LEGAL COMMITTEE CONTINUES DEBATE ON NATIONALITY TEXT

Press Release
GA/L/3120

LEGAL COMMITTEE CONTINUES DEBATE ON NATIONALITY TEXT

Also Hears from World Court Delegation, Receives Draft Resolution on Impact of Sanctions on Neighbouring States

While the International Law Commission’s draft text on the legal parameters for establishing the nationality of individuals in situations where there has been a succession of States has generally drawn a favourable response in the debates of the Sixth Committee (Legal), the Committee heard criticisms of some aspects of that text from Eastern European speakers this morning.

The draft, contained in the annual report of the International Law Commission, comprises a preamble and a set of draft principles, which the Commission has recommended that the General Assembly adopt in the form of a declaration. Stressing the paramount principle that no person should be made stateless, the text treats various possible scenarios for succession, including transfer of part of a territory, unification of States, dissolution of a State and separation of part of the territory.

Noting that the draft had departed considerably from the traditional approach to the subject, which had commonly confined nationality issues to the domain of domestic law, the representative of Croatia urged that States not be placed under undue constraints when applying its provisions. A certain flexibility must be preserved, she said, both in terms of the legal solutions envisaged in the articles and of the choice of final form in which to adopt the articles.

The representative of Slovenia doubted whether the criterion of habitual residence was the most suitable one for determining an individual’s nationality in the event of the dissolution of a federal State and constitution of its basic units as new States. In that instance, the citizenship of the former republics should be the main criterion. Furthermore, in the event of the dissolution or separation of States, the pre-existent internal boundaries of constituent units became international frontiers. Thus, the phenomenon of statelessness or multiple nationality, which had been of concern to some speakers, did not arise.

By contrast, the speaker for the Republic of Korea felt that habitual residence in the territory affected on the date of succession was the most important criterion for the determination of nationality in the successor States. Likewise, the representative of Pakistan, who opposed an approach that would allow

Sixth Committee - 1a - Press Release GA/L/3120 17th Meeting (AM) 27 October 1999

individuals to choose their nationality after succession had taken place, viewed habitual residence as the most important factor in the relationship between natural persons and successor States.

The Republic of Korea also attached particular importance to article 12, dealing with the unity of families in the nationality context, explaining that many of its people aspired to reunite with family members from whom history had separated them. The representative of Costa Rica highlighted the importance of article 12, but would have preferred a provision that would have allowed all family members to acquire the same nationality. Similarly, while he welcomed the fact that the draft gave a child born after succession the opportunity to avoid statelessness, he would have preferred that it stipulate the child’s right to the parent’s nationality.

The representative of Poland was not convinced that certain provisions in the draft reflected the current state of international law. In particular, it was not clear that every person had a right to nationality under general customary law, although such a right would be desirable. Poland would have preferred a wider retroactive application of the attribution of nationality by successor States than what the Commission had envisaged.

Also speaking in the debate were the representatives of Côte d’Ivoire, Hungary, Costa Rica, Brazil, Venezuela, Russian Federation and Pakistan.

The representative of Bulgaria introduced a draft resolution on implementation of Charter provisions related to assistance to third States affected by the application of sanctions. The text would have the General Assembly invite the Security Council to consider developing further its avenues for consultation with States that are facing or likely to face special economic problems arising from the implementation of measures imposed by the Council. It would strongly recommend that the Council strive to further enhance the functioning of its sanctions committees, streamline their procedures and facilitate access to them by the affected third States. It would call for a Sixth Committee working group to work on this issue during the Assembly’s next regular session

Also this morning, the Committee welcomed a delegation from the International Court of Justice. Led by the Court’s President, Judge Stephen Schwebel, the delegation included Vice-President Judge Gilbert Guillaume and Judges Christopher Weeramantry, Raymond Ranjeva, Rosalyn Higgins and Gonzalo Parra-Aranguren, and the Registrar of the Court, Eduardo Valencia-Ospina.

Judge Schwebel, who had addressed the General Assembly in plenary session yesterday, stressed to the Committee the need for cooperation between the Court and the parties to the cases before it. Noting that the Court had an unprecedented docket of 24 cases at present, he said that the pace of its work meant that it must be able to depend on such cooperation.

Other topics in the International Law Commission’s report that remain to be debated by the Committee 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

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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 this afternoon at 3 p.m. to conclude its discussion of nationality in relation to succession of States and to commence discussion of the chapter in the report covering jurisdictional immunities of States and their property.

