LEGAL COMMITTEE DISCUSSES NATIONALITY AND STATE SUCCESSION

27 October 1995

Press Release
GA/L/2875

LEGAL COMMITTEE DISCUSSES NATIONALITY AND STATE SUCCESSION

19951027 While the legal regime governing nationality and State succession was primarily a matter of national law, it must take place within the framework of International human rights standards, several members of the Sixth Committee (Legal) stated this afternoon in the continued discussion of the report of the International Law Commission.

The representative of Finland, speaking on behalf of the Nordic countries, said that recent trends indicated that practical arrangements, as compared to abstract principles, were most important in protecting stability in cases of a change in sovereignty.

Ukraine's representative said successor States had the obligation to grant their citizenship to all persons permanently residing on the transitional territory, except those possessing the citizenship of third States. He expressed opposition to the attempts of some successor States to absorb the population of other successor States through the artificial provision of their citizenship to those populations.

The representative of Bahrain said the Sixth Committee's consideration of State succession should focus on actual State practice. The Commission should especially consider solutions arrived at in Asia, Africa and the Caribbean in the post-colonial era, and more recently, in Eastern Europe.

Regarding the legal practices relating to reservations to treaties, the representative of Jamaica said that in the absence of treaty mechanisms to resolve disputes between parties on the validity of reservations, monitoring bodies, such as the Human Rights Committee, would assume the right to pass judgement.

The representative of Venezuela said that while the Vienna Conventions regime governing treaties had certain gaps, no new norms were needed. The Commission might consider developing model clauses that could be used by States.

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Also speaking this afternoon were the representatives of Cameroon, Australia, New Zealand, India, Guatemala, Guinea, Sri Lanka and the Republic of Korea.

The representative of Iran and of Austria spoke in exercise of the right of reply.

When the Sixth Committee meets again at 3 p.m. on Monday, 30 October, it is expected to begin consideration of the report of the Ad Hoc Committee on the Establishment of an International Criminal Court.

Committee Work Programme

When the Sixth Committee (Legal) met this afternoon, it was expected to conclude its consideration of the report of the International Law Commission (ILC) on the work of its forty-seventh session, which was held from 2 May to 21 July (document A/50/10).

During its forty-seventh session, the Commission examined State responsibility; the draft code of crimes against the peace and security of mankind; international liability for injurious consequences arising out of acts not prohibited by international law; law and practice relating to reservations to treaties; and the issue of State succession and its impact on the nationality of natural and legal persons.

For background information, see press release GA/L/2863 of 12 October.

Statements Made

PASCALINE BOUM (Cameroon) said the subject of State responsibility was one of the oldest on the agenda of the Commission. Little progress had been achieved in the ILC, as the draft on State responsibility was still in its first reading. She regretted the inclusion of provisions on countermeasures in the draft articles. She feared that in encompassing countermeasures in the draft, the Commission would open the door to numerous abuses and invite confusion on the issue.

The articles provided the States with means of settlement of disputes, including negotiation and arbitration, which should make it possible to settle a particular dispute without reverting to countermeasures. Freedom of choice, she continued, should not be violated by the draft article on obligatory arbitration. Some members of the Committee and of the ILC would like to postpone the decision on judicial consequences of crimes. She, however, supported the continuation of work on those provisions.

JAMES BAXTER (Australia) said the Commission should focus its efforts on formulating practical solutions to the problems identified in relation to reservations, some of which had been discussed in the report. The Commission should be commended on its approach that there should be no change in the relevant provisions of the 1969, 1978 and 1986 Vienna Conventions, but its work should be directed at filling gaps and clarifying ambiguities in those Conventions. Any modification of the Vienna Conventions was likely to lead to further uncertainty about the rules on reservations.

He supported the Commission's conclusion that the Committee should try to adopt a guide to the practice on reservations, taking the form of draft articles with commentaries. The preparation of model clauses for particular types of treaties to complement the draft articles would help States and international organizations in negotiating new treaties and would contribute to harmonizing international practice in that area. That approach was

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preferable to deciding now to prepare a new legal instrument on reservations. When a resolution of the issues got closer, the guidelines might be transformed into a convention or protocols. Until then, a guide of practice, with model clauses, seemed the most realistic form for the Commission's work.

