ASSEMBLY APPROVAL FOR DRAFT ARTICLES ON NATIONALITY, SUCCESSION OF STATES IS SOUGHT IN LEGAL COMMITTEE RESOLUTION
Press Release
GA/L/3171
ASSEMBLY APPROVAL FOR DRAFT ARTICLES ON NATIONALITY, SUCCESSION OF STATES IS SOUGHT IN LEGAL COMMITTEE RESOLUTION
20001116Key Provision Would Be to Avoid Any Person Being Stateless; Other Texts Address Jurisdictional Immunities, UN Administrative Tribunal
Draft articles on nationality in relation to the succession of States elaborated by the International Law Commission would be adopted by the General Assembly in the form of a declaration according to one of three draft resolutions approved by the Sixth Committee (Legal) without a vote this morning.
A key provision of the draft articles 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 statelessness. The Assembly would invite governments to submit comments and observations on the codification of the topic as a convention.
The representative of Slovenia spoke in explanation of position on that draft, saying it was her countrys understanding that the draft articles would serve only as guidance for State practice.
The other drafts approved by the Sixth Committee covered a convention on jurisdictional immunities of States and their property, and a review of the Statute of the Administrative Tribunal of the United Nations. By the first of those two, the Assembly would establish an ad hoc committee to continue work on a convention on jurisdictional immunities of States and their property, which would meet for two weeks in March 2002.
The representative of Canada spoke in explanation of position, saying she understood that the title of the ad hoc committee would not prejudge the final form of the draft articles.
Speaking in the general debate on that issue before action on the draft, were the representatives of Colombia (on behalf of the Rio Group), Cuba, China, Ukraine, United Kingdom, Slovakia, France, Greece and Belgium.
The draft resolution on Review of the Statute of the Administrative Tribunal of the United Nations would have the Assembly amend the statute with effect from 1 January 2001, to enhance the Tribunals judicial character and
Sixth Committee - 1a - GA/L/3171 31st Meeting (AM) 16 November 2000
standing. The amendment would replace some provisions relating to qualifications of the Tribunals members and term of office, and introduce an article, by which a significant question of law could be referred for consideration by the whole seven-member Tribunal.
The Sixth Committee meets again at 3:30 p.m. today to consider a request for observer status to the Assembly for two organizations: the Stockholm-based International Institute for Democracy and Electoral Assistance, and the Economic Community of Central African States.
Sixth Committee - 3 - Press Release GA/L/3171 31st Meeting (AM) 16 November 2000
Committee Work Programme
The Sixth Committee (Legal) met this morning to begin consideration of the following items: Nationality of natural persons in relation to the succession of States; Convention on jurisdictional immunities of States, and Review of the Statute of the Administrative Tribunal of the United Nations.
The Committee was expected to receive and act upon a draft resolution on Nationality of natural persons in relation to the succession of States (document A/C.6/55/L.16). Action was also expected on a draft on Convention on jurisdictional immunities of States and their property (document A/C.6/55/L.19), which was introduced yesterday. A third draft, also to be introduced and acted upon, related to Review of the Statute of the Administrative Tribunal of the United Nations (document A/C.6/55/L.18).
Nationality, Succession of States
Last year, the International Law Commission adopted final draft articles on Nationality of natural persons in relation to the succession of States, and recommended that the General Assembly adopt them in the form of a declaration. A key provision states that every individual who, on the date of the succession of States, had the nationality of the predecessor State, irrespective of its mode of acquisition, has the right to the nationality of at least one of the States concerned. States are obliged to take all appropriate measures to prevent statelessness.
The scope of the draft articles - divided into two parts -- is limited to the nationality of individuals. The provisions of part I, which are general, apply to all categories of succession of States. Part II contains specific provisions on attribution and withdrawal of nationality and on the right of options 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.
Where the acquisition or loss of nationality would impair the unity of a family, there is a provision for the State concerned to take all appropriate measures to allow that family to remain together or to be reunited. A child born after the succession of States has the right to the nationality of the State on whose territory he or she was born.
The articles apply only to the effects of a succession of States occurring in conformity with international law and, in particular, with the principles of international law embodied in the United Nations Charter.
By the draft resolution on "Nationality of natural persons in relation to the succession of States" (document A/C.6/55/L.16), the General Assembly would adopt, as a declaration, the final articles on the subject, elaborated by the International Law Commission.
