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GA/L/3053

LEGAL COMMITTEE CONTINUES CONSIDERATION OF INTERNATIONAL LAW COMMISSION REPORT

3 November 1997


Press Release
GA/L/3053


LEGAL COMMITTEE CONTINUES CONSIDERATION OF INTERNATIONAL LAW COMMISSION REPORT

19971103 Commission Chairman Introduces Chapter On Reservations to Normative Multilateral Treaties

The International Law Commission should strengthen the provision dealing with non-discrimination in its draft text on nationality and State succession, speakers told the Sixth Committee (Legal) this afternoon during its consideration of the Commission's report on the work of its forty-ninth session.

According to article 14 of the draft text, States shall not deny persons the right to retain or acquire nationality upon State succession by discriminating on any ground. Some delegates said the provision should be extended to better protect the rights of individuals and States.

The representative of the Republic of Korea said article 14 gave no guidance on the prohibition of discrimination after new nationality was acquired. There were many cases of discrimination in areas such as employment and social security benefits involving persons who had recently acquired nationality. The right of persons to nationality under such circumstances must be protected both before and after the acquisition of nationality took place.

The representative of Cameroon said the Commission seemed to have lost sight of the interests of States by prohibiting discrimination on any ground. However, the Commission should specify the nature of discriminations prohibited in order to protect the interests of States.

On a separate issue, the representative of Spain urged the Commission, as a matter of urgency, to begin work on a study to determine the limits of domestic laws with extraterritorial implications.

Statements were also made by the representatives of Japan, Malawi, Costa Rica and Guatemala.

The Chairman of the International Law Commission, Alain Pellet, introduced chapter V of the Commission's report dealing with reservations to normative multilateral treaties.

The Committee will meet again at 3 p.m. tomorrow, Tuesday, 4 November, to consider chapter V of the Commission's report.

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, which deals with nationality in relation to succession of States.

At its 1997 session in Geneva, the Commission adopted 27 draft articles on the topic in the form of a draft declaration. 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. (For background information, see Press Release GA/L/3049 of 27 October.)

Statements

CHUSEI YAMADA (Japan) said that habitual residence should be the most important and vital factor in the link between natural persons and the State. However, there existed other factors which decided a link between the person and the State, such as ethnic, language, religious, cultural links, social identities, and political beliefs. There could exist a group of persons who, while retaining habitual residence in the successor State, had vital links on the basis of other factors with the predecessor State and vice-versa. That problem might not be properly solved by granting the individual the right to choose his or her nationality -- the right of option. There should be further examination of that issue.

He added that his delegation recognized the necessity of article 12, which deals with the problem of children born to persons who had not acquired a nationality after State succession. There should be further thought, on whether the article needed adjustment in regard to a situation where the parents were given nationality by the State which practiced jus sanguinis. Article 11, on the unity of the family, was an important principle of human rights and relevant to the questions of nationality. In the case of the draft articles, however, it was extraneous to the scope of the topic and it might not be appropriate to keep them in the main body of the draft articles.

TREVOR P. CHIMIMBA (Malawi) said there was no doubt that nationality questions fell within the domain of States, subject to limitations imposed by international law. It was equally true that the development of human rights law imposed legitimate demands on States to ensure the enjoyment of certain rights by individuals. The success of the draft articles depended largely on the recognition of those considerations. Malawi agreed that the right to

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nationality should have a prominent role in the draft articles. While States should avoid creating statelessness, the draft articles should also not be seen as sanctioning double nationality, let alone its fortuitous acquisition or attribution. As in the past, his delegation found the commentaries on the draft articles very useful.

The Commission's report was remarkable for the outstanding work of that body and the positive structural changes introduced to the report itself, he said. He urged the Commission to continue making such "user-friendly" improvements to its report.

CARLOS F. DIAZ (Costa Rica) generally welcomed the draft articles which, he said, were satisfactory. He also commended the prominence given to the principle that the acquisition of nationality was a human right. His delegation welcomed the respect given to the will of persons seeking the nationality of two or more States provided for in draft article 10 of the document. There should, however, be language to indicate that the situation was exceptional. With regard to article 12, he said parents should have some right in determining the nationality of a child born after the succession of States. The article provided that such a child, who had not acquired any nationality, had the right to the nationality of the State concerned on whose territory he/she was born.

His delegation did not support the provision that States should take all appropriate measures to allow families to remain together, noting that the individuals involved should have a say. In case of military occupation, the principle of international law should prevail. The nationality possessed by individuals before military occupation should take precedence. The practical difficulties that might arise in cases of prolonged occupation should be taken into account.

