SIXTH COMMITTEE CONTINUES DISCUSSING REPORT OF INTERNATIONAL LAW COMMISSION
Press Release
GA/L/2873
SIXTH COMMITTEE CONTINUES DISCUSSING REPORT OF INTERNATIONAL LAW COMMISSION
19951026 In situations of State succession, the right of an individual to choose between two nationalities should be governed by agreements between the States concerned, the representative of Slovenia told the Sixth Committee this morning, as it continued discussing the report of the International Law Commission.The general obligation on the part of States to render the right of option to individuals in cases of State succession did not exist under international law, she said. Common basic principles of the Vienna Conventions on treaties and on the succession of States should apply to State property, archives and debts.
The representative of France said that State succession was primarily a matter for national, not international law. The Commission should establish a complete inventory of State practice in the area of nationality and succession.
On the topic of reservations to treaties, Japan said that the decision of the International Law Commission not to change the reservations rules contained in the Convention on the Law of Treaties, and to simultaneously compile guidelines for practice was a balanced approach which would safeguard the present legal framework.
The representative of Iran said the right to make reservations to treaties was a sovereign right enjoyed by every State. It would be irrational to expect governments not to insist on the protection of their national interests; it was also sensible to assume that governments would not disengage themselves from essential obligations emanating from a treaty while becoming party to it. Iran was not convinced that classical rules relating to reservations were inadequate with respect to human rights treaties.
Greece said gaps should be filled in the laws of treaties. A major lacuna was the practice of "late reservations" -- reservations filed after accession to treaties.
Also speaking this morning were the representatives of Bahrain, Jamaica, China, Spain and Burkina Faso.
The Committee will meet again at 10 a.m. tomorrow, 27 October, to continue its discussion of the report of the International Law Commission.
Committee Work Programme
The Sixth Committee (Legal) met this morning to continue consideration of the report of the International Law Commission (document A/50/10). Today, it was expected to continue debate on chapters on State succession and reservations to treaties.
The issue of reservations to treaties was discussed during this year's session of the Commission, with a view of facilitating countries' accession to multilateral treaties of general interest.
The report also states that law and practice relating to State succession and its impact on the nationality of natural and legal persons were discussed in the Commission for the first time this year. The Commission based its work on State succession on the premise that every person had the right to a nationality and that States had an obligation to prevent statelessness.
The report of the working group on State succession contained in the annex to the document states that the working group recommended that the following potential effects of succession be addressed: dual nationality; the problem of the separation of families as a result of the attribution of different nationalities to their members; military obligations, pensions and other social security benefits and the right of residence.
Also before the Committee, was the note by the Secretary-General (A/50/402), containing the draft articles adopted by the Commission on the issues of State responsibility and international liability for injurious consequences arising out of acts not prohibited by international law.
(For background information, see Press Release GA/L/2863 of 12 October.)
Statements
HUSAIN M. AL-BAHARNA (Bahrain), speaking about the draft code of crimes against mankind, said it had been argued that "crimes on which there was insufficient existing practice or which were mainly of historical significance should be excluded in order to ensure the widest possible acceptance of the code". He called for the harmonization of the provisions of the draft code and the draft statute of the proposed international criminal court, to help achieve a more coherent and integrated system.
The draft code of crimes should contain a separate definition for each crime in the new texts of draft articles, he said. The code would be an effective and complete legal instrument only if it included the three elements of crimes, penalties for each crime and jurisdiction. The penalties for each
Sixth Committee - 3 - Press Release GA/L/2873 22nd Meeting (AM) 26 October 1995
crime contained in the draft code should be known in advance by the would-be perpetrators.
He supported the inclusion of the proposed six crimes in the code and the deletion of draft articles on intervention, threat of aggression and recruitment of mercenaries. However, more refinements in the definitions of some of the crimes should be provided. He also hoped that the question of deleting the articles on international terrorism and illicit drug trafficking would not arise in the future.
