SIXTH COMMITTEE DEBATED MERITS OF DECLARATION VERSUS CONVENTION AS INSTRUMENT TO CODIFY NATIONALITY RIGHTS

Press Release
GA/L/3119

SIXTH COMMITTEE DEBATED MERITS OF DECLARATION VERSUS CONVENTION AS INSTRUMENT TO CODIFY NATIONALITY RIGHTS

As the Sixth Committee (Legal) continued this morning its discussion of the report of the International Law Commission, most speakers focused their attention on a text on nationality of natural persons in relation to the succession of States.

The text, which the Commission has recommended that the General Assembly adopt in the form of a 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 draft 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.

A number of Committee members felt that a declaration would offer advantages over an international convention. The Nordic States, represented by Finland, noted that this option would not require as much time to enter into force; thus, it would provide an early, yet authoritative response to the need for clear guidelines on the subject. Similarly, the representative of the Czech Republic said that a declaration was a more flexible instrument.

The representative of France, however, insisted that the objectives of the instrument would not be achieved as long as it was not binding on States. He urged that more thought be given to the idea of making the instrument a convention, on a par with the two Vienna Conventions on the Succession of States.

Also this morning, the representative of Chile expressed support for the Commissions's preparation of a practice guide for States on reservations to treaties, as that was a new element in the practice of States, and "confusing signals" existed at the moment. The inclusion of a definition of an interpretative declaration, as distinct from a reservation, was very important. The guide must establish the conditions under which reservations were prohibited, as well as those situations where unilateral declarations did not constitute reservations.

Sixth Committee - 1a - Press Release /GA/L/311 16th Meeting (AM) 26 October 1999

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); diplomatic protection; unilateral acts of States; and jurisdictional immunities of States and their property.

The 34-member expert Commission was established by the General Assembly in 1947 to codify customary international law and to promote the codification and progressive development of international law in areas where customary law did not exist or had not sufficiently evolved.

The Committee will meet again tomorrow, 27 October, at 10 a.m. to continue discussion of the Commission's report.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to continue its consideration of the report on the 1999 session of the International Law Commission, focusing on nationality issues in situations of succession of States.

The report (document A/54/10) contains a draft preamble and a set of articles on those issues; the Commission has recommended them for adoption by the General Assembly in the form of a declaration. (For background on the Commission’s report, see Press Release GA/L/3118 of 25 October 1999).

Statements

JAIME LAGOS ERAZO (Chile) expressed satisfaction with the consultations that were held among States on specific issues with regard to the Commission's methods of work. The specificity of the questionnaires had made them useful, and they had allowed for the inclusion of comments by States.

The issue of reservations to treaties was of great importance, as treaties were a fundamental instrument in international relations, he said. Thus, Chile supported the proposal to prepare a practical guide to serve as a basis for the practice of States. It had been a wise decision not to attempt a revision of the norms and standards enunciated in the Vienna Conventions. To have done so could have led to a process that might have weakened the conventions instead of strengthening them. Another advantage to a guide was that it could facilitate the development of new customary rules.

The concept of reservations in the draft guide did not completely coincide with that of the Vienna Conventions; it reflected a new element in the practice of States, he said. Sometimes reservations not only modified certain articles in a treaty but actually affected the application of the convention itself. He considered the inclusion of a definition of an interpretive declaration to be very important, as this was a device to which States often resorted. Distinguishing between a reservation and an interpretive declaration was very important, as the two had different purposes. It was important that the guide establish the conditions under which reservations were prohibited, as well as those situations where unilateral declarations did not constitute reservations. Confusing signals existed at the moment.

He said there should be a determination as to whether international law allowed for the unilateral acts of States, in the sense that such acts had a legal impact. Referring to studies on the nature of a unilateral act, he agreed that only autonomous unilateral acts, that is, those not born out of other legal acts that the State had the right to carry out, could be included in this category. The element of intention was also fundamental.

HOLGER ROTKIRCH (Finland), speaking on behalf of the Nordic countries, said the proposed declaration would be a useful and timely contribution to the development of uniform solutions to the problems of changes of nationality resulting from the succession of States. No serious attempt had been made before to create a universal instrument to regulate that question. The Nordic countries had previously welcomed the consistent focus, throughout the draft articles on human rights, on prevention of statelessness as well as the prohibition of discrimination on any ground. With the development of human rights law, it had been increasingly recognized that State discretion in questions relating to nationality must be limited, in recognition of the fundamental rights of individuals.

The Nordic States agreed that the draft articles should be adopted in the form of a declaration. While the entry into force of a multilateral convention normally required a lengthy period of time, a declaration by the General Assembly would provide an early, yet authoritative response to the need for clear guidelines, he said.

A number of States had been confronted during the past decade with problems of State succession. Since decisions on nationality often had serious consequences for the persons involved, clear rules might help to prevent human tragedies. He fully endorsed the declaration's adoption during the Assembly's present session and saw it as a welcome contribution to the purposes of the Decade of International Law.

RONNY ABRAHAM (France) said his country had last year submitted comments and criticisms on the draft articles before the Committee. He did not think the Commission's recommendation that they be adopted as a declaration was appropriate. Some of the rules, as a declaration, would tend to change customary law. Meanwhile, the objectives of the instrument would not be achieved as long as it was not be binding on States. Some provisions could even be challenged.

He said more thought should be given to the idea of making the instrument a convention instead of a declaration. Noting the references made to the two Vienna Conventions on the Succession of States, he said it seemed that it had originally been intended that the text should be another international convention.

JIRI MALENOVSKY (Czech Republic) was satisfied with the structure of the draft articles. It was wise to have a set of general provisions pertaining to all categories of succession, followed by specific rules applicable to individual instances. He also supported the Commission's decision to confine the scope of the study of the topic to natural persons. The question of legal persons was undoubtedly important and deserved the Commission's attention, but it should be dealt with separately at a later stage.

The Czech Republic supported the Commission's definition of the concept of nationality. The essence of the question of nationality and all other rules on the subject must comply with the principle defined in draft article 1. One of the main goals of States in drafting a nationality law should be fighting statelessness.

He said international law on the specific categories of succession of States still lacked discernible and clear rules that would balance human rights aspects on the one hand and the norms of State succession, as a special field of international law, on the other. His country and others had become victims of those uncertainties in international law. The provisions of Part II of the draft articles could therefore provide valuable guidance and a source of inspiration for future situations. The adoption of a declaration could have some advantages over the rigid form of a convention, traditionally reserved for the finalization of the Commission's work.

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