EXAMINATION OF DRAFT ARTICLES ON NATIONALITY AND STATE SUCCESSION CONTINUES IN LEGAL COMMITTEE

31 October 1997

Press Release
GA/L/3052

EXAMINATION OF DRAFT ARTICLES ON NATIONALITY AND STATE SUCCESSION CONTINUES IN LEGAL COMMITTEE

19971031 Adopted by International Law Commission at Geneva Session; Some Speakers Suggest Commission Re-examine Right To Choose Nationality

The International Law Commission should re-examine the right of persons affected by State succession to choose their nationality, some representatives said this morning, as the Sixth Committee (Legal) continued consideration of the Commission's draft articles on nationality and State succession.

The Commission adopted the set of 27 draft articles and a preamble at this year's Geneva session. The articles are divided into two parts; part I applies to all categories of succession of States; and part II indicates how the general provisions of part I might be applied in specific categories of succession. The draft articles are intended to provide guidance to States in their negotiations and in the elaboration of national legislation, in the absence of any relevant treaty on nationality in the case of State succession.

The representative of the Czech Republic said the right of persons to choose their nationality should have limits. It was essential to preserve the balance between provisions in the draft text concerning the will of individuals and those ensuring certain prerogatives of States.

The representative of China said problems could arise from people choosing their nationality, in such areas as social security benefits, tax obligations and military service. It also posed difficulties for the State in the administration and protection of natural persons. The Commission should consider that issue during its second reading of the draft.

The representative of Slovenia added that the determination of nationality should take into account all appropriate links a person had to a nation or country, not weigh one factor -- such as residence -- more heavily than another.

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On the work of the Commission in general, the representative of the United States said that it appeared to be moving in a more productive direction, completing some long-running projects, such as the draft Code of Crimes against the Peace and Security of Mankind, and giving serious study to its own programme and methods of work. His delegation commended the Commission for the steps it had taken aimed at reinventing itself.

Also concerning the Commission's work programme, the representative of France said that a genuine dialogue should be established between the Commission and the Committee. States, through the Committee, should provide the Commission with guidelines on its work.

Statements were also made by the representatives of Italy and the United Kingdom.

The Committee will meet again at 3 p.m., Monday, 3 November, to continue its debate on the report of the International Law Commission.

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue its discussion of item 147, the report of the International Law Commission, with an emphasis on Chapter IV dealing with nationality in relation to succession of States. At its forty-ninth session, the Commission adopted 27 draft articles on the topic in the form of a draft declaration.

Statements

UMBERTO LEANZA (Italy) said the International Law Commission had made decisive progress in its drafting of articles on nationality and succession of States. He drew a distinction between codification and development of international law and stressed that the two should be kept separate. Codification was not intended to create international law but to coordinate existing instruments, whereas progressive development of law was designed to create new ones. He stressed the need for closer and effective cooperation between the Commission and the Sixth Committee, adding that dialogue between them should be improved.

On the issue of nationality and State succession, he said that only States were competent to confer or abrogate nationality. Noting the difficulties caused by the effects of changes in State succession, he commended the efforts of the Commission in striking a balance between the interests of States and individuals to avoid statelessness. He also welcomed measures proposed to prohibit abrogation of nationality, and others aimed at protecting the rights of children and minorities as well as to prevent discrimination.

CHEN SHIQIU (China) said that, while legislation on the determination of nationality remained the sovereign right of States, that right was not without limits. A State must take due account of international law and international reality. An appropriate balance must be struck between, on the one hand, the sovereign rights of a State in dealing with the issue of nationality in relation to the succession of States, and, on the other, the limits set by international law. That balance had important implications for stable international relations and the maintenance of international peace and security.

The draft articles, while resolving passive conflict over nationality in relation to State succession, gave no thought to active conflicts arising from succession, he continued. In addition, the present draft articles did not address the issue of dual and multiple nationality. Conflict over nationality created problems with regard to social security benefits, tax obligations and military service. It also posed difficulties for the State in the administration and protection of natural persons, which often led to disputes and conflicts among States.

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He said the present draft articles underscored the obligations of States to give people the right to choose their nationality after a succession. That could produce active conflict over nationality, thereby creating more problems. The Commission should take due account of that problem in its second reading of the draft articles.

MIRJAM SKRK (Slovenia) said the presumption in the 27 draft articles concerned the habitual residence of affected persons, who were presumed to acquire the nationality of the successor State on the date of succession. The Commission, however, should reexamine that approach and attempt to find the proper balance between the two approaches in national legislation -- the granting of nationality on the basis of territorial origin and the granting of nationality on the basis of the parental origin of the persons concerned. The Commission seemed to assign greater importance to the use of territorial origin. She believed that the determination of nationality should consider all appropriate links a person had to a country.

