REPORT OF INTERNATIONAL LAW COMMISSION TAKEN UP IN SIXTH COMMITTEE

Press Release
GA/L/3118

REPORT OF INTERNATIONAL LAW COMMISSION TAKEN UP IN SIXTH COMMITTEE

Attention Focused on Draft on Nationality Issues Arising When States Transfer Territory, Unify, Dissolve or Split

The Sixth Committee (Legal) this morning began discussion of the report of the International Law Commission, devoting much of its attention to a draft declaration on nationality of natural persons in relation to the succession of States, which the Commission has recommended to the Assembly for adoption.

The draft declaration is contained in the Commission’s report in the form of a preamble and a set of draft articles. Stressing the need to prevent any person becoming stateless, the text addresses such situations as a transfer of part of a territory, unification of States, dissolution of a State and separation of part of the territory.

The Chairman of the Commission, introducing the report, said that, in line with the progressive development of human rights law, the draft took into account the legitimate interests of both States and individuals.

Other topics addressed by the Commission’s report include: international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities); reservations to treaties; diplomatic protection; unilateral acts of States; and jurisdictional immunities of States and their property.

Concern over the Commission’s working methods was expressed by the representative of Norway, on behalf of the Nordic countries. He said that inadequate attendance at the Commission's meetings had long been an issue of concern. While the recent decision to hold split sessions might help, further improvements would depend to a large degree on the ability and effort of governments to respond to the Commission's requests for written information. That ability was often hampered by resource constraints, he noted. Remarking that these constraints had meant that several governments had only been able to submit their comments orally, in the Sixth Committee, he said that those statements deserved attention. All opinions should be considered with equal care, regardless of the form in which they were presented.

The 34-member expert Commission was established by the General Assembly in 1947 to codify customary international law and to promote the codification and

Sixth Committee - 1a - Press Release GA/L/3118 15th Meeting (AM) 25 October 1999

progressive development of international law in areas where customary law did not exist or had not sufficiently evolved.

Also speaking in the debate this morning were the representatives of Japan, Germany, Argentina and Guatemala.

A minute of silence was observed in honour of Doudu Thiam of Senegal, a Commission member since 1970, who passed away recently. He was described by the Commission’s Chairman as its institutional memory. The representative of Senegal thanked the Committee for the tribute.

The Committee will meet again tomorrow, 26 October, at 12 p.m. to continue discussion of the Commission's report.

Committee Work Programme

The Sixth Committee (Legal) met this morning to consider the outcome of this year’s session of the International Law Commission, the highlight of which was the adoption of a draft preamble and a set of articles on the nationality of natural persons in relation to the succession of States.

As described in the Commission’s report (document A/54/10), other topics discussed by the Commission during the Geneva session, which took place from 3 May to 23 July, included State responsibility; international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities); reservations to treaties; diplomatic protection; unilateral acts of States; and jurisdictional immunities of States and their property.

The Commission recommended that the General Assembly adopt the draft preamble and articles as a “Declaration on nationality in relation to succession of States”; and that it consider the Commission’s work on the subject to be concluded.

The scope of application of the draft articles is limited to the nationality of individuals; they are divided into two parts. The provisions of Part I are general, applying to all categories of succession of States. Part II contains specific provisions on attribution and withdrawal of nationality and on the right of option applicable in different categories of succession of States. Those categories are limited to: transfer of part of a territory; unification of States; dissolution of a State; and separation of a part of a territory.

A key provision of the draft text -- article 1, right to a nationality -- states 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, has the right to the nationality of at least one of the States concerned. States are obliged to take all appropriate measures to prevent the occurrence of statelessness, under article 4 of the text.

During its discussion of “State responsibility”, the Commission referred specific chapters and articles to its drafting committee, and subsequently took note of that Committee’s report. It also approved 20 draft guidelines for the first chapter of a practice guide on the subject of “reservations to treaties”. It decided to restructure the first chapter, which includes the definition of reservations and their scope and clarifies distinction between reservations and interpretative declarations.

During the session, the Commission established a working group on “jurisdictional immunities and their property”, and charged it with preparing comments as requested by the General Assembly in resolution 53/98. The Commission took note of the working group’s report, and adopted its suggestions on the concept of State for purposes of immunity; criteria for determining the commercial character of a contract or transaction; concept of a State enterprise or other entity in relation to commercial transactions; contracts of employment; and measures of constraint against State property.