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue its consideration of the report of the 1999 session of the International Law Commission. It expected to conclude its debate on the chapter of the report that covers nationality issues in situations of succession of States.

A draft preamble and a set of draft articles on those issues are included in the Commission’s report (document A/54/10). 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.)

Statements

BONIFACE OURAGA OBOU (Côte d’Ivoire) said the criterion of habitual residence proposed by the International Law Commission for nationality might pose some dangers to some developing countries. Nationality created obligations for individuals while providing rights and prerogatives for a State. However, the criterion of habitual residence did not seem to take into account the ties of obligations of being a subject.

In seeking criteria that were coherent, lasting and transparent for granting nationality in cases of succession of States, Côte d'Ivoire would like the Commission to continue to build upon the criteria that had previously been used by the International Court of Justice in its “Nottebohm” jurisprudence, he said.

He also urged the Commission to rely on less controversial criteria in formulating guidance for developing countries in handling nationality questions involving migrant workers.

GYORGY SZENASI (Hungary) commended the Commission for its successful completion of the draft articles on nationality in relation to succession of States. That issue continued to be a sensitive political, legal and practical problem. The draft presented a workable framework of substantive issues and procedures. Hungary had concentrated on articles 22 and 24, which were aimed at preventing successor States from refusing to attribute their nationality to the affected persons, or establishing conditions that were too difficult to meet. He noted with satisfaction that those articles had been further clarified, and that article 16, prohibiting arbitrary decisions concerning nationality, had been elevated to the level of general principle.

Further measures preventing statelessness were included in article 20, which declared that a predecessor State could not withdraw its nationality before the persons concerned acquired the nationality of the successor State, he noted. General acceptance of, and strict adherence to, the principles set forth in those articles would represent a further step to improve safeguarding of human rights. It could also provide additional protection against possible negative effects in a traditionally volatile period of time, when minority sectors of populations could be subjected to adverse measures.

He supported the adoption of the draft. While Hungary had been ready to consider a more formal instrument than a declaration, it was nevertheless convinced that this document would serve as a guiding force, regardless of its format. He agreed that the Commission should not pursue the same inquiry with respect to nationality of legal persons.

BERND NIEHAUS (Costa Rica) said the issue of nationality in relation to succession of States remained a controversial political issue for some States that had been directly or indirectly involved in the process of succession. In the context of human rights, it was impossible to view the granting of nationality as simply a privilege of States. He appreciated the delicate balance that had been achieved by the Commission between the rights of individuals and the interests of the States involved.

The draft recognized an individual’s right to nationality and called for the States involved to take appropriate measures to prevent statelessness, he noted. Article 8 established a realistic limit on the obligation to grant nationality. Furthermore, the text was neutral on the issue of dual nationality and allowed States to establish their own legislation and conditions for the attribution of nationality in conformity with their judicial systems.

He was pleased to see the inclusion of the obligation by which States had to take into account the wishes of affected persons when two or more States were involved. He stressed the importance of article 12, saying that the family was the basic unit of society and deserved to be protected. He would have preferred a stricter wording that would have allowed all family members to acquire the same nationality. He welcomed the fact that article 13 gave a child born after succession the opportunity to avoid statelessness, but he would have preferred that the child’s right to the parent’s nationality be stipulated.

Although he would have preferred a few isolated changes in the document, he generally approved of the draft articles. While a treaty would have had the advantage of being more binding, a declaration could serve as an inspiration in the progressive development of international customary law. He regretted that the nationality of legal persons would not be taken up by the Commission.

LJERKA ALAJBEG (Croatia) said the draft articles would greatly contribute to the strengthening of the legal regime governing the nationality of natural persons in case of succession of States. Since the draft had departed considerably from the traditional approach to the subject, which had commonly confined the issue to the domain of domestic law, States should not be placed under undue constraints when applying the articles. A certain flexibility must be preserved, both in terms of the legal solutions envisaged in the articles and the choice of final form in which to adopt the articles.

She said that two important principles had been consistently followed throughout the text: (1) that proposed solutions must be based on an “appropriate connection” between the State and the individual; and (2) that each type of change in regard to the predecessor State, that is, unification, dissolution, separation, must be addressed separately in legal terms. She associated herself with comments expressed by other speakers on article 22, to the effect that it gave “too much prominence to the criterion of habitual residence, in disregard of recent practice in Central and Eastern Europe where the primary criterion is that of the nationality of the former units of federal States”. The nationality of the constituent unit should be introduced as a criterion that the successor State, in cases of dissolution of federations, could choose as the dominant one. The “habitual residence” criterion might be recommended in that case as a subsidiary one, subject to the domestic legislation of the successor States.

