LEGAL COMMITTEE DISCUSSES SUCCESSION OF STATES AND NATIONALITY

Press Release
GA/L/3051

LEGAL COMMITTEE DISCUSSES SUCCESSION OF STATES AND NATIONALITY

The Sixth Committee (Legal) this afternoon began discussion of draft proposals of the International Law Commission on nationality and succession of States, with a number of delegations saying that the risk of families being separated during the succession of States should be eliminated.

The representative of the Netherlands underlined the importance of a safeguard ensuring that the draft articles on the question of nationality and State succession did not interfere with the well-established right to family life. The risk that families could be split up as a result of the unintentional attribution of different nationalities to various members of a family should be eliminated.

The representative of India said the aim of the draft articles was to prevent the occurrence of statelessness by considering the humanitarian problems caused in certain cases of succession, such as the rights of children in situations where the parents could not be located.

On other aspects of the issue, the representative of Finland (speaking for the Nordic countries -- Denmark, Finland, Iceland, Norway and Sweden), said the fundamental rights of individuals should be taken into account in any consideration of nationality by a State. It was the obligation of States concerned to take all appropriate measures to prevent statelessness from arising.

The representative of Pakistan said that while it was the State's obligation to prevent statelessness, conferment of nationality or otherwise should be the sole prerogative of a State. Given the sensitive nature of the subject, his delegation favoured the proposal that the draft instrument should be non-binding and adopted as a declaration of the General Assembly. It should guide States in formulating their nationality policies.

Alain Pellet, Chairman of the International Law Commission, introduced a draft text which consisted of a preamble and 27 articles, divided into two parts. Part I applied to all categories of succession of States while Part II

Sixth Committee - 1a - Press Release GA/L/3051 18th Meeting (PM) 30 October 1997

indicated how the general provisions of Part I might be applied in specific categories of succession. He said it was mainly intended to provide guidance to States in their negotiations and in the elaboration of national legislation, in the absence of any relevant treaty.

Statements were also made by the representatives of Greece, Germany, Tanzania and Croatia. The observer of Switzerland also spoke.

The Committee will meet again at 10 a.m. tomorrow, Friday, 31 October, to continue its consideration of the report of the International Law Commission on the work of its forty-ninth session.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to continue its consideration of the report of the International Law Commission, with an emphasis on Chapter IV, dealing with nationality in relation to succession of States. At its 1997 session, the Commission adopted 27 draft articles on the topic in the form of a draft declaration. (For background, see Press Release GA/L/3049 of 27 October.)

Statements

ALAIN PELLET, Chairman of the International Law Commission, introduced Chapter IV of the Commission's report, on the topic of nationality in relation to the succession of States. The text, which was submitted in the form of a declaration, consisted of a preamble and 27 articles, divided into two parts. Part I applied to all categories of succession of States, and pertained more to the codification than to the progressive development of the law, even though some aspects of the latter had been included. Part II indicated how the general provisions of Part I might be applied in specific categories of succession. It was mainly intended to provide guidance to States in their negotiations and in the elaboration of national legislation, in the absence of any relevant treaty.

He said the key provision of Part I and of the draft articles as a whole was the principle that every individual who, on the date of the succession of States, had the nationality of the predecessor State, irrespective of the mode of acquisition of that nationality, had the right to the nationality of at least one of the successor States. The Commission was aware of the time-lag between the date of the succession of States and the adoption of legislation or the conclusion of a treaty on nationality. It, therefore, stated, as a principle, that on the date of the succession of States, the successor State should attribute its nationality to the concerned persons who were habitual residents of the territory affected by the succession.

HOLGER ROTKIRCH (Finland), opening on behalf of the Nordic countries -- (Denmark, Finland, Iceland, Norway and Sweden), said the draft articles constituted a timely contribution to the development of norms in a notoriously difficult field. It was the obligation of the States concerned to take all appropriate measures to prevent statelessness from arising. That was a corollary of the right to a nationality. The consistent focus on human rights throughout was another positive feature of the draft articles, which recognized the principle that State consideration of nationality must take account of the fundamental rights of individuals.