In its consideration of “unilateral acts of States”, the Commission examined the second report of its Special Rapporteur, which contain seven draft articles on that subject, covering such issues as the definition of unilateral acts and the invalidity of such acts. It agreed to take as the basic focus for its study on the topic, and as a starting point for the gathering of State practice thereon, the concept of “a unilateral statement by a State by which such State intends to produce legal effects in its relations to one or more States or international organizations and which is notified or otherwise made known to the State or organization concerned”. The Commission secretariat was asked to send a questionnaire to governments inquiring about their practice and position concerning certain aspects of unilateral acts.

With regard to “international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities)”, the Commission decided to defer consideration of the question of international liability, pending completion of the second reading of the draft articles on the prevention of transboundary damage from hazardous activities.

Among its other actions, the Commission appointed Christopher J.R. Dugard its Special Rapporteur on “diplomatic protection”. It examined once again the issue of a split session and decided to provide the Assembly with updated information on procedures to improve its relations with the Sixth Committee, as well as its cooperation with scientific institutions and international and national organizations concerned with international law questions.

In keeping with the General Assembly’s wishes, the Commission will hold a split session next year in Geneva -- from 4 May to 9 June and from 10 July to 18 August 2000.

The 34-member expert Commission was established by the General Assembly in 1947 to codify customary international law and promote the codification and progressive development of international law in areas where customary law did not exist or had not sufficiently evolved. Its experts represent the world’s principal legal systems.

International legal instruments which have emerged as a result of the Commission’s work include: the 1961 Vienna Convention on Diplomatic Relations; the 1963 Vienna Convention on Consular Relations; the 1969 Convention on the Law of Treaties; the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; and the 1975 Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character.

The others include the 1978 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts; the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations; and the 1997 Convention on the Non-navigational Uses of International Watercourses.

Statements

ZDZISLAW GALICKI (Poland), Chairman of the International Law Commission, introducing the Commission’s report, focused on its overall structure and on the first substantive chapter, Chapter IV, on “nationality in relation to the succession of States”.

He said although nationality was essentially governed by national legislation, the competence of States in that area might be exercised only within the limits set by international law. As a result of the development of human rights law since the Second World War, the traditional approach, based on the preponderance of the interests of States over those of individuals, had given way to a balancing of the legitimate interests of both States and individuals. This had been taken into account in the preamble of the draft declaration.

The preamble, he said, expressed the Commission’s fundamental concern for the protection of the human rights of persons whose nationality might be affected following a succession of States. It was essentially based on the preambles to the Vienna Conventions on Succession of States of 1978 and 1983.

He went on to describe in detail the 26 articles of the two-part draft Declaration. A key provision, he said, was article 1, whose core element was the right of everyone to a nationality. That right had been enunciated in the Universal Declaration of Human Rights with reference to the specific situation of the succession of States. The right embodied in article 1 in general terms had been given more concrete form in subsequent provisions. The article should thus not be read in isolation.

He said the recognition of the possibility of multiple nationalities resulting from a succession of States did not in any way mean that the Commission intended to encourage a policy of multiple nationalities. The draft articles were completely neutral on the question, leaving it to the discretion of individual States. Moreover, he said articles, 8, 9 and 10 (loss of nationality upon the voluntary acquisition of the nationality of another State) provided sufficient opportunities for States that favoured single nationality to apply such a policy.

He said Article 3 limited explicitly the application of the articles to successions of States occurring in conformity with international law. It was based on the relevant provisions of the two Vienna Conventions on the Succession of States. The Commission had not studied questions of nationality arising in situations of illegal annexation of territory. However, the commentary to the article stressed that its provisions were without prejudice to the “right of everyone to a nationality”, in accordance with article 15 of the Universal Declaration.

The right of persons to a nationality of at least one of the States concerned in a succession was closely linked, he said, to the obligation to avoid statelessness as indicated in article 4. When there was more than one successor State, not all of them had the obligation to attribute its nationality to every single person concerned. A State could reasonably be asked only to take appropriate measures within the scope of its competence as delimited by international law. The elimination of statelessness was to be achieved by means of the application of the entire set of draft articles, in particular through coordinated action of States concerned, he said.

Article 5 addressed the problem of the time-lag between the date of the succession of States and the adoption of legislation or, the conclusion of a treaty between those States, on the question of the nationality. He said the Commission felt it important to state the assumption that, on the date of the succession, the successor State would attribute its nationality to persons concerned who were habitual residents of the affected territory.