Mr. Baxter expressed support for the Special Rapporteur's intention of looking specifically at human rights instruments. The question of reservations in human rights treaties had been one of the more controversial aspects of that area of the law of treaties. The question of whether special principles should apply to making and interpreting reservations related to human rights rules should be examined. He endorsed the Commission's proposed timing for considering the topic on reservations. Five years was reasonable for the preparation of a guide of practice, including model clauses where necessary.

Also, he said Australia supported the recommendation for the inclusion of the topic of "diplomatic protection" on the agenda. It also supported the proposal that a feasibility study should be undertaken on a topic relating to the law of the environment. An integrated approach might be needed on the prevention of the global environment's continuing deterioration.

PATRICK ROBINSON (Jamaica) said treaties constituted the most active means for the creation of international law. He went on to say that a reservation which in the view of one State was incompatible with the object and purpose of a treaty might not be viewed in the same way by another State. Thus, the view that an objection could only be made to a permissible reservation, could only be supported on the basis of a theoretical construct, because "impermissible" really meant "arguably permissible".

It was clear that in the absence of mechanisms in treaties to resolve disputes between parties as to the validity of reservations, the monitoring bodies, such as the Human Rights Committee, would arrogate to themselves the right to pass judgement on reservations to such treaties. He was not opposed to settlement of reservation disputes by a third party, but he questioned such settlement by a body which did not have that competence on the basis of any express or implied power under the relevant treaty.

He welcomed the identification of dispute settlement as one of the substantial issues arising out of the Committee's debate and said that many modern conventions, including the Convention on the Law of the Sea, provided examples of the misuse of interpretative declarations, which, in many cases, were disguised reservations. An interpretative declaration was, in fact, nothing more than a unilateral statement by a State, which gave other

parties an indication of how that State interpreted a particular treaty provision. But, unlike a reservation, an interpretative declaration was not

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capable of having any legal effect on the other parties, even if they raised no objection.

While his delegation might be prepared to consider a special regime of reservations for human rights treaties, he was doubtful about the wisdom of encouraging a growing list of areas in which treaties required special treatment.

HUSAIN M. AL-BAHARNA (Bahrain) said that in its discussion of State succession, the Commission should concentrate on recent State practice and actual solutions adopted by States, taking into account humanitarian aspects of the question. The principle that no person should become stateless as a result of succession was a fundamental legal and humanitarian principle. Although nationality was essentially a matter of national law, international law imposed certain restrictions on arbitrary actions by States. There was a need for a genuine link to be established between the person and the State of his nationality. The Commission should consider the right to a nationality as central to its work on the topic.

The Commission could only prevent innocent people from becoming hapless victims of a change of sovereignty by emphasizing human rights, international humanitarian law and humanitarian approaches to the problem. International law's responsibility was to preclude successor States from enacting legislation that was unfair and inequitable to persons affected by changes in sovereignty. Before formulating its principles governing State succession vis-a-vis nationality, the Commission should consider solutions arrived at in Asia, Africa and the Caribbean in the post-colonial era, and, more recently, in Eastern Europe.

The Special Rapporteur had agreed that the Commission should fix reasonable time limits for the exercise of the right of option as regarded citizens of successor States and their choice of nationality. But the fundamental principle of preventing statelessness should not be subject to the discretion of States.

Concerning reservations to treaties, he said the regime developed by the Vienna Conventions had on the whole functioned well. The Commission should be careful not to do anything that would derail that regime. The general trend today was in favour of an increasingly broad right of States to express reservations to treaties.

Bahrain opposed any approach inconsistent with the pragmatism of the Vienna Conventions. As to gaps in the Vienna Conventions, he wondered whether

the Commission would ever be able to define precisely such concepts as reservations that were "consistent" or "inconsistent" with the overall

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intention of the treaties. The Commission should concentrate on clarifying the Vienna Conventions.

FELICITY WONG (New Zealand) said the ways in which the International Law Commission and the Sixth Committee carried out their functions had become a central question of the development of international law within the United Nations framework. The special value of the Sixth Committee lay not in consideration of the detailed work of the Commission, but in providing it with policy guidance. There was a need to exchange policy views about each topic before the Commission in a less formal context.

NALIN SURIE (India) said international liability was an issue of responsibility of States engaged in activities detrimental to the environment. It was linked to the concept of control. Only the entity that had direct control over an activity should be responsible for its results. The liability of a State could be considered if it was the operator of activities. Such activities should be covered by insurance, which could be invoked in case of damage. A victim should not be left to absorb the consequences of harm.