Article 13, on the status of habitual residents, needed further clarification, he said. It was an important principle that the status of persons considered habitual residents should not be affected by the succession of States. At the same time, the principle remained rather vague since the

Sixth Committee - 4 - Press Release GA/L/3051 18th Meeting (PM) 30 October 1997

more specific right of residence had been left out. Right of residence here meant the right of habitual residents of the territory that had been transferred to a successor State to remain in that State, even if they had not acquired its nationality. Although that omission was intentional and the result of in-depth discussion in the Commission, that body should still be encouraged to reconsider the issue.

ADRIAAN BOS (Netherlands) said the Commission had acknowledged the possibility of dual or multiple nationality, while also providing rules for restricting such nationality. That reflected the needs of the times. The principle that nobody could possess two nationalities was no longer completely held. In view of common roots or historical ties between nations, together with the great mobility of people nowadays, dual or multiple nationality could not always be avoided without doing injustice to the person concerned.

Article 4 of the draft text, which addressed the problem of the time- lag between the date of the succession of States and the adoption of legislation, was very useful, he said. The presumption that acquisition of a new nationality automatically entailed loss of the former nationality was no longer generally accepted. It was particularly important that there be a safeguard to ensure that the draft articles did not interfere with the well- established right to family life. The risk that families could be split up as a result of the unintentional attribution of different nationalities to various members of a family should be eliminated.

In principle, a change of nationality for persons habitually resident in the Netherlands would not affect their status as permanent residents, he said. However, it might well affect their rights and duties. For example, if such persons acquired the nationality of a State with which the Netherlands was at war, that might result in certain restrictions being imposed upon them. If such persons acquired the nationality of one of the member States of the European Union, they would enjoy the regime applicable to nationals of the European Union.

FANI LIVADA-DASKALOPOULOU (Greece) said the draft articles should cover only those questions of nationality that were directly connected with State succession. For that reason a more accurate title should be employed for the chapter, such as "Effects of the succession of States on the nationality of natural persons" or "Succession of States and nationality of natural persons". The draft should not contain provisions which did not directly concern the succession of State -- as in article 8 ("Renunciation of nationality") or article 9 ("Loss of nationality upon the voluntary acquisition of the nationality of another State"). As a rule, those questions were governed by the domestic legislation of States and there was no reason for any intervention there.

One of the main points where the draft text should be reviewed was in its lack of distinction between solutions derived from international law and

Sixth Committee - 5 - Press Release GA/L/3051 18th Meeting (PM) 30 October 1997

those derived from domestic legislation of the successor State, she said. The difference between those two solutions was that international law was binding and obligatory, while the domestic solutions might or might not be adopted by States. With respect to nationality, some of the articles followed the solutions of international law, while others found their source in domestic law and were discretionary rather than binding. The draft suffered from confusion in that regard.

SYED AKBARUDDIN AHMAD (India) said the aim of the draft articles was to prevent the occurrence of statelessness by taking into consideration the humanitarian problems caused in certain cases of succession. Those included such considerations as the rights of children in situations where the parents could not be located. Such conferment of nationality was to be carried out through the enactment of legislation, by exercise of right of option and withdrawal of prior nationality. A drawback of the draft articles was that they covered in their scope only those effects of succession which occurred in conformity with international law and the United Nations Charter.

The concept of habitual residence was a positive feature in the draft, he said. The Commission handled in a balanced manner the presumption of nationality in respect of habitual residence by treating it as arising only in the absence of any other prevailing provisions or subject to agreement between States. The draft articles were realistic, as they took into consideration the limits of what international law could impose on States, as well as the freedom of action that States exercised in matters of nationality. The draft articles were also flexible in leaving it to States to agree freely among themselves on the manner of implementation of Part I of the draft as long as its general principles were observed.

HARTMUT HILLGENBERG (Germany) said his Government agreed with the structure and main objectives of the draft articles on nationality and State succession. It shared the concern for human rights and statelessness, two main issues reflected in the articles. Although nationality was essentially governed by national law, account must be taken of the limits and parameters set by international law. The obligation to avoid cases of statelessness in the event of State succession was reflected in article 10 of the 1961 Convention on the Reduction of Statelessness. It was also contained in the recent European Convention on Nationality, adopted by the Council of Europe. His Government, like many others, pursued a policy of avoiding cases of dual or multiple nationalities, in keeping with certain international obligations.