PATRICK ROBINSON (Jamaica) said the decision of the International Law Commission to reduce the number of crimes in its draft code of crimes from 12 to six had been too drastic. That decision seemed to reflect a developing view that the Commission should concentrate more on codification than on the progressive development of international law. The Commission would not be properly discharging its mandate if it merely "played it safe". It should concentrate on the progressive development of law and not merely echo the views of governments. Crimes such as apartheid, colonial domination, intervention and wilful and severe damage to the environment should have a place in the code. A compromise approach might be to include in the code a provision for amendment, whereby crimes might be added or removed, allowing for international developments to influence the list.
An international court -- such as that being contemplated by the General Assembly's ad hoc committee -- would better manage and implement a code of international crimes than would national courts. The code should take the form of an international convention rather than a declaration of guidelines because of the need for precision and binding rules. The draft code pointed out that while it aimed to assign individual criminal responsibility, such a finding would be without prejudice to any State responsibility under international law.
Regarding the crime of aggression, he said that while it had been criticized for being too political, General Assembly resolution 3314 of 1974, which had defined aggression, offered the best practicable approach. A Security Council determination would be a political judgement. A decision by a tribunal would have a juridical basis.
CHEN SHIQIU (China) said that the concept of international liability had been formed as a result of advances in modern science and technology and industrial development. There was already enough State practice and jurisprudence in that respect. Despite the fact that there had always existed different views and conflicting sentiments regarding the concept of liability, international practice and practical needs had brought that issue to the fore and called for new legal principles. Two important issues remained to be resolved by the International Law Commission; the scope of the draft articles
Sixth Committee - 4 - Press Release GA/L/2873 22nd Meeting (AM) 26 October 1995
and the definition of "harm".
The scope of the draft articles at present was overly vague. The Commission should draw up a list of activities and materials which might cause significant transboundary harm. It did not have to be exhaustive, but the draft articles could include a provision for periodic updating. As to defining harm, the report called for special attention to be paid to harm to the environment. Such damage should be remedied first and foremost by restoration. In cases where restoration was impossible, monetary compensation should be assessed, based upon the cost of restoration.
Under the Vienna Convention on the Law of Treaties, a State party to any convention had the right to formulate reservations consistent with the purposes of the convention. Other States parties had the right to express acceptance or opposition to those reservations. That approach would serve to uphold the purposes and objectives of conventions and promote their universality.
Certain conventions specifically prohibited reservations, he noted. States parties to those conventions often made statements or interpretative declarations at the time of signing -- something that amounted to the same thing as reservations. Appropriate solutions to those questions were critical to developing a sound legal regime. Further clarification of treaty rights and obligations of States parties needed further clarification.
Regarding State succession and its impact on the nationality of natural and legal persons, he said that the topic transcended three fields of law -- domestic law, private international law and public international law. The emergence of new States following the end of the cold war brought to the fore the question of nationality resulting from State succession, an issue of special international concern. The question of nationality was primarily one of domestic law -- States had the sovereign right to decide who was and who was not its national. But there was also the need to take into account factors pertaining to international law. That issue needed to be properly resolved so as to avoid conflicting nationality, dual or multi-nationality, and the problem of statelessness.
SAEID MIRZAEE YENGEJEH (Iran) said that reservation to treaties was an integral element of contemporary international law. The right to make reservations and to become party to multilateral treaties subject to such reservation was the sovereign right enjoyed by every State under international law. The regime created by the Vienna Convention on the Law of Treaties had reconciled two fundamental requirements -- the need to facilitate, as far as possible, ratification or accession to multilateral treaties of general interest; and the need to recognize the right of States, on becoming parties to treaties, to preserve their positions on certain points due to religion,
Sixth Committee - 5 - Press Release GA/L/2873 22nd Meeting (AM) 26 October 1995
culture or deep-seated traditions.
It would be irrational to expect governments not to insist on the protection of their national interests after the adoption of a treaty, in the form of reservations, as they often did in the final stages of treaty-making, he continued. It was also sensible to assume that governments would not disengage themselves from essential obligations emanating from a treaty while becoming party to it. It was wise to preserve those rules that had thus far operated fairly well, irrespective of their possible ambiguities. The Commission's task should be to fill the gaps and to clarify ambiguities inherent in them.