The Assembly, considering that the Commission's work would provide a useful guide for practice in dealing with the issue, would invite governments to take account of the provisions of the articles.
It would recommend that all efforts be made for the wide dissemination of the text of the articles, and would acknowledge that the Commission's work on the topic could contribute to the elaboration of a convention or other appropriate instrument in the future. It would reiterate its invitation to governments to submit comments and observations on the codification of the subject as a convention.
The text of the draft articles is annexed to the draft resolution.
Convention on Jurisdictional Immunity
An open-ended working group of the Sixth Committee established under General Assembly resolution 53/98 considered draft articles on the Convention on jurisdictional immunities of States and their property in six meetings from 6 to 10 November 2000, according to a report of the group (document A/C.6/55/L.12). The International Law Commission adopted the articles in 1991.
The working group, under the chairmanship of Gerhard Hafner, Austria, discussed five outstanding substantive issues identified at its previous session, namely: concept of a 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.
To advance negotiations, the working group conducted two readings of draft articles relating to the five topics, mostly on the basis of drafts elaborated by the chairman, but also taking into account the texts submitted by the International Law Commission in 1991, or suggested by it in 1999.
There were exchanges of views on the various possible forms the instrument could take, be it a convention or model law or non-binding general principles or declaration by the General Assembly attached to a consensus resolution.
The report states that a number of delegations said a binding instrument in the form of a convention would be most appropriate, and that a diplomatic conference could be the forum for its adoption. Some other delegations stressed that, although the remaining substantive issues were few in number, they were, nevertheless, of a key nature for the draft articles as a whole. Difficulties to resolve them could very well be insurmountable, the report states. Those delegations, according to the report, viewed the possibility of convening a diplomatic conference to adopt an international convention on the topic as an unrealistic approach.
Introducing the report in the Sixth Committee yesterday, Mr. Hafner stressed that it was his own personal account that did not commit anybody. The most difficult issue concerned measures of constraint against State property, he said, and added that various ways were explored, but none had, so far, found unrestricted support of all delegations.
By the draft resolution on the Convention on jurisdictional immunities of States and their property (A/C.6/55/L.19), the General Assembly would decide to establish an hoc committee on jurisdictional immunities, open also to participation by States members to the specialized agencies. The ad hoc committee would further consolidate areas of agreement on the topic and resolve outstanding issues with a view to elaborating a generally acceptable instrument based on the draft articles on jurisdictional immunities adopted by the International Law Commission and also on the discussions of the open-ended working group of the Committee. The ad hoc committee would meet for two weeks in March 2002.
The Assembly would note with appreciation the report of the working group of the International Law Commission on the topic, annexed to the Commissions report on the work of its fifty-first session. States would be urged to submit their comments on the working groups report in writing by 1 August 2001.
By the draft resolution, the Assembly would also decide to include in the provisional agenda of its fifty-sixth session the item entitled, Convention on jurisdictional immunities of States and their property.
The draft is sponsored by Austria, Belgium, Bulgaria, Costa Rica, Côte d'Ivoire, Cyprus, Denmark, France, Germany, Greece, Lesotho, Nigeria, Poland and Sierra Leone.
Statute of UN Administrative Tribunal
A draft resolution on Review of the Statute of the United Nations Administrative Tribunal (document A/C.6/55/L.18), would have the General Assembly amend the Statute of the Tribunal, with effect from 1 January 2001, to enhance its judicial character and standing.
The text, sponsored by France, Ireland and the United Kingdom, would have the Assembly amend the Statute by replacing some of its provisions relating to qualifications of the Tribunals members and their term of office and introducing an article, by which a significant question of law could be referred for consideration by the whole seven-member Tribunal.
These are the proposed changes:
Article 3, paragraph 1 of the Statute to be amended as follows: "The Tribunal shall be composed of seven members, no two of whom may be nationals of the same State. Members shall possess the requisite qualifications and experience including, as appropriate, legal qualifications and experience. Only three members shall sit in any particular case".
Article 3, paragraph 2 shall be amended to read as follows: "The members shall be appointed by the General Assembly for four years and may be re- appointed once. A member appointed to replace a member whose term of office has not expired shall hold office for the remainder of his predecessor's term, and may be re-appointed once".
According to the draft resolution, a new article 8 shall be inserted, to read as follows:
"Where the three members of the Tribunal sitting in any particular case consider that the case raises a significant question of law, they may, at any time before they render judgement, refer the case for consideration by the whole Tribunal. The quorum for a hearing by the whole Tribunal shall be five members".