The German Government also shared concern for the rights of the individual, now enshrined in the extended framework of article 10 of the draft articles on nationality and State succession, he said. A provision in the draft text on non-discrimination was of utmost importance to his Government, which agreed that no illustrative list of prohibited criteria for discrimination should be included, as had been suggested by the Special Rapporteur who worked on the articles.

Sixth Committee - 6 - Press Release GA/L/3051 18th Meeting (PM) 30 October 1997

TUVAKO N. MANONGI (United Republic of Tanzania) said his delegation had concerns about what it perceived as a narrow conceptualization of article 4 of the draft text, concerning the presumption of nationality in the event of partial or total State succession. The presumption advocated there conferred nationality solely on the basis of habitual residence in the territory affected by the succession. That presumption was unwarranted and too broad.

The right of a State to a legal relationship with those who had a genuine link with the State should be protected and preserved, as should the right of an individual to a nationality, he said. Another concern of his delegation with respect to article 4 was its view regarding nationality based solely on the criteria of habitual residence. In an era when the mobility of capital -- and increasingly of labour -- blurred territorial boundaries, the risk of residents obtaining the nationality of a State for motives other than loyalty was a matter of concern.

STANKO NICK (Croatia) said that while dual nationality should not be encouraged, it was a common fact that States increasingly had to face, and could be very useful for some individuals. The draft articles adopted by the International Law Commission should elaborate that topic further.

He drew attention to the declaration on the consequences of State succession on the nationality of natural persons, adopted by the European Commission for Democracy through Law, of which he was member. It made the point that any deprivation, withdrawal or refusal to confer nationality shall be subject to an effective remedy. That was an important statement, which should be considered by the Commission. He supported the view that any ambiguities in the draft articles would be dangerous.

JAMSHED A. HAMID (Pakistan), speaking on "responsibility of States", another subject covered by the International Law Commission in its report, said that while States had the right to engage in lawful activities within their territories, they had a corresponding obligation to ensure that the enjoyment of that right did not have disruptive and harmful effects on others. They would have to accept liability for any resulting harm. His delegation was not averse to the inclusion of an illustrative list of such harmful activities. In the absence of a dispute settlement mechanism, Pakistan would favour the deletion of the qualifying term 'significant' appearing before the the words 'transboundary harm' in the draft text. In the event of any harm being done, the aggrieved State should be entitled to compensation from the State from which the harm emanated.

On the question of reservations to "normative multilateral treaties", also dealt with by the Commission, he said experience had shown that such reservations had proved extremely useful in promoting universal acceptance of the treaties. While Pakistan agreed that States should ensure that their laws did not result in statelessness, conferment of nationality or otherwise should be the sole prerogative of a State. Given the sensitive nature of the

Sixth Committee - 7 - Press Release GA/L/3051 18th Meeting (PM) 30 October 1997

subject, his delegation favoured the proposal that the instrument should be non-binding and adopted as a declaration of the General Assembly. It should guide States in formulating their national policies. Pakistan also supported the Commission's approach in separating consideration of the question of nationality of "natural" persons from that of "legal" persons.

M. LUCIUS CAFLISCH, observer for Switzerland, said the goals of the draft articles were to avoid State succession that led to statelessness, and to strengthen the connections between the successor State and individuals within its new borders. The principle that successor States remained neutral on the question of nationality was also important and reflected in the draft.

One question in the draft, however, was that the first part of the provisions assumed it was reflecting existing customary laws, he said. Those provisions should be checked to see if they did have that status. His delegation doubted that Article 9, on the loss of nationality upon the voluntary acquisition of the nationality of another State, had any precedence in customary law.

He also questioned the scope of Article 20. In the case where part of a territory goes to a successor State, the Article grants the right to residents living in that territory to choose the nationality of the predecessor State. The article should be limited to say that residents had the option to choose the nationality of the predecessor State only if they had connections with that State. Without that limitation, a successor State may have a large number of people within its borders with a different nationality. That was a situation which was better avoided.

* *** *