INTERNATIONAL LAW COMMISSION CONCLUDES FORTY-NINTH SESSION

21 July 1997

Press Release
L/2836

INTERNATIONAL LAW COMMISSION CONCLUDES FORTY-NINTH SESSION

19970721 GENEVA, 18 July (UN Information Service) -- The International Law Commission today closed its forty-ninth session, after 10 weeks of meetings in which it continued to lay groundwork for the establishment of international legal norms on the nationality of individuals in cases of State succession.

The Commission, the United Nations body charged with promoting the progressive development of international law and its codification, accomplished this work by adopting on first reading a set of 27 draft articles and a draft preamble based on the principle that every individual who, on the date of the succession of States, had the nationality of the predecessor State has the right to the nationality of at least one of the States involved in the succession. States thus have the obligation to take all appropriate measures to prevent such persons from becoming stateless as a result of the succession. The draft articles and a draft preamble will now be submitted to governments for comments and observations.

The question of the impact of the succession of States on nationality was included in the Commission's agenda in 1993 against the backdrop of a number of cases of State succession. The Commission decided in 1996 to give priority to the question of the nationality of natural persons, or individuals, which involves human rights considerations. It left aside for the moment the question of the nationality of legal persons -- such as corporations -- which, the Commission considered, raises issues largely economic in nature.

During this session, which opened on 12 May, the Commission also continued work on a variety of issues, including reservations to treaties, State responsibility, international liability for injurious consequences arising out of acts not prohibited by international law, unilateral acts of States and diplomatic protection.

The next session of the Commission will be held at the United Nations Office at Geneva from 20 April to 12 June 1998, and at Headquarters at New York from 27 July to 14 August 1998. The Commission will also hold a seminar from 21 to 22 April 1998 to celebrate its fiftieth anniversary.

Draft Articles on Nationality, State Succession

The draft articles on nationality in relation to State succession are divided into two parts. Part I contains general provisions applicable in all

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cases of succession of States, while Part II consists of provisions relating to specific categories of succession of States.

The draft set of articles is based on the fundamental principle that every individual who, on the date of the succession of States, had the nationality of the predecessor State has the right to the nationality of at least one of the States involved in the succession (article 1). States thus have the obligation to take all appropriate measures to prevent such persons from becoming stateless as a result of the succession (article 3). A general presumption exists that persons who had the nationality of the predecessor State and who reside in the territory affected by the succession acquire the nationality of the successor State on the date of such succession, but there are exceptions (article 4). Special emphasis is given to the will of individuals whenever they are qualified to acquire the nationality of more than one State involved in the succession. In such cases, they are to be granted a right of option (article 10).

Other issues addressed in Part I concern the enactment of legislation on nationality and connected questions (article 5); the effective date of attribution of nationality following the succession (article 6); and the nationality to be attributed to nationals of the predecessor States residing in a State which is not involved in the succession (article 7).

In giving effect to the provisions of Part I in specific situations, States are to take into account the provisions of Part II (article 19), which contains more detailed rules on the attribution of nationality in the following four specified cases of succession of States. They are: transfer of part of the territory (section 1); unification of States (section 2); dissolution of a State (section 3); and separation of part or parts of the territory (section 4).

The draft also contains a provision stating explicitly that, without prejudice to the right to a nationality, it applies to the effects of a succession of States occurring in conformity with international law, and, in particular, with the principles of international law embodied in the Charter of the United Nations (article 27).

International Liability for Injurious Acts

The topic of international liability for injurious consequences arising out of acts not prohibited by international law has been on work programme of the Commission since 1978.

Work on the question of the progressive development and codification of rules on the topic was prompted by the increasing risk of transboundary injuries resulting from activities not prohibited by international law, which have become particularly prevalent with the use of modern technology. The

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objective of this work emanates from such considerations as the desire to protect innocent victims injured by lawful activities which cause transboundary harm and to provide for reparation for such injury or harm. Other considerations involve the prevention of harm before it occurs, as well as the obligation of notification by the State involved in the conduct of the activities entailing risk of transboundary harm to the State that might be affected.

During its forty-ninth session, re-evaluating the work done so far, the Commission decided to deal separately with the two main issues involved in the topic, namely, the prevention of transboundary damage and the international liability resulting from such transboundary harm. Given the considerable progress made on the prevention aspect of the topic, it decided to proceed first with that question under the title "Prevention of transboundary damage from hazardous activities", appointing P.S. Rao (India) as Special Rapporteur.

