¹ Address to the nation by Prime Minister Jean Chrétien, Oct. 25, 1995, http://pm.gc.ca/cgi-win/pmo_view.dll/ENGLISH?91+o+NORMAL.

² Angus Reid Group, The Sovereignty Debate: Public Attitudes on the Desirability of Selected Arrangements between Canada and an Independent Quebec, Oct. 21, 1995, http://www.angusreid.com/pressrel/qubcsov.html.

³ In Canadian law, possession of a passport is not, without more, proof of nationality: Varin v. Cormier (1937), 69 C.C.C. 142, 3 D.L.R. 588 (Que. S.C.); Zidarevic v. Canada (Minister of Citizenship and Immigration) (1995), 27 1mm. L.R. (2d) 190, 90 F.T.R. 205. But note the Canadian Passport Order, SI/81-86,5.4(2): “No passport shall be issued to a person who is not a Canadian citizen under the [Citizenship] Act.”

⁴ “The Law of Nationality” (1929) 23A.J.I.L. 13 at 15.

⁵ Crawford, James, The Creation of Statehood in International Law 41 (Oxford: Clarendon Press, 1979Google Scholar). Brownlie considered that “the evidence is over whelmingly in support of the view that the population follows the change of sovereignty in matters of nationality”: see Brownlie, Ian, “The Relations of Nationality in Public International Law” (1963) 39 British Year Book of International Law 284 at 320Google Scholar. O’Connell and Weis have both denied that the successor state is obliged to extend its nationality to inhabitants of the transferred territory, while recognizing that in practice this is what usually occurs. See O’Connell, D. P., State Succession in Municipal Law and International Law I, 503 (Cambridge: Cambridge University Press, 1967)Google Scholar; Weis, P., Nationality and Statelessness at International Law (2d ed., Arphen aan den Rijn: Sijthoff and Noordhoff, 1979) at 144Google Scholar. The works of both writers are somewhat dated, and it is arguable that the prohibition of statelessness has since become customary international law, which imposes an obligation on states to extend their nationality at least to those inhabitants of transferred territories who would otherwise be stateless. See the discussion in Chan, Johannes M. M., “The Right to a Nationality as a Human Right: the Current Trend towards Recognition” (1981) 12 Human Rights L.J. 1 at 11-2Google Scholar.

⁶ Onuma, Yasuaki, “Nationality and Territorial Change: In Search of the State of the Law” (1981) 8 Yale J. of World Public Order 1 at 26Google Scholar.

⁷ Graupner has argued that the principle of automatic change does not apply to British subjects in the event of separation. “British subjects can lose their nationality … on the occasion of secession [but] the historical occurrence does not by itself bring about this effect…. [R]elease by the Crown or by Act of Parliament is required.” The recognition of the independence of the territory is enough to effect this release. (Graupner, R., “British Nationality and State Succession” (1945) 61 L.Q.R. 161 at 169)Google Scholar. Graupner, cites Doe d. Thomas v. Acklam, [1824] 2 B. & C. 779Google Scholar; Doe d. Auchmuty v. Mulcasler, [1826] 5 B. & C. 771; Murray v. Parkes, [1942] 2 K.B. 123.

⁸ International Law Commission, “Nationality in Relation to the Succession of States” in Annual Report of the International Law Commission (A/52/10) (1997) 11 at 38, comment (4).

⁹ O’Connell, supra note 5 at 1:518.

¹⁰ See Onuma, supra note 6 at 4; Chan, supra note 5 at 11; Kunz, J. L., “L’option de la nationalité” (1930) I Recueil des cours 111 at 113Google Scholar. See also Szlechter, E., Les options convenlionelles de nationalité à la suite de cessions de territoires, ch. 1 (Paris: Recueil Sirey, 1948)Google Scholar; and Kunz, J. L., Die Völkerrechtliche Option, vol. 1, 31–32 (Breslau: F. Hirt, 1925)Google Scholar.

¹¹ Onuma, supra note 6 at 5.

¹² Ibid., 11.

¹³ Ibid., 29.

¹⁴ This has been the case most often when the option was granted to those born in the transferred territory but no longer resident there (ibid., 5-6).

¹⁵ Kunz, “L’option de nationalité,” supra note 10 at 121.

¹⁶ Other early treaties containing beneficium emigrandi clauses include the treaties of Breda (1667), Ryswick (1697), Utrecht (1713), Nystadt (1721), Berlin (1742), Paris (1763), and so on. See Kunz, , Die Völkerrechtliche Option, supra note 10 at vol. 1,37–57Google Scholar.

¹⁷ Rousseau, C., Droit international public: Les compétences, vol. 3, 366 (Paris: Sirey, 1977)Google Scholar.

