Fifty-ninth General Assembly

Sixth Committee

15^th Meeting (AM)

LEGAL COMMITTEE BEGINS NEW REVIEW OF ISSUES ON SUCCESSION OF STATES,

RESPONSIBILITY FOR INTERNALLY WRONGFUL ACTS

 

Work of International Law Commission Noted; Differing Views

Expressed on Future Form of Draft Articles, in Convention or by Assembly Action

(Issued on 29 October 2004)

The Sixth Committee (Legal) this morning began debate on the vexed issue of the future form for draft articles on the Responsibility of States for Internationally Wrongful Acts, after examining the same question with regard to nationality of natural persons in relation to the succession of States.

On the responsibility of States, some delegations called for finalizing the draft articles as a convention at a conference of plenipotentiaries.  Others favoured their adoption by the General Assembly in the form of a declaration. Still others held that the articles should stand as they are, annexed to Assembly resolution 56/83.

The representative of the United Kingdom said the compromises reached in the International Law Commission during its 45 years work on the topic remained fragile.  A conference to adopt the articles as a convention could lead to unravelling the text and to a convention with few ratifications.  The Assembly’s consensus action in annexing the articles to its resolution and commending them to States had already given the articles an appropriate status.

Austria’s representative favoured a convention because the articles were the basis of international law similar to the Vienna Convention on the Law of Treaties and should receive the same treatment.  Without a binding commitment, he said, States might not feel obliged to comply with the articles and would apply different regimes and concepts.

Guatemala’s representative said there were advantages to the Assembly adopting the articles as a declaration.  It would go into immediate effect and would preserve the importance of the articles in the area of interpretation. 

Spain’s representative said the Commission’s work on State responsibility was as important as its work on treaty law.  Adopting the articles as a legally-binding convention was the only way it could be effective.  The Assembly should review the question at its sixtieth or sixty-second session to consider whether the time was right for holding a diplomatic conference.

The United States said the articles were a valuable contribution to international law and needed no further action.  They were useful in their current non-binding form as a guide on how the law might be progressively developed.

Uruguay’s delegate said the value of the text lay in its combined contribution to both codification of law and its development.  A conference of plenipotentiaries should be held to finalize a convention and to assess the suitability of incorporating articles on dispute settlement.

Also speaking on that item were the representatives of the Netherlands (on behalf of the European Union), Brazil, Japan, China, Belarus, Israel, Finland, (on behalf of the Nordic countries), Portugal, Greece, Slovakia, Australia (on behalf of Canada and New Zealand) and Venezuela.

Speaking on the nationality of natural persons in relation to the succession of States, the representative of Côte d’Ivoire noted the importance of the issue. He said there were differences between acquired nationality and that of a given one.  If the former was chosen, it would mean the granting of the right to vote and the right to be elected to political office.  That could affect States with large foreign populations, he said.

The representative of the CzechRepublic said his own country had experienced questions of nationality and succession of States.  A legally binding instrument was not an appropriate or practical form for the draft articles.

Speaking for the European Union, the representative of the Netherlands called for more States to express views on whether the document on nationality should be formulated into a convention, particularly in the light of the main objective of avoiding statelessness.  The Assembly should consider the question at its sixty-third session.

Formulating the draft articles as a convention could help clarify an effective legal regime for the human right of citizenship, the representative of Belarus said, adding that the articles needed to be cleaned up.  An ad hoc Committee or working group should be established to formulate the convention.

Also speaking in the debate were the representatives of the Lao People’s Democratic Republic, Japan, United States, Poland, Libya, Russian Federation and Mexico.

The Sixth Committee will meet next at 10 a.m. tomorrow, Friday, 29 October, to conclude its debate on the Responsibility of States for internationally wrongful acts.

Background

The Sixth Committee (Legal) met this morning to take up the question of adopting, as a convention, a present declaration on nationality of natural persons in relation to the succession of States, along with the question of State responsibility for internationally wrongful acts.  A number of draft resolutions are also before the Committee.