Concerning articles 14 and 15, which prohibit discrimination in the granting of nationality, she said the peremptory character of the articles must be in conformity with the customary legal norms concerning human rights. The Commission took a position that discrimination on any grounds was prohibited in matters of nationality and the succession of States. That prohibition of discrimination should be specified as the discrimination against race, colour, descent, national or ethnic origin and religion.

MILAN BERANEK (Czech Republic) said his Government agreed with the proposal to have the draft articles adopted as a declaration. A declaration would have more impact than a convention ratified by a small number of States. Legislation adopted by the Czech Republic and Slovakia, following the dissolution of Czechoslovakia, had provided a legal basis for the acquisition by each national of the former Czechoslovakia of the nationality of one or the other successor State. The risk of statelessness was eliminated by the inclusion, in the nationality laws of the two successor States, corresponding provisions concerning basic criteria for the attribution of the nationality.

He said the result achieved by application of the laws thus corresponded with the aim of articles 1 and 3 of the Commission's draft text. He noted that the nationality laws of the two successor States, nevertheless, differed considerably in many respects, including conditions for optional acquisition of nationality and such matters as dual nationality. To avoid uncertainty, the Czech legislation was adopted in parallel with the dissolution itself and was in force on the first day the Republic came into being.

It was essential to preserve the balance between provisions in the draft text concerning the will of individuals and those ensuring certain prerogatives of States, he continued. He supported the inclusion of provisions on the unity of family and on children born after the succession of

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States, the aim of which was in full harmony with the goal of the Convention on the Rights of a Child. Because of the complexity of the issues, however, his Government would reserve its position on provisions in the text concerning negotiation by States to resolve nationality issues.

Sir F. BERMAN (United Kingdom), addressing nationality in relation to State succession, said that a great majority of States would have no recent national memory of State succession, nor would they be anticipating succession in the future. The broader international interest in having clear and humane rules on the subject was clear, however. The concern for human rights, which ran as the main thread through the Commission's work, was the proper modern approach. The Commission's conclusions on that topic also offered an interesting example of cross-fertilization with the work of other bodies, such as the Council of Europe, which had also adopted a convention on nationality.

On the sixth and final topic of the Commission's report, the unilateral acts of States, he said the subject should be further refined to permit a manageable and useful project. The proposed subject of study was enormously broad even if some of the categories of unilateral acts were omitted, which had been proposed by the working group. In fact, some topics considered under the heading of unilateral acts were so vast and complex that they should, perhaps, be taken up separately.

DAVID R. ANDREWS (United States) said that the International Law Commission had come to be seen in some government and academic circles as an institution that worked at some remove from government's main concerns. Some of its projects lingered unfinished for many years. "Skeptics asked if they had discovered the secret of eternal life", he said. In a few cases, the Commission continued to work on topics in the face of skeptical questions and even outright opposition from governments.

Recently, however, the Commission appeared to be moving in a more productive direction, he continued. It had completed some long-running projects, notably the draft Code of Crimes against the Peace and Security of Mankind. It had also given serious study to its own programme and methods of work and had made some very useful improvements, including a careful plan for its work over the current quinquennium. His delegation commended the Commission for the steps it had taken aimed at re-inventing itself.

Much remained to be done, however, both on the side of the Commission and on the side of governments, he said. Both sides must work to assure a useful role for the Commission. For its part, the United States had sought to support the Commission by providing concrete responses to its questions and to the special rapporteurs' questionnaires. His country would work to provide responses to other questions that were thorough and timely. He added that next week his delegation would address the section of the Commission's report dealing with reservations to treaties.

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MARC PERRIN de BRICHAMBAUT (France), commended the work carried out by the Commission's Special Rapporteur on nationality and the succession of States. He endorsed the provision of article 1 of the draft text that stressed the right of an individual to the nationality of a successor State, if that individual possessed the nationality of the predecessor State. The provisions of the draft text to prevent statelessness were relevant, as were the others on multinationality. The Committee must, in future, decide upon the form in which the text should be adopted.

On the question of diplomatic protection, also covered in the Commission's report, he said the Commission should continue its examination of the subject. The machinery for diplomatic protection had been extended to international organizations, which had filed for such protection. Those organizations could also file for functional protection of their agents.

Concerning the topic of the unilateral acts of States, he suggested that work in that area should be limited, as States had the right to determine such acts. On the issue of reservations to multilateral treaties, he said a satisfactory balance should be struck to maintain the integrity of treaties and universal practice. Verification of reservations by treaty monitoring bodies could create problems. Such bodies could do such monitoring in cases where mechanisms had been established for the purpose. He welcomed improvements in the Commission's work methods and said genuine dialogue should be established between the Commission and the Committee. States, through the Committee, should provide the Commission with guidelines on its work.

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