In cases of State responsibility for harm done to other States, causes and effects should be firmly established. Any international liability regime should determine the threshold of damage leading to responsibility. It was important that that regime should not ignore the needs of developing countries, which represented the large majority of the world's population. Technology and funding should be provided for that purpose.

Speaking about reservations to treaties, he said that the Vienna Conventions on that issue should not be reopened. Certain ambiguities and gaps existed and it was up to States parties to determine the relationship between the reserving State and themselves. The Commission should not attempt to determine certain kind of treaties with respect to reservations. The Vienna Conventions should apply to all kinds of treaties uniformly. Human rights treaties should not be excepted.

On State succession, he said it was necessary to eliminate adverse effects of succession on populations. Needless generality or categorization should be avoided. Statelessness should be at the centre of discussion. Legal succession of corporate bodies should also be addressed.

FRANCISCO VILLAGRAN KRAMER (Guatemala) said the area of nationality and State succession had been properly addressed by the Commission. Certain elements had emerged very clearly. Any individual had a right to nationality, and no State could deprive him of that. The psychological factor of loyalty of an individual to a State was also important. Disappearance of a State should not lead to statelessness. He did not consider that there was complete freedom in the area of nationality and State succession. The right of option not only existed, but should be ensured by institutional machinery.

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Speaking about reservations to treaties, he said that the Organization of American States (OAS) had considered that matter in 1966. It had decided that the difference in legal regimes between European and American countries was being reduced. A reservation was a result of a sovereign act. In the scheme provided by existing conventions, certain reservations had been established. The law of treaties had been also established by the Vienna Conventions on that matter, which constituted existing international law and should be observed. He did not see any need to modify that. He favoured guidelines to address certain gaps in the existing texts. The Commission could also propose a special regime for human rights treaties.

VICTOR RODRIGUEZ CEDENO (Venezuela) said the question of reservations to treaties was one of the most complex subjects of international law. The Commission should concentrate on international practice regarding reservations to multilateral treaties only. Reservations to bilateral treaties more often than not amounted to a re-negotiation of treaties. The regime of reservations had formerly been subordinated to the requirement that all parties to treaties agree on allowing the reservation. The Vienna Conventions had updated that practice.

States could not be bound to treaties against their will. Although the Vienna Conventions regime had certain gaps, no new norms were needed. That might even lead to conflicting regimes that would undermine international legal security. Most Commission members had seen no reason to reopen debate; still, there were ambiguities that should be dealt with. The Commission might consider developing model clauses for use by States. For the time being, the Commission should elaborate draft articles that clearly reflected State practice.

Some had called for a separate reservations regime for human rights treaties. It would appear that such universally significant treaties should not allow reservations, but such a course of action should be embarked upon with great caution, taking into account international realities. The effect of reservations or "interpretive statements" at the time of accession should be carefully considered.

ERKKI KOURULA (Finland), speaking on behalf of the speaking on behalf of the five Nordic countries (Denmark, Finland, Iceland, Norway and Sweden), said that in its work on State succession, the Commission had built on three areas of international law -- the law of nationality, the law of State succession and human rights law. There are few generally binding rules on nationality. International law on State succession was notoriously fragmentary and

disputed. Recent trends indicated that practical arrangements, as compared to abstract principles, were most important in protecting stability in cases of a sovereignty change.

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The Vienna Conventions on State succession had provided a good basis for defining succession. State succession remained a part of the prerogatives of the State concerned -- namely, the predecessor and the successor States, to frame their nationality laws. That must be done within the framework of existing human rights standards, he continued. The Nordic countries were pleased that the Commission had taken up the emerging right to nationality and had also placed a concomitant obligation on States to consult and negotiate with each other in order to avoid statelessness.

The ILC had given priority to the consideration of the effects of State succession on the nationality of natural persons over that of legal persons, noting the sense of urgency for the former. But legal rules concerning the nationality of legal persons might be more available in State practice and customary law and therefore better lend themselves to systematization.

OLEKSIY V. STEPANOV (Ukraine) said the last decade of the twentieth century had seen the emergence of more than 20 newly independent States. In general, the replacement of sovereignty in a territory also brought about the replacement of the nationality of persons residing in that territory. In any case, the nationality of the predecessor State automatically ceased to exist. The problem was whether the successor State should recognize its nationality for persons residing on the transitional territory. That decision rested entirely within the exceptional competence of the successor State.

