Duty to Inform
An interesting source relating to this guideline is the UN International Law Commission’s Draft Articles on Nationality of Natural Persons in Relation to the Succession of States from 1999.6 The Draft Articles require all appropriate steps to be taken to ‘ensure persons concerned will be informed, within a reasonable time period, of the effect of its legislation on their nationality’ (Art. 6). It is not unreasonable to assume that it would be valid also in the event of exit from international organisation such as the EU. The rationale of the duty to inform is that persons concerned ‘should not be reduced to a purely passive role as regards the impact of the succession of States on their individual status or confronted with adverse effects of the exercise of a right of option of which they could objectively have no knowledge when exercising such a right.’7 The Draft Articles are not binding and, after deferral, the topic has disappeared from the UN general assembly’s agenda. This source may nonetheless be said to provide relevant guidelines.
In event of Brexit, the UK would need to inform persons concerned, that is, both second country nationals in the UK and British nationals in the Union of ‘the effect of its legislation on their nationality.’ This duty to inform does not seem to have been considered. It can be read as a limit to using citizens of either side as ‘bargaining chips in negotiations’ contrarily to suggestions made by several British politicians, including Theresa May, at the end of June and repeated on several occasions. This position was not modified in the speech on the Brexit plan delivered at Lancaster House 17 January 2017. Indeed, merely leaving it up for behind closed-door negotiations to settle the issue would potentially deprived ‘persons concerned’ of knowledge of ‘the effect of [the] legislation on their nationality.’ Exchange of information and consultations between States are fundamental to identify the negative consequences that may arise for the status of the persons concerned and for the issues linked to the status. There is an ‘obligation’ - of positive morality, to use Austin’s phrase - to provide clearness on nationality matters (promotion of legal certainty) so as to reduce the number of potential hard cases and secure, as far as possible, rights acquired under the previous legal setting.