republic of Germany and Israel, the Austrian Reconciliation Fund Law (2000) and several compensation programmes which were set up after the Second World War by the Federal Republic of Germany to compensate victims of Nazi persecutions. Our conclusion is that the traditional diplomatic protection rule of continuous nationality should not apply in the context of State succession. The successor State has the right to claim reparation on behalf of its new nationals against the State responsible for damage arising from an internationally wrongful act committed before the date of succession. This solution should prevail in all cases where the individual on behalf of whom the new successor State espouses the claim is still injured after the date of succession. The only exception being claims submitted by the successor State on behalf of its new nationals against their former State of nationality.