He said article 6 dealt with legislation on nationality and other connected issues. In the case of a succession of States, in spite of the role reserved to international law, domestic legislation on nationality always had an important function. The main focus of the article was the issue of the timeliness of internal legislation.

The attribution of the nationality of the successor State was subject to certain exceptions of a general character, which applied to all types of succession. Those exceptions, spelled out in article 8, concerned both the obligation of the successor State to attribute its nationality and the power of the State to do so with respect to persons who had their habitual residence in another State and also had the nationality of that State.

Article 12 dealt with the problem of family unity, he noted. States concerned were obliged to eliminate legislative obstacles that families might encounter. The Commission had introduced a specific provision –- article 13 -- on the nationality of newborn children. That was justified in the light of the importance that various international instruments -- such as the Convention on the Rights of the Child -- attached to children’s rights, including their right to acquire a nationality.

He said that while the application of article 13 was limited to the cases of children born after the date of the succession, there was no further limitation in time. The Commission felt such an unlimited application was justified by the main purpose of the article, which was avoidance of statelessness, and the fact that the rule contained in the article could be found in several other instruments.

Part II of the draft text was divided into four sections devoted to specific categories of succession of States. The Commission, on the basis of State practice, gave particular importance to habitual residence in determining the criteria for establishing the rules concerning the attribution of the nationality of the successor State, the withdrawal of the nationality of the predecessor State and the recognition of a right of option.

Other criteria, such as the place of birth or the legal bond with a constituent unit of the predecessor State, however, became significant for the determination of the nationality of persons who had their habitual residence outside the territory of a successor State, he said. That was particularly true when they lost the nationality of the predecessor State, as a consequence of the latter’s disappearance.

The right of option for the retention of the nationality of the predecessor State was not envisaged for all persons qualified to acquire the nationality of the successor States, he added. That right was limited to those persons who, at the same time, fulfilled one of the criteria in articles 24 and 25.

He said the Commission had decided to recommend to the General Assembly the adoption of the draft articles on nationality of natural persons in relation to the succession of States in the form of a declaration. He noted that the United Nations High Commissioner for Refugees had found the Commission’s draft text to be very useful to the works of his Office.

HANS WILHELM LONGVA (Norway), speaking on behalf of the Nordic countries, said they favoured having the Commission undertake a careful selection of topics and subsequent elaboration of a clear definition of the questions to be considered. Such an approach would also ensure more appropriate guidance for the Special Rapporteurs. The Commission had been benefitting from a continued evaluation and dialogue with the Sixth Committee.

Inadequate attendance at the Commission's meetings had long been an issue of concern, he continued. Split sessions would allow for extended intersessional deliberations, which could enhance the productivity of the second part of a session. Ensuring that the report of the Commission was issued well before the beginning of the work of the Sixth Committee was a prerequisite for efficient Committee discussion, he stressed.

Further improvements in the Commission's work would depend to a large degree on the ability and effort of governments to respond to the Commission's requests for information essential to the Commission's work. Constraints on resources, faced in particular by smaller countries, might affect the ability to respond. Consequently, the comments of several governments were in fact only submitted during the meetings of the Sixth Committee. He expressed concern that oral statements made in the Sixth Committee did not always get the attention they deserved. All opinions should be considered with equal care, regardless of the form in which they were presented. Meanwhile, an improved system of questionnaires would ensure more and better information for the Commission.

The Nordic countries supported strengthened cooperation between the Commission and other international bodies concerned with international law, he said. As an example, he cited contact between the Commission and the International Court of Justice; the two had mutually reinforcing functions. The Commission's consultations with individual experts, scientific research institutions and other national and international organizations were equally important.

Stating that the main fields of primary law had now been codified, he suggested that the Commission concentrate on the secondary rules of law concerning responsibility of States. The focus should be on practical needs rather than theoretical debates. He recommended postponing further elaboration on environmental issues, saying the Commission should continue to focus on general international law rather than on specialized areas.

SHOTARO YACHI (Japan) said the harsh criticism directed at the Commission over "the stagnant process of codification" was misplaced. In various fields, international law either remained underdeveloped or needed to be subject to review. The international environment was changing at an ever-increasing speed. The Commission, however, did need to coordinate more closely with other law-related bodies, such as the Sixth Committee.