THOMAS FOZEIN (Cameroon) said it was imperative that any codification of law on nationality must ensure that the legitimate interests of individuals as well as the interests of States were reflected. In the 27 draft articles on nationality in relation to State succession, the Commission had attempted to perform that task. The Commission, however, seemed to lose sight of the interests of States by prohibiting discrimination on any ground (article 14). In the face of extremist dogmas found around the world, which had included in some cases ethnic cleansing, the Commission was justified in including a provision to prohibit discrimination. However, the nature of discriminations prohibited should be specified in the draft.

He said his delegation also questioned the scope of article 12, which gave a child born after the date of succession the right to the nationality of the State where that child was born. However, in the case where the parents had the nationality of the predecessor State or they chose a different nationality, they could end up with a different nationality than the child's. In that case, the Commission might create a situation where it was breaking up families on the basis of nationality instead of promoting their unity.

CHOUNG IL CHEE (Republic of Korea) said that, of all the rights referred to in the draft text, the right of the individual to opt for nationality was the most important right. The right of option for nationality had already been

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practiced by several European Powers in Asia, when they guaranteed the right of option to individuals in the colonies as the decolonization process began in Asia in 1945. In that connection, many Koreans had experienced enormous hardship and suffering as the result of sudden loss of their nationality since the Second World War.

On article 14, which prohibits discrimination in determining nationality, he said it gave no guidance on the situation after new nationality was acquired. Experience had shown that in the situation of the succession of States, nationals who obtain a new nationality had been discriminated against in areas such as employment and social security benefits. The right of persons to nationality under such circumstances must be protected both before and after the acquisition of nationality. An additional paragraph or phrase should be added that ensured that the principle of non-discrimination was equally applied to all persons, including those who acquired nationality through the succession of States.

JOSE ANTONIO PASTOR RIDRUEJO (Spain), speaking on a section of the report of the International Law Commission dealing with the question of reservations to multilateral treaties, said his delegation welcomed the Commission's conclusions. He underscored the importance of the applicability of the Vienna Conventions to human rights instruments. He recalled a statement by his delegation in 1995 that the integrity of multilateral treaties should be protected and that human rights monitoring bodies could not replace States.

On the issue of nationality in State successions, he noted with satisfaction the work done on the draft articles. The draft instrument should provide guidelines to States having problems promulgating nationality legislation. He welcomed the enunciation of the principle of the right of individuals to nationality in cases of State succession. His delegation also welcomed provisions introduced in articles 4 and 18 to prevent statelessness.

He urged the Commission, as a matter of urgency, to begin work on a study to determine the limit of domestic laws with extraterritorial implications.

ROBERTO LAVALLE (Guatemala) drew attention to drafting problems in the draft articles. He said the first two articles should be reversed. Article 1, which covered the right to nationality, should replace article 2, on the use of terms. The latter could replace article 1. On article 7, he said the word "Attribution..." in the heading should be changed to read "Non-attribution". The sentence would then read "Non-attribution of nationality to persons concerned having their habitual residence in another State". The obligations of successor States indicated in the article should be explained in full in Part 1 of the draft articles instead of among the provisions of Part 2, which was not binding on States.

He said the title of article 18, "Other States", in the Spanish text was not satisfactory and should be replaced by an appropriate formulation. He also said the provisions of article 27 should be moved to Part 1. The article applied to cases of succession of States covered by the draft articles.

Introduction of Chapter V: Reservations to Treaties

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ALAIN PELLET (France), Chairman of the International Law Commission, said the Commission, at its last session, considered the second report of Special Rapporteur on the topic of reservations to normative multilateral treaties and adopted preliminary conclusions on the topic. Those conclusions, set forth in 12 paragraphs included in the Commission's report, were intended to help clarify the reservations regime applicable to normative multilateral treaties, particularly in the area of human rights.

Those conclusions included the idea that the Vienna Conventions on the Law of Treaties of 1969 and 1986 governed the regime of reservations to treaties, including human rights treaties; and that a treaty monitoring body -- organizations created by treaty parties to monitor compliance and help implement the treaty -- had the competence to comment upon and express recommendation with regard to the admissibility of reservations by States.

The Commission also decided that the result of its work would be to adopt a guide to practice on the topic of reservations to treaties in the form of a set of draft articles with commentaries.

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For information media. Not an official record.