Under customary international law, successor States have the obligation to grant their citizenship to all persons permanently residing on the transitional territory, except those possessing the citizenship of third States. Upon the disintegration of the former Soviet Union, the Parliament of Ukraine determined that all citizens of the former Soviet State who were permanently residing in Ukraine at the moment of the declaration of independence were to be recognized as citizens of Ukraine. At the same time, those persons could reject Ukrainian citizenship. The Parliament was now considering a new law that would rescind the right to deny Ukrainian citizenship, thus avoiding the appearance of statelessness in Ukraine.

Ukraine resolutely opposed attempts by some States to use succession to extend jurisdiction over other countries, such as the situation when a successor State adopts laws that provide for the artificial extension of its citizenship to the citizens of another newly independent State, which has emerged from the disintegration of a predecessor State. Such a situation might result in one State seeking to absorb the population of another.

ALEXANDRE CECELOUA (Guinea) said the Commission had attempted to construct universally acceptable international norms on the issue of State succession. He supported the initiative of the Commission in dealing with the

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problem of nationality in relation to recent territorial changes. With respect to the concept of nationality, he said it combined factors of attachment and the interest of an individual in preserving the link with a State. Statelessness should be avoided in cases of State succession. Attribution or granting of nationality was a matter of national legislation.

A right of option should be given to individuals in cases of disintegration of States, he continued. Dual nationality should not be encouraged. The Commission should set forth the general principles on the matter in the form of a convention.

JOHN DE SARAM (Sri Lanka) agreed with the Commission on the subject of reservations to treaties. Guidelines, and where necessary, model clauses were a preferable course of action. It would be inadvisable to develop special regimes on reservations according to the special subject-matter categories. The detailed questionnaire which the Commission intended to send to States and to principal depositaries of multilateral treaties would be of great practical value.

It was difficult to proceed on an assumption that reserving States generally acted in bad faith, he continued. A number of States, when making non-admissible reservations, might be under the misapprehension that such a reservation was admissible or might not have addressed the question of which were admissible or non-admissible.

On State succession, he said it could seriously affect the nationality of natural persons, sometimes in severe and humanly tragic ways. The problem of statelessness had to be viewed in the light of the overall legal consideration that in public international law the State was to determine who should be accorded its nationality. Certain international obligations of humanitarian nature should also be applied. Each situation of State succession had its own legal context and possibilities, which made the question of State succession especially difficult.

HUNG IL CHEE (Republic of Korea), speaking about the draft code of crimes against mankind, said a threat of aggression could certainly be regarded as a subject of serious concern by the international community. The Commission should consider restoring the crime of the threat of aggression to the code.

Regarding State succession, he said the issue of nationality stood at the crossroads between domestic law, private international law and public international law. If the issue of nationality were addressed from the point of view of human rights, it would naturally follow that recognition of the individual right to opt for nationality was consistent with current developments in international law.

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On international liability, he said the provision that "States concerned shall cooperate in good faith" was not sufficient in imposing a specific obligation on States to prevent or minimize the transboundary harm. Additional wording should be added to the article on cooperation, to impose such an obligation.

On State responsibility, he said the difficulty of defining what activities were contrary to the peremptory norm of international law had already been experienced by the Commission, for it was a subject easy to conceive but difficult to apply.

Regarding reservations to treaties, he supported the proposal to define model clauses and guidelines to the regime of reservation. He also thought it was necessary to define the distinction between interpretive declarations and reservations to treaties, for both could play a useful and constructive role as normative rules of general international law.

Statements in Right of Reply

MEHRDAD REZAEIN (Iran) said the objections of our State Party to the reservations expressed by another State Party to treaties are normally referred to the depositaries of treaties. That was why he had been surprised by comments made by Austria at this morning's meeting. It was not normally the practice in the Sixth Committee to make remarks of a political nature. In addition to Iran, several other Islamic States had ratified the Convention on the Rights of the Child with reservation.

GERHARD HAFNER (Austria) said it had not been his intention to make any political point. He had merely attempted to illustrate how the principle of inadmissible reservations could be dealt with without any detriment to relations between States. The Vienna Conventions on the laws of treaties had not specifically dealt with that scenario.

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