As to reservations to human rights treaties, the International Law Commission had rightly decided in 1966 to refuse exceptional treatment for certain kinds of treaties. The adoption of the Commission's recommendations by the Vienna Human Rights Conference had been a step in the right direction. Iran was not convinced that classical rules relating to reservations were inadequate with respect to human rights treaties.
CHUSEI YAMADA (Japan) said the subject of international liability had been taken up as a separate topic by the Commission for 17 years. Yet, the Commission had not been able to make a final decision on the precise scope of that topic, and on the nature of either the article to be drafted, or the eventual form of the instrument that would emerge from its work.
The core of the topic must be none other than liability, he continued. The Commission should speed up its work to complete the draft articles on both prevention and liability in respect of activities involving a risk of transboundary harm. The article on the freedom of action and limits constituted the basis of the entire topic. That draft article subjected States to general obligations. Higher level prevention could be achieved through specific obligations which States might set by mutual agreement.
The draft article on prevention stipulated the obligation of due diligence, he continued, which made it obligatory for States to take all legislative, administrative or other unilateral measures in order to prevent or minimize the risk of significant transboundary harm. The draft article on liability and reparation remained silent on what liability and reparation the States were required to bear. He expressed the hope that the Commission would make progress on that aspect, for it was doubtful, how well State liability for hazardous activities was established as a general principle under international law.
On State succession, he said that the issues of nationality of natural persons and that of legal persons should be separated. His delegation considered it a reasonable working hypothesis that in order to prevent
Sixth Committee - 6 - Press Release GA/L/2873 22nd Meeting (AM) 26 October 1995
statelessness, predecessor and successor States had an obligation to negotiate and to resolve through agreement problems of nationality arising from State succession. Regarding the final form of the instrument resulting from the work of the Commission, he said that a declaration setting forth general principles might be the most realistic course for the subject.
On the topic of reservations to treaties, he said that at present, the rules of the Convention on the Law of Treaties were functioning effectively, and innumerable State practices had already developed on the basis of those rules. The position of his Government was that unnecessary confusion should not be invited by revisiting those rules. On the other hand, many problems were arising in practice in the areas that were not given clear stipulation in the Convention on the Law of Treaties. Accordingly, the Commission's decision not to change the rules concerning reservations of the Convention and to compile detailed guidelines for practice in respect to reservations was a balanced approach. It would safeguard the present legal framework and seek a solution to existing problems.
JOSE ANTONIO PASTOR RIDRUEJO (Spain) speaking about the effect of State succession on the nationality of legal persons, said it should be addressed separately from the nationality of natural persons. The natural persons encountered the greatest risk in cases of State succession. The Commission should determine special responsibility of the predecessor State and successor State regarding nationality.
The impact of State succession could also be addressed within the framework of diplomatic protection, which was to be included in the programme of work of the Commission in the future, he continued. The work of the Commission should result not in a set of articles to become a convention, but in an instrument containing a set of guidelines or model clauses to be used by States confronted with problems of nationality deriving from State succession.
Regarding reservations to treaties, he said the solutions had been proposed to that problem. The topic of reservations had to take into consideration the accessibility of treaties and their universality. As was proposed, it was necessary to preserve the regime contained in the 1969 Vienna Convention on the Law of Treaties. Challenging already existing rules would seriously harm the need for legal certainty. As the text of the Convention contained some gaps and ambiguities, the set of guidelines proposed by the Commission would be useful. The Commission should also address the reservations to treaties on human rights, which should be governed by the general principles of international law.
HILAIRE SOULAMA (Burkina Faso) said the Commission was expanding its activities as the international reality changed. Lately, the work of the Commission had not led to the elaboration of conventions or treaties.