¹⁸ Kunz, “L’option de nationalité,” supra note 10 at 115-16.

¹⁹ Ibid., 117.

²⁰ Donner, Ruth, The Regulation of Nationality in International Law 256 (2d ed., Irvington-on-Hudson: Transnational, 1994)Google Scholar; Kunz, , “L’option de nationalité,” supra note 10 at 129.Google Scholar

²¹ Treaty of Versailles, 1919, arts. 85, 91; Treaty of Lausanne, 1923, arts. 23, 32; Treaty of Trianon, 1920, art. 65; Treaty of Neuilly, 1919, art. 40; Treaty of St-Germain, 1919 art. 80.

²² Treaty of St-Germain, supra note 21, art. 80.

²³ Thus, the definition of nationality in Oppenheim: “The nationality of an individual is his quality of being subject of a certain state": Jennings, Sir Robert and Watts, Sir Arthur, eds., Oppenheim’s International Law, 9th ed., vol. 1, 851 (9th ed., London: Longman, 1992)Google Scholar [hereinafter Oppenheim], As Czaplinski recently put it, “La nationalité constitue le lien entre l’individu et son État, non pas entre une personne et sa nation ethnique” (Czaplinski, W., “Commentaires de Wla-dyslaw Czaplinski” in Decaux, E. and Pellet, A., eds., Nationalité, minorités et succession d’Etats en Europe de l’Est 66 (Paris: Montchrestien, 1996)Google Scholar. Art. 2(a) of the European Convention on Nationality, 1997, reads, “For the purpose of this Convention … ‘nationality’ means the legal bond between a person and a State and does not indicate the person’s ethnic origin.” Note, however, the definition of nationality in Nottebohm as “a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties”: Nottebohm case, [1955] ICJ Rep. 4 at 23. This definition is not explicitly ethnic, to be sure. But it suggests a stronger connection between individual and state than those cited above.

²⁴ Rousseau, supra note 17 at 371.

²⁵ Italian Peace Treaty, 1947, art. 19(2). See Kunz, J. L., “Nationality and Option Clauses in the Italian Peace Treaty 1947” (1947) 41 A.J.I.L. 622–31Google Scholar.

²⁶ Convention entre la France et le Viet-Nam sur la Nationalité, 1955, arts. 4-15; Donner, supra note 20 at 274-6.

²⁷ Law on Citizenship of the Slovak Republic, 1993, art. 3(1). Other recent instances of option provisions include: the Law on Nationality of the Russian Federation, 1994, art. 18(9); the Czech Law on Acquisition and Loss of Citizenship, 1992, art. 18.

²⁸ “It has been customary … at least since 1785 [date of the Franco-Spanish Treaty of Elisson], to permit such option, and in very few historical instances of cession has the right to opt been denied” (O’’Connell, supra note 5 at 529). Weis, supra note 5 at 159 notes the “widespread but not universal treaty practice” of granting options. See also Emanuelli, C., “L’accession du Québec à la souveraineté et la nationalité” (1992) 23 Revue générale de droit at 519, 52931CrossRefGoogle Scholar. Szlechter’s impressive survey of 122 option-granting treaties from 1640 to 1947, supra note 10, demonstrates how widespread the practice of granting options has been.

²⁹ Kunz, “L’option de nationalité,” supra note 10 at 122 (my emphasis).

³⁰ O’Connell, supra note 5 at 529.

³¹ “It cannot be concluded… that there exists a rule of international law imposing a duty on the States concerned in a transfer of territory to grant to the inhabitants of the transferred territory a right of option to decline (or acquire) the nationality of those States”: Weis, supra note 5 at 159-60.

³² See, e.g., Emanuelli, supra note 28 at 531; Mikulka, V., “L’incidence des règles internationales de la nationalité” in Decaux, E. and Pellet, A. (eds), Nationalité, minorités et succession d’États en Europe de l’Est 11 at 21 (Paris: Montchrestien, 1996)Google Scholar.

³³ Talleyrand quoted in Donner, supra note 20 at 255.

³⁴ Westlake, J., “The Nature and Extent of Title by Conquest” (1901) 17 L.Q.R. 392 at 399.Google Scholar;

³⁵ Weis, supra note 5 at 160.

³⁶ Kunz, “L’option de nationalité,” supra note 10 at 122-23; Guyomar, Geneviève “La succession d’Etats et le respect de la volonté des populations” (1963) 67 Revue générale de droit international public 92Google Scholar.

³⁷ Arbitration Commission of the Conference on the Former Yugoslavia (Badinter Commission), Opinion No. 2,Jan. 11, 1992. Reprinted in (1993) 92 I.L.R. 167 at 168.

