Right to Option
States involved in succession shall give consideration to the will ofpersons concerned especially nationals of the predecessor state. Article 18 of the European Convention on Nationality formulates a list of criteria to be taken into account in case of state succession, without indicating a principle for weighting these. One criterion to be reckoned with is ‘the will of the person.’ This source binds 13 member states, but not the UK. This guideline, however, also appears in other sources: Art. 24 and 25 of the Involuntary Loss of European Citizenship Draft Articles also provide for the predecessor state to deprive persons of ‘old’ citizenship in case they acquire the successor state’s nationality - ‘unless otherwise indicated by the exercise of a right of option? The possible consequences that may derive from the non-binding guideline centred on providing a right to option is less clear than the previous two guidelines. What would a right to option be in the Brexit case? In case of state succession within the EU, for example, Scotland, Flanders or Catalonia, the choice would be between Scottish and British, Flemish and Belgian or Spanish and Catalan membership. But in the case of Brexit it is unclear what ‘choice’ would imply. If honouring the international legal guideline were a priority - which it is not - a choice ought to be offered in view of easing naturalisation for UK nationals in certain member states.8 Being serious about this guideline might also mean that UK nationals in the remaining states should be offered the possibility of acquiring ‘predecessor status’ or the status in virtue of which they established themselves there in the first place, which might imply giving UK citizens around the EU some form of non-temporary right to stay. However, other legal positions linked to their prior Union citizenship status would not be covered, such as the anchorage of pensions to the EU system.
Occasionally, there is mention of protection of acquired rights for third country nationals; notwithstanding that, generally, nationals of countries not involved in the State succession yet residing in the territory of the successor State receive little or no attention. This category of people seems to be forgotten in most international instruments dealing with nationality and State succession: Neither the European Convention on Nationality nor the Convention on Avoidance of Statelessness in Relation to State Succession addresses the situation of nationals of third countries residing on the territory of the successor state.
Guayasen Gonzalez Marrero, who has recently completed a systematic study of international legal instruments pertaining to nationality in state succession scenarios, claims that, notwithstanding this general silence, the protection of the acquired rights of third country nationals may also be added: ‘Perhaps providing a right to opt for the nationality of the newly independent State could be seen as going too far, but at least it seems desirable to preserve their status as permanent residents’ (Gonzalez Marrero 2016, p. 110). One source to read in this direction is, for instance, the Venice Declaration of the Council of Europe that provides that where third country nationals are permanently settled on the territory, it may be possible for them to acquire the nationality of the successor state.9 In this light we ought to read Article 16 of the Venice Declaration: ‘The exercise of the right to choose the nationality of the predecessor state, or of one of the successor States, shall have no prejudicial consequences for those making that choice, in particular with regard to their right to residence in the successor state.’
Weighting in third country nationals into the equation concerning the right to option could mean, in the case of Brexit, that third country nationals who are family members of second country nationals in the UK are to be offered some leave to remain, even in cases not immediately covered by the domestic legislation.