Former articles 8 to 13 of the Statute shall be renumbered articles 9 to 14. The pronouns "he" and "his", wherever they appear in the Statute, shall be amended to read "he" or "she" or "his" or "her" respectively, according to the draft text.
In article 7, paragraph 7, and in renumbered article 11, paragraph 4, references to "five official languages" shall be amended to read "six official languages".
By the draft resolution, the General Assembly would also decide that members serving on the Tribunal as of 1 January 2001 shall have their current term of office extended by one year. Thereafter, provided that they have not served on the Tribunal for more than seven years, they may be re-appointed once.
Draft on nationality
MARCELO VÁZQUEZ (Ecuador), reporting on consultations on Nationality of natural persons in relation to the succession of States, said it became clear that a significant number of delegations favoured the adoption of the draft articles prepared by the International Law Commission as a declaration. Others preferred a less decisive step at this point, suggesting an eventual adoption of the articles as a convention in due course.
In the end, agreement was reached on the draft resolution, which was acceptable to delegations. He urged that the draft be adopted by consensus.
He then introduced draft resolution A/C.6/55/L.16 on the topic.
ONDINA BLOKAR (Slovenia), in explanation of position, reiterated the concerns of her delegation on some aspects of the text. She said it was her understanding that the draft articles would serve only as guidance for State practice.
The Committee went on to approve the draft text without a vote.
Convention on jurisdictional immunity of States
MIRZA GNECCO (Colombia), speaking for the Rio Group of Latin America and Caribbean countries, said it was important to clarify the criteria for Convention on jurisdictional immunity of States
MIRZA GNECCO (Colombia), speaking for the Rio Group of Latin America and Caribbean countries, said it was important to clarify the criteria for determining the commercial character of a contract or transaction. The Rio Group had supported the efforts of the International Law Commission since 1976 to elaborate the draft articles on the topic. They appreciated work done by the working group.
She said important progress had been made, and a final agreement was within reach. The Rio group reiterated the need for an international instrument to be adopted as a convention. They stressed their support for the paper submitted by Denmark. The momentum on work on the articles should be kept. The Rio Group countries supported the establishment of an ad hoc group to continue work on the topic, and were committed to the attainment of final agreement.
YAMIRA CUETO (Cuba) said jurisdictional immunity was a constantly evolving practice, which was affected by changes in legislation and the practice of States. Trends had not yet produced general norms. The draft articles reconfirmed the general principle that States enjoy jurisdictional immunity before the courts of other States, except in those cases defined in the future convention. She said Cuba believed that the obligation to respect jurisdictional immunity was an international obligation, strengthening the general principle that it was a right of the State, which only the State could renounce.
Cuba shared the concern of others that it was necessary to have a balance between State sovereignty and the interests at stake in a particular transaction. To achieve that balance, it was necessary to put the appropriate emphasis on the distinction between acts of a sovereign, public or governmental nature, and those acts which were commercial in nature.
She said Cuba also endorsed the principle that coercive measures against a State could be imposed only in a court procedure. It was disturbing that current international relations were proceeding on a basis incompatible with the most fundamental principles of international law. Cuba supported the creation of the ad hoc committee, as well as the convening of an international conference on the topic.
GUAN JIAN (China) said the establishment of a universally applicable system of immunity of States and their property was a complicated issue in international law. So far, three problems remained unresolved: the criteria used to determine whether the transaction was commercial; the relationship between a State and State enterprise, vis-à-vis the system of immunity of States and their property; and the measures of constraint against State property.
As to the issue of criteria, China believed it was necessary to first look at the nature of a transaction, but it was also necessary to look at the purpose of the transaction. The intention was not to expand the scope of immunity, but rather to avoid and solve any legal conflict that might arise from different legal systems. He proposed retaining the 1991 draft by the International Law Commission, as it would not compromise the jurisdiction of any State. He also supported retaining provision 3 of article 10 of the same draft, since it reflected objectively an independent relationship between State and State enterprise.
He said that since measures of constraint against State property were different from those against ordinary property, they could be imposed only with the consent of the State whose property was the subject of such measures. China would give favourable consideration to the proposal of giving a State a grace period of 2 to 3 months to implement the ruling. He added that the system of immunity of States and their property was an important issue that involved State sovereignty and inter-State relations; it was not a simple procedural issue.