³⁸ See Gowlland-Debbas, Vera, ed., The Problem of Refugees in the Light of Contemporary International Law Issues 46-8, 56-7 (The Hague: Martinus Nijhoff, 1996)Google Scholar.

³⁹ Pellet, A., “Note sur la Commission d’arbitrage de la conférence européene pour la paix en yougoslavie” (1991) 37 Annuaire français de droit international 329 at 341CrossRefGoogle Scholar.

⁴⁰ Part 2 of the Treaty on European Union, 1992, arts. 8-8(e), established “citizenship of the Union,” though this citizenship has so far turned out to be rather weak. See R v. Secretary of State ex parte Vitale and ex parte Do Amaral, [1995] All E.R. (EC) 946; Case C-193/94 Skanavi, [1996] ECR I-929; Case C-85/96 Martinez Sala v. Freistaat Bayern, judgment of May 12, 1998, not yet reported (noted [1998] C.L.J. 461). But compare with R v. Secretary of State ex parte Adams, [1995] All E.R. (EC) 177.

⁴¹ Mikulka, V., “The Dissolution of States and Refugees” in Gowlland-Debbas, Vera, ed., The Problem of Refugees in the Light of Contemporary International Law Issues 35 at 48 (The Hague: Martinus Nijhoff, 1996)Google Scholar.

⁴² Danelius, H. and Pekkanen, R., “Human Rights in the Republic of Estonia” (1992) 13 Human Rights L.J. 236 at 239Google Scholar. This Report was commissioned by the Parliamentary Association of the Council of Europe (Doc. AS/Ad hoc-Bur-EE (43) 2 of Dec. 17, 1991).

⁴³ Crawford notes that Art. 15 “has not so far been reflected in international instruments of universal scope, or even, for that matter, in most of the regional human rights instruments” (Crawford, James, “Territorial Change and the Status of Inhabitants” (1986) 27 Seoul L.J. 734 at 48)Google Scholar. Two other instruments asserting “the right to a nationality” are the Inter-American Convention on Human Rights, 196g (Art. 20) and the European Convention on Nationality, igg7 (Art. 4(a)).

⁴⁴ The use of the term “citizenship” here is unfortunate. The term “nationality” is preferred in international law, and to speak of citizenship in this context risks implying a distinction between the two terms that, given the context, cannot have been intended.

⁴⁵ Indeed, if Franck’s argument — we might call it a prediction — proves true, it will seem increasingly arbitrary for international law to allow for the right to acquire a particular nationality only in cases of state succession. This evokes an image of the future in which individuals will be able successfully to claim a state’s nationality on no better ground than that they would quite like to have it. This seems improbable. But then it may not be, in a future of open borders, common markets, universal human rights, and general political integration — that is, in a world where the significance of national legal jurisdiction has greatly diminished. See Franck, Thomas M., “Clan and Superclan: Loyalty, Identity and Community in Law and Practice” (1996) 90 A.J.I.L. 359 at 359-60Google Scholar.

⁴⁶ International Law Commission, “Nationality in Relation to the Succession of States” in Annual Report of the International Law Commission (A/52/10) (1997) at 11. References to the Commentary to the Draft [hereinafter Cmt] give the comment number and the related article, followed by the page number in parenthesis.

⁴⁷ Cmt (1) to Art. 19 (72).

⁴⁸ Cmt (6) to Art. 10 (52).

⁴⁹ Cmt (6) to Art. 10 (52).

⁵⁰ Cmt (8) to Art. 10 (52).

⁵¹ Art. 14 occurs in the first part of the Draft.

⁵² Supra note 37.

⁵³ Cmt (5) to Axt. 20 (75).

⁵⁴ The phrase used in Art. 22(b)(1) is persons who “are not covered by subparagraph (a),” where subparagraph (a) applies to persons “having their habitual residence” in the territory of the state in question. This same construction is used in Arts. 24(b) (i) and 25(2) (b). The drafting here is unfortunate, because while these provisions are plainly intended to apply to persons resident in some part of the old state’s territory, the wording suggests they might also apply to persons resident in third states. This is clearly not so, however, because such persons are provided for specifically in Arts. 22(b) (ii), 24(b) (ii), and 25(2)(c).

⁵⁵ Art. 24(b)(i).

⁵⁶ Cmt (9) to Art. 23 (83-4); referred to in Cmt (8) to Arts. 24-6 (90).

⁵⁷ Art. 25(b).

⁵⁸ This is the effect of the Art. 25(2) phrase: “Subject to the provisions of article 26.”