State Responsibility

The topic of State responsibility has been on the Commission's programme of work since 1949. In its consideration of the topic, the Commission has defined the scope of the topic to be confined to the study of international responsibility of States for internationally wrongful acts. In that connection, the Commission has concentrated its study on the determination of the principles which govern such responsibility. Work on the topic reached an advanced stage in 1996 when the Commission adopted, on first reading, an entire set of draft articles dealing with a diversity of legal issues, including the elements constituting an international wrongful act, determining when the international wrongful act could be characterized as an international crime or delict, and the consequences resulting from such an act. The draft articles also include the defences that could preclude wrongfulness, such as distress, state of necessity and self-defence. The rights of the State that is wrongfully injured have also been defined, and include the rights to reparation, restitution in kind, and compensation.

During the session, the Commission appointed a new special rapporteur on the issue of State responsibility, James Richard Crawford (Australia), and decided to give appropriate priority to the topic in its future work, so as to complete its second reading by the end of the present term of office.

Diplomatic Protection

The topic of diplomatic protection was included for the first time on the programme of work of the current session, given the increasing exchange of persons and commerce across State lines. Such exchanges produce a proliferation of disputes for which States may claim diplomatic protection on behalf of their nationals.

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The Commission appointed Mohamed Bennouna (Morocco) as Special Rapporteur on the topic. It decided that the scope of study will include such issues as the following: basis for diplomatic protection; the required linkage between the beneficiary and the States exercising diplomatic protection; who can claim diplomatic protection and against whom; the conditions under which diplomatic protection may be exercised; and the consequences of diplomatic protection.

Unilateral Acts of States

Consideration of the topic of unilateral acts of States, also included on the programme of work for the first time at the current session, was precipitated by the increase in the unilateral acts of States which produce legal consequences on the international plane. The Commission appointed a special rapporteur, Victor Rodríguez-Cedeño (Venezuela), on the topic. It decided that in its study of the issue, the Commission will concentrate on such question as a clarification of the elements and effects of unilateral acts of States, and the rules that are generally applicable to such acts. The study would include the legal effect of unilateral acts of States on themselves and on other States, as well as such question as duration, when the acts can be terminated or revoked, and so on.

Background on Commission

The International Law Commission was established by the General Assembly in 1947. After completing work on a particular topic, the Commission may call on the Assembly to convene an international conference of plenipotentiaries to incorporate its drafts into multilateral agreements. At other times, the Assembly may simply take note of the Commission's work and bring it to the attention of Member States for consideration.

The Commission is composed of 34 expert members elected by the General Assembly and representing the world's principal legal systems. The five-year term of the current members will expire on 31 December 2001. The members are: Emmanuel Akwei Addo (Ghana), Husain Al-Baharna (Bahrain), Awn Al-Khasawneh (Jordan), Jo'o Clemente Baena Soares (Brazil), Mohamed Bennouna (Morroco), Ian Brownlie (United Kingdom), Enrique J.A. Candioti (Argentina), James Richard Crawford (Australia), Christopher John Robert Dugard (South Africa), Constantin P. Economides (Greece), Nabil Elaraby (Egypt), Luigi Ferrari-Bravo (Italy), Zdzislaw Galicki (Poland), Raul I. Goco (Philippines), Gerhard Hafner (Austria), Qizhe He (China), Mauricio Herdocia Sacasa (Nicaragua), Jorge E. Illueca (Panama), Peter Kabatsi (Uganda), James Lulabanzibwa Kateka (United Republic of Tanzania), Mochtar Kusuma-Atmadja (Indonesia), Igor Ivanovich Lukashuk (Russian Federation); Teodor Viorel Melescanu (Romania), Vaclav Mikulka (Czech Republic), Didier Opertti Badan (Uruguay), Guillaume Pambou-Tchivounda (Gabon), Alain Pellet (France), Pemmaraju Sreenivasa Rao (India), Victor Rodríguez-Cedeño (Venezuela), Robert Rosenstock (United States), Bernardo Sepulveda (Mexico), Bruno Simma (Germany), Doudou Thiam (Senegal) and Chusei Yamada (Japan).

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