As to the form in which the draft articles should be adopted, a declaration or a resolution adopted by the General Assembly would be more appropriate than a treaty, she said. A declaration would constitute an authoritative response to the need for clear guidelines, without crossing the fine line into the inherent domestic jurisdiction of a State over issues of nationality, within the confines set by international law.

JOAO CLEMENTE BAENA SOARES (Brazil) said the report of the Commission enabled Member States to make crucial decisions on matters of great importance to the international community. It was quite clear that there was still much to be done in the Commission. It was very important that appropriate new topics be included in its long-term programme of work, notwithstanding the difficulties or complexities surrounding some topics.

It was crucial for other international and regional bodies to step up their dialogue with the Commission, and for such contacts not to be limited to formal sessions, he said. There should be an opportunity for all sides to offer observations on the work being done. He further recommended that the academic community be involved. There needed to be constant interaction between the Commission and the Sixth Committee. He acknowledged the proposal to shorten the Commission’s questionnaires in future, but said there was no reason not to respond and offer observations on the Commission’s work in the meantime.

The final document on nationality in relation to succession of States was an indication of the excellent work being done in the Commission, he went on. The text was based on a humanist philosophy. It was basically concerned with human rights, in particular the right of every individual to nationality, balancing the legitimate interests of States with the legitimate rights of individuals.

He agreed that the text should be adopted in the form of a declaration. A convention would have been legally binding, but a declaration would achieve greater universality. More important than the form was the political resolve of States to apply and comply with what had been agreed upon. Noting the Commission’s decision not to pursue the issue of nationality of legal persons, he said that this did not preclude the possibility of States taking up that question in the future, if they wished to do so.

ANDREJ GRASSELLI (Slovenia) said it was questionable whether the criterion of habitual residence was the most suitable one in the event of the dissolution of a federal State and constitution of its basic units as new States. The citizenship of the former republics should be used as the main criterion in determining nationality. Laws concerning the citizenship of former constituent units had been harmonized, as a rule. Furthermore, in the event of the dissolution or separation of States, the pre-existent internal boundaries of constituent units became international frontiers. The phenomenon of statelessness or multiple nationality did not therefore occur. That was the best possible solution. In addition, historical circumstances should be taken into account. The issue of population residing in third countries could be solved by using the same criteria as had been applied to a large extent in the recent practice of States.

In the event of the dissolution of a federal State, he said, habitual residence should serve as an auxiliary criterion. Persons habitually residing in the territory of a successor State who, on the basis of the criterion of republic citizenship became ex lege nationals of the other successor State, could in that way acquire the nationality of the State in which they were residing. They should be enabled to choose whether to reside in the successor State as foreigners. The status provided for in article 14 was too general; it did not grant the right of permanent residence, as provided for in the 1997 European Convention on Nationality.

Slovenia would prefer the inclusion of a provision that would stipulate the recognition of the nationality of constituent units of federal States in the event of the dissolution of States. It had proposed a similar solution last year, its representative said.

JERZY KRANZ (Poland) agreed with the fundamental principles of the draft articles, such as the right of every person to possess a nationality, the prevention of statelessness, and the right of the persons concerned to opt for a specific nationality strictly connected with the obligation not to impose nationality upon individuals against their will. However, Poland was not convinced that certain provisions included in the draft reflected the current state of international law. In particular, it was not clear that every person had a right to nationality under general customary law, although such a right would be desirable. Contrary to the stance adopted by the Commission, Poland would have preferred a wider retroactive application of the attribution of nationality by successor States, reflecting State practice on that point.

Poland firmly believed that the very interesting but disputable effects of the succession of States upon the nationality of corporations should not be dealt with by the Commission. He welcomed the adoption of the draft articles as a declaration.

He said his Government had been closely following State practice with regard to State immunity and was aware that most countries were shifting towards a restrictive doctrine of immunity, one which Poland endorsed. He welcomed the Commission’s resumption of work on that issue and hoped that the work would culminate in a draft convention. The Commission’s proposal to bring the concept of “State” for purposes of immunity in line with the concept of State in the State responsibility context was valuable and worth considering. He also welcomed the broadening of the question of jurisdictional immunity vel non in the case of acts of States that violated human rights norms having the character of ius cogens.

HWANG YONG-SHIK (Republic of Korea), clarifying his country's interpretation of the draft articles, said he understood that the attribution or withdrawal of nationality remained ultimately within the domain of national legislation. It could also be regulated by a treaty between the States concerned. He welcomed the decision to recommend that the draft be adopted as a declaration and not a convention.