He expressed concern over the situation of State practices with

regard to State immunity. Restrictive immunities varied considerably

depending on the legal tradition of the forum State. While domestic

legislation on the issue was a significant contribution to the

development of the law on State immunity, it was not the ultimate

solution for providing an international standard in the practices of

State immunity. The question was how to establish basic rules

governing the modalities of giving State immunity at the international

level when most countries were shifting to a restrictive doctrine of

immunity. The Sixth Committee should resume substantial discussions

on the draft articles on jurisdictional immunities of States, with a

view to adopting a convention.

The draft articles on nationality struck a proper balance between

the right of an individual to obtain nationality and the right of the

State to grant nationality. He supported the recommendation to adopt

them in the form of a declaration. He welcomed the Commission’s

initiative in the field of international environmental law, but said

that the Commission should refine its scope of work and choose

concrete themes very carefully.

GERD WESTDICKENBERG (Germany)said his country agreed with the changes made to the draft articles on nationality, including changes made in the organization of the articles and wording of the Preamble. He also welcomed the change made in article 7, limiting the retroactive effect of the article to the extent strictly necessary. He supported the recommendation to adopt the draft articles in the form of a declaration. With that adoption, the work of the Commission on the topic would be complete. It should not take up the question of the nationality of legal persons in relation to the succession of States; there was no practical need for such work.

Concerning jurisdictional immunities of States, he said the question of how to deal with constituent units of a federal State and political subdivisions of the State was very difficult. The text adopted by the Commissiion might be a step forward. He endorsed the removal of any reference to the “nature and purpose” tests proposed to determine the commercial character of a contract or transaction. On the issue of State enterprises, he supported the Commission’s drafting of a short rule.

The only way to deal with contracts of employment under article 11 was to provide a non-exhaustive list of employees performing functions in the exercise of governmental authority, he said. The issues involved in measures of constraint against State property were very delicate and complex and required more work. The question of jurisdictional immunity in actions arising out of ius cogens norms was a central part of the subject and should be focused on in future work.

ORLANDO REBAGLIATI (Argentina) said that expanding relations between the Commission and other bodies concerned with international law were extremely important. He highlighted the recent close contact between the Commission and the International Court of Justice. The Commission could further enrich its work by taking into account the judicial efforts by regional legal bodies such as the Interamerican Law Commission, which had generated numerous important norms of international law. He also recommended closer contacts with counterpart organizations dealing with Asia, Africa and Europe. Such relationships should not be limited to protocol contacts but should include an ongoing exchange of information and experience with commentaries.

Argentina was following with great interest the long-term programme of work of the Commission, he said. The usefulness and timeliness of topics should be taken into account when deciding its agenda. Topics should adequately meet the requirements of generality and lasting interest, and there should enough maturity to the issues chosen that they would lend themselves to codification.

He hoped that the work of the Commission would be appreciated by the international community. He appreciated the efforts being made in the Sixth Committee and the Secretariat to ensure that the Commission had the time and resources it needed to carry out its work.

He was pleased with the draft articles on nationality. They would be an outstanding contribution to the development of international law. Many of the provisions were in accordance with other judicial understandings in that area. The protection of human rights had also been taken into account in the drafting. Referring to the still incomplete process of decolonization in some countries, he said that while the draft articles did not contain specific provisions for those circumstances, the principles and rules in the draft could resolve the problems that could arise in that context. Finally, he supported the adoption of the draft articles in the form of a declaration.

ROBERTO LAVALLE (Guatemala) said the adoption of the draft articles as a declaration, as recommended by the Commission, was innovative in certain respects. He agreed with that recommendation, and said it would have advantages over a treaty text.

He recalled comments Switzerland had made during the first reading of the draft articles in 1997, contained in a conference room paper. Participation in the two Vienna Conventions on the Succession of States had been meagre. There were only a few differences between the 1997 draft text and the present one, he said, expressing regret that most of the proposals made during the first reading had not been adopted. As a result, the majority of the provisions of the present text would be binding.

In particular, Guatemala regretted that the draft text had not expressly spelled out the general principle that successive States had a duty to grant nationality to persons who were habitual residents at the time of succession.

He supported a Swiss proposal made in 1997 with respect to articles 5 and 6, which corresponded to articles 6 and 7 of the new text. Those proposals were also contained in the conference room paper. Guatemalan proposals made on article 20 and others on article 14 by France and Switzerland had not been taken into account in the drafting of the new text. Offering drafting suggestions in respect of articles 8 and 10, he urged the harmonization of the English and Spanish texts.

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