Sixth Committee - 7 - Press Release GA/L/2873 22nd Meeting (AM) 26 October 1995
Wilful and severe environmental damage had been excluded from the draft code of crimes without sufficient reason, he continued. Such exclusion led to the question of what level of environmental catastrophe would result in rigorous examination and legal codification of environmental damage. Some kinds of damage to the environment should be included in the code.
HUBERT LEGAL (France) said that State succession was primarily a matter for national, not international law. It was up to each State to determine who their nationals were. The Commission should distinguish between codification and the progressive development of law. Restrictions on the freedom of States as regards the granting of nationality were few. There were no international conventions establishing a general right to nationality, though the Universal Declaration of Human Rights -- which was not a convention, had made clear that no one should be deprived of a nationality. The Commission should establish a complete inventory of State practice in the area of nationality and succession. Most difficulties in that area were to be found in the matter of legal persons, as opposed to natural persons.
Regarding law and practice as it relates to reservations to treaties, he said that the Commission had taken up that topic before in the context of its discussions on the laws of treaties. But those laws were ambiguous and gave rise to legal uncertainties. The question of reservations to treaties was difficult. The basic approach of free accession by States and their right to make reservations should be maintained. Some international human rights bodies had raised very interesting questions as to reservations to human rights treaties; they deserved future study.
The distinction between an interpretative statement and a reservation should also be discussed further by the Commission, he continued. The most important question was whether the international reservations system was satisfactory. France had not signed nor ratified the Vienna Conventions on the Laws of Treaties because they had departed from customary international law. The system established by those agreements, which were generally respected rules of international law, should not be abandoned in favour of formulations recently raised by human rights bodies. Treaties, whatever their object, must be governed by the laws of treaties. Overly strict limitations on the right of reservation to international conventions could impede States' adherence to them.
MIRJAM SKRK (Slovenia) said that legal issues relating to nationality, which might arise as a consequence of State succession, were a matter of internal law, private international law and public international law. Slovenia agreed with the special rapporteur that common basic principles of the Vienna Conventions on treaties and on the succession of States in respect of State property, archives and debts, should apply to the future work of the International Law Commission. The work of the General Assembly in the area of
Sixth Committee - 8 - Press Release GA/L/2873 22nd Meeting (AM) 26 October 1995
State succession had been guided by issues raised by the dissolutions of multi-national federal States in Eastern Europe. If the Commission decided to devote future work to the practical problems of the nationality of natural persons, the optional protocol to the Convention on the Reduction of Statelessness of 30 August 1961, drafted by the Commission itself, would be the most suitable form of an instrument. The legal instrument eventually developed by the Commission should be in the form of a treaty.
The right of an individual to choose between two nationalities is a right that should be governed by agreements between the States concerned, she said. The right of option was not an attribute of self-determination, which was a collective human right. A general obligation on the part of States to render the right of option to individuals in cases of State succession did not exist. That had been confirmed by State practice after the two world wars in Europe. The right of option did not give legal ground to an individual to create double nationality, but to opt between two nationalities. Consequently, one nationality might be withdrawn if the individual opted for the other.
CONSTANTIN ECONOMIDES (Greece) said that State practice should be a fundamental element in any inquiry into prevailing rules of State succession. The most important goal to be achieved in cases of State succession was to ensure that all persons had a nationality. In all cases, successor States should grant their nationality to all nationals of the previous State resident in its new territory. Change of nationality in such a scenario would be automatic, collective and would take place at the moment of succession. Successor States might decline to grant its nationality to nationals of the predecessor State, to those persons who had no genuine connection with the successor State or whose residence there had been contingent upon national service. There should be no harmful consequences, including to property, for those persons choosing to retain the nationality of the predecessor State.
There was a paucity of law as regards the effect of State succession and the nationality of legal persons. As a general rule, those legal persons having their headquarters in the territory of the successor State should take that State's nationality.
Regarding State practices as regards reservations to treaties, he said that gaps should be filled in the laws of treaties. A major lacuna was the practice of "late reservations" -- reservations filed after accession to treaties.
* *** *