The most important element regarding the acquisition of nationality in successor States was whether the persons concerned had their habitual residence in the territory affected on the date of succession, he said. Article 12, on family unity, should be given due attention from a humanitarian point of view. His country attached great importance to that article in light of the fact that many of its people had a strong aspiration for reuniting with family members who had been separated from them for historical reasons.

Turning to jurisdictional immunities, he said any alternative to the current definition of commercial transactions that appeared to depend too heavily on the competence or non-competence of the organs of the forum State could result in a fragmentation of rules rather than a standardization. Arbitrary interpretation of the meaning of the phrase, “commercial nature”, should be avoided. Therefore, certain suggestions of the working group on that subject should be carefully studied so as not to undermine the benefits of a restrictive doctrine.

The Commission’s discussions on unilateral acts of States had focused on the core constituent elements of a legally binding unilateral act and thus pinpointed the so-called “strictly unilateral legal acts of States”, he said. Nevertheless, that proposed definition did not squarely settle the issue of how one could discern legally valid promises from mere political commitments. He added that the element of intent could be hard to prove and was thus susceptible to diverging interpretations.

Given the relative scarcity of readily available international practice and sufficient doctrine on “observance and revocation” of unilateral legal acts, a more patient and extensive accumulation of State practices was required before the Commission could effectively tackle such issues. On international liability for injurious consequences arising out of acts not prohibited by international law, he said the duty of prevention should not be regarded as an obligation of result but rather as one of conduct, as embodied in the relevant international environmental treaties. The draft articles on prevention should not embrace the concept of punitive damage.

NELSON GONZALEZ (Venezuela) stressed the need for close ties between the Sixth Committee, as representatives of States, and the International Law Commission, as a body of legal experts. It was essential that consideration of items for the Commission’s work be based on a broad balance of doctrine and State practice. It would be useful for the Commission to strengthen its ties with other international institutions and regional bodies as well as treaty bodies on human rights issues.

In general, he believed that the Commission’s work should culminate in the formulation of draft conventions. However, for practical reasons, he supported the draft articles on nationality in relation to succession of States being adopted in the form of a declaration. The draft met the objective of codifying and progressively developing international law in the area of nationality. It was a balanced text that took into account both the rights of States to grant nationality in certain circumstances and the rights of individuals to request and obtain nationality. Furthermore, the draft enshrined such fundamental norms and principles as the right to have options.

With the adoption of the draft articles, the Commission would have completed its work in this area, he said. There was no need for it to work on the nationality of legal persons in relation to succession of States.

ILYA ROGACHEN (Russian Federation) said the draft articles were a valuable contribution to the codification and progressive development of international law. There were provisions that could be applied to cases involving individuals who had been denied rights during succession of States. He shared the Commission’s views on the prevention of statelessness. The granting of the right to nationality was significant; the Commission’s approach to that issue was correct. States must fulfil their obligations in the event of succession. He supported the provisions dealing with presumption of nationality (article 5) and the effective date for attribution of nationality in relation to the succession of States, as well as the acquisition of nationality following the exercise of an option (article 7). He said some adjustments were needed to correct the definition of “succession of States” in article 2, which was taken from the two Vienna Conventions. The proposal on the concept of habitual residence was a key one; its application and interpretation should be uniform.

The Russian Federation attached great importance to the establishment of a clear criterion for the determination of nationality by successor States. It had reservations to some provisions of article 24, concerning the attribution of the nationality of the successor State.

The Russian Federation would only support the approval of the draft articles on the understanding that the text would be further developed with a view to its eventual adoption as a convention.

JAMSHEED A. HAMID (Pakistan) said the question of conferring or abrogating nationality fell entirely within the competence of a State. That was one of the attributes of sovereignty; there should therefore be no derogation from it. He commended the Commission’s efforts to strike a balance between that interest and the interests of individuals in avoiding statelessness. There were, however, provisions in the draft articles that might pose problems for his country. While States should avoid creating statelessness, the draft articles should not be seen as sanctioning dual nationality, which many States, including his own, did not recognize.

Furthermore, he said, Pakistan was not in favour of the “dual option” principle where the right was given to individuals to choose their nationality after the succession took place. It strongly supported the principle that a person who had the nationality of the predecessor State, and who resided in the territory affected by the succession, should acquire the nationality of the successor State on the date of succession. Habitual residence should be the most important and vital factor linking the natural person and the successor State.

However, he stressed, Pakistan had no problem with the text’s provisions dealing with the unity of the family.

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