MARKIYAN Z. KULYK (Ukraine) said his delegation strongly favoured elaboration of an international convention on jurisdictional immunities, and believed it was feasible to achieve it. There was enough evidence of custom and practice to make such codification possible. Differences still existed on the concepts of the doctrine of sovereign immunity, as well as specific aspects of its implementation; those differences were, however, not as broad as they might seem at first glance, as had been proved in the working group. The working group had come very close to a generally agreed solution on some outstanding substantive issues.
His delegation believed a uniform regime of jurisdictional immunities would further promote consistency in international commercial transactions, and provide States and private parties with legal certainty on a wide range of issues, including those arising in the course of judicial litigation, thus encouraging international trade.
ALICE BURNETT (United Kingdom) said her country welcomed the clarification on the definition of the State for purposes of immunity. Entities referred to should not only be entitled to exercise governmental authority, but should also be actually acting in that capacity. In determining the commercial character of a transaction, the alternative texts had been usefully narrowed, though there remained a spectrum of views, as reflected in the report.
Describing the question of enforcement as of fundamental concern, she said no instrument on the subject would be acceptable if it did not provide a proper basis for enforcement of judgements in cases where it had been established that there was no immunity. Noting that a number of delegations thought a constructive conclusion would be to draft guidelines or principles, or perhaps a model law, she said she understood that the aim of the ad hoc committee would be to work toward an instrument that was acceptable to all, and that the title convention did not prejudge the outcome.
DRAHOSLAV STEFANEK (Slovakia) said the issue was of a very practical nature, as the absence of generally binding norms and standards at the international level created a considerable legal uncertainty. The definition of commercial character of a contract or transaction had been more or less responsible for the deadlock in previous negotiations. That was why Slovenia was pleased at the suggestion to delete reference to the specific criteria or test and leave the issue of determination to the discretion of the courts. However, his delegation was flexible on the matter, and was ready to work with those who favoured retention.
Slovenia believed the ad hoc committee which was being established, would provide a suitable forum to come to a successful completion of work on the topic.
FRANCOIS ALABRUNE (France) said the efforts of the chairman of the working group had been a major contribution to the fruitful outcome of its sessions, particularly, the most recent. France had submitted written comments on the topic and had occasion to make further observations.
On the format of the draft articles, his delegation believed that it would be best to elaborate an international convention on the topic. It was only with a convention based on uniform law, which was totally unambiguous, that the difficulties encountered in practice could be dealt with.
He noted that the working group had registered major progress on five outstanding substantive issues: concept of a 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.
Although progress was made, he said, difficulties remained, particularly over the question of criteria for determining the commercial character of a contract or transaction and the measures of constraint against State property.
His delegation was sure that a solution to those difficulties could be found within an appropriate framework. France welcomed the draft text and the proposed establishment of an ad hoc committee to work further on the topic, as well as the fact that the committee would meet for two weeks in March 2002. The creation of the ad hoc committee to succeed the working group offered new momentum, and he hoped the committee would come up with success.
MARIA TELALIAN (Greece) said the report of the chairman of the working group was good testimony of the progress it had made, despite the various alternatives which still existed on the most important questions, namely, the criteria for determining the commercial character of State activities and measures of constraint against State property.
She said her delegation was certain an acceptable solution could be found. The draft resolution pointed the way. The proposed ad hoc committee would have the competence to resolve outstanding issues. It was the appropriate forum to further improve the draft articles and for deciding the final form, and whether the articles should be considered at a diplomatic conference. Her delegation supported that approach.
She said Greece believed there was an urgent need to elaborate an international uniform legal regime on State liability, which would reflect State practice in that field.
EVERT MARECHAL (Belgium) said it was important to reach harmonization in the legal regime for jurisdictional immunity of States. He was pleased at the progress that had been made. Belgium strongly favoured the establishment of the ad hoc committee, which would continue and strengthen the momentum that had emerged during consultations on the topics. He expressed the hope that delegations would be brought closer on issues still outstanding.
Action on Draft on jurisdictional immunity
JACQUELINE CAROL (Canada) said her country would support the consensus but would prefer that the title did not prejudge the results of the work of the ad hoc committee. She understood that the committee would have full leeway in deciding the eventual form of the draft articles, perhaps that of a declaration or model law.
The Committee then approved the draft without a vote.
Action on Draft on Administrative Tribunal
The representative of the United Kingdom introduced the draft on the Statue of the Administrative Tribunal of the United Nations, document (A/C.6/55/L.18), which was approved without a vote.
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