⁵⁹ Under Canadian law (Citizenship Act, R.S.C. 1985, c. C.29), the acquisition of another nationality does not cause a citizen to lose Canadian nationality. In theory, then, no option of retaining Canadian nationality would be required, for Québec nationals would not lose it. It is almost certain, however, that Canada would amend its law to prevent the people of secessionist Québec from retaining Canadian nationality. It is arguable that international law would oblige Canada to do so: see Weis, supra note 5 at 147; Austro-German Extradition case, [1956] 23 I.L.R. 364 at 366; In re Faner, [1956] 23 I.L.R. 367 at 369. The new citizenship law would have to be drafted carefully so as to avoid being discriminatory against Québec nationals (see Turp, Daniel, “Citoyenneté québécoise, citoyenneté canadienne et citoyenneté commune selon le modèle de l’Union européenne” in Kaplan, William, ed., Belonging: The Meaning and Future of Canadian Citizenship 164 at 167 (Montreal: McGill-Queen’s University Press, 1993)CrossRefGoogle Scholar. The amendments must have three objectives: ( 1 ) the withdrawal of Canadian nationality from those Canadians who acquire Québécois nationality, subject to whatever right of option may be provided; (2) the prohibition of the retention of Québécois nationality by those individuals who acquire or are eligible for Québécois nationality but opt to retain their Canadian nationality; (3) the subsequent acquisition of Canadian nationality by Québec nationals on the same terms as are applied to other foreign nationals.

⁶⁰ Cmt (6) to Art. 10 (52).

⁶¹ That being said, the right of option provided by Art. 26 is so limited in scope that it seems likely states would observe it, if the Draft were to come into force.

⁶² Cmts (5)-(7) to Arts. 22-3 (81-83).

⁶³ Earlier versions of the Draft were explicit about these meanings. For example, Art. 24(1) (b) of the “Third Report on State Succession and its Impact on the Nationality of Natural and Legal Persons” (A/CN.4/480) reads: “where the predecessor State is a State in which the category of secondary nationality of constituent entities existed, persons not covered by paragraph (a) who had the secondary nationality of an entity that remained part of the predecessor State, irrespective of the place of their habitual residence.”

⁶⁴ O’Connell, supra note 5 at 533, note 2, lists 23 treaties that provided for the expulsion of optants between 1797 and 1923.

⁶⁵ This distinguishes expulsion from extradition, which is done by the agreement of the sending and receiving states: Oppenheim, supra note 23 at 940, note 1.

⁶⁶ Ibid., at 940, 945, note 3.

⁶⁷ [1924] 2 Annual Digest of Public International Law 292.

⁶⁸ Donner, supra note 20 at 258; Rousseau, supra note 17 at 370.

⁶⁹ Oppenheim, supra note 23 at 685.

⁷⁰ Cmt (6) to Art. 13 (61).

⁷¹ Cmt (5) to Art. 13 (60).

⁷² Cmt (5, note 94) to Art. 13 (60).

⁷⁴ European Convention on Nationality, 1997, ETS No. 166, Art. 20(1). See the Council of Europe’s website at http://www.coe.fr/eng/legaltxt/166e.htm.

⁷⁴ Declaration on the Consequences of State Succession for the Nationality of Natural Persons (the Venice Declaration), Art. 16. Adopted by the European Commission for Democracy through law in Sept. 1996. Council of Europe Document CDL-NAT (96) 7 rev.

⁷⁵ See the Council of Europe website at http://www.coe.fr/tablconv/166t.htm.

⁷⁶ Turp, supra note 59 at 167.

⁷⁷ Austria-Czechoslovakia Minorities Treaty, 1920, Art. 13.

⁷⁸ As of July l, 1997: Statistics Canada (www.statcan.ca/english/Pgdb/People/Population/dem002.htm).

⁷⁹ Fee, Margery, Guide to Canadian English Usage 404 (Toronto: Oxford University Press, 1997)Google Scholar.

⁸⁰ (1980) 26 Keesing’s Contemporary Archives 30464A; (1995) 41 Keesing’s Record of World Events 40766.

⁸¹ 7,419,900 on July 1, 1997: Statistics Canada, supra note 78.

⁸² (1995) 41 Keesing’s Record of World Events 40766.

⁸³ Several territorial disputes following the First World War were resolved by plebiscite. These include the plebiscites in: Schleswig (1920), East Prussia (1920), Eupen and Malmédy (1920), Klagenfurt (1920), Upper Silesia (1921), Sopron (1921), and the Saar (1935). The practice of resorting to plebiscites declined after the Second World War, but there is one Canadian precedent: Great Britain consulted the people of Newfoundland as to the future of their colony in 1948. They voted to join Confederation.

⁸⁴ Kunz, , “L’option de nationalité,” supra note 10 at 122-23 (his emphasis).Google Scholar

⁸⁵ Guyomar, supra note 36 at 93.

⁸⁶ Ibid.

⁸⁷ See the Treaty of Versailles, 1919, Art. 113; the Treaty of St-Germain, 1919, Art. 70.