Before the Committee is a Secretariat note on nationality of natural persons in relation to the succession of States (document A/59/180 and Add. 1).  It sums up the background for the item, stating that the Assembly adopted a declaration on the subject in 1999 following the adoption of 26 draft articles on the matter by the International Law Commission earlier that year.  By its resolution on the declaration, the Assembly invited governments to submit comments and observations on the instrument as the Assembly considered the elaboration of a convention.

The text of the draft articles is annexed to resolution 55/153 of 12 December 2000, by which the Assembly also reiterates its invitation for comments by governments on adopting the declaration as a convention.  The general provisions of the 26 articles include “right to nationality”, “prevention of statelessness” and “prohibition of arbitrary decisions concerning nationality issues”.  Other provisions cover children born after the succession of States and the attribution of nationality of a successorState.

The note before the Committee contains the responses of Austria, Chile, Colombia, El Salvador, Germany and Slovenia, while the Addendum contains the response of Kuwait.

The Governments of Austria and Colombia indicate support for adopting the draft as a convention.  Colombia further comments on a number of its provisions. Chile observes that the text constitutes a useful guide for the treatment of the topic, whatever definitive form is chosen for its adoption.

El Salvador states that it has a special interest in the subject as it is relevant to its own situation in respect of persons living in territory which previously fell under the jurisdiction of another State.  It recalls the delimitation of the land boundary between El Salvador and Honduras based on the 11 September 1992 judgment of the International Court of Justice.

Germany suggests adding a definition of “habitual residence” to a provision because of its frequent use in the text.  On the other hand, “family” need not be defined since successorState residents would share a common understanding of the term.  Slovenia also expresses support for adopting the draft articles as a convention and comments at length on a number of its provisions.  It notes that the Council of Europe is also working on adopting a similar instrument which will, however, apply only to legal statelessness upon succession.

Finally, Kuwait emphasizes the need to clarify the relationship between national and international law with regard to nationality and the right of option in acquiring the nationality of two or more States.  Kuwaiti nationality, it says, is generally acquired by ties of blood rather than through territorial ties.

Turning to State responsibility for internationally wrongful acts, the Committee has before it the summary contained in the annotated draft agenda of the Assembly’s fifty-ninth session (document A/59/100 and Add.1).  It states that the item was first introduced in 2001 under the item of the International Law Commission’s report on the work of its fifty-third session in connection with draft articles on the item.  The report also recommended that the Assembly take note of the articles and, in light of the topic’s importance, consider convening an international conference of plenipotentiaries to formulate a convention on the matter.  The Assembly had taken note of the articles and commended them to governments without prejudice to the question of their future.

The four-part set of draft articles is annexed to Assembly resolution A/RES/56/83.  Part I deals with the definition and nature of the internationally wrongful act of a State.  It treats matters such as the attribution of conduct to a State, breach of an international obligation, State responsibility in connection with the act of another State, and circumstances precluding wrongfulness.  Part II concerns the content of the international responsibility of a State, such as reparation for injury and serious breaches of obligations under peremptory norms of general international law.  Part III treats implementation, including invocation of State responsibility and countermeasures.  Part IV contains general provisions of applicability.

For expected action, the Committee has before it a resolution requesting observer status in the General Assembly for the Organization of Eastern Caribbean States (OECS) (document A/C.6/59/L.7).  By it, the Assembly would invite the subregional organization to participate in its sessions as an observer.  Saint Lucia introduced the draft on behalf of the nine members aiming to promote cooperation, unity and solidarity among themselves and harmonizing both foreign policy and economic integration. supported by good governance practices and respect for human rights.  The nine members are:  Antigua and Barbuda, Anguilla, British Virgin Islands, Dominica, Grenada, Montserrat, Saint Kitts and Nevis, Saint Lucia and Saint Vincent and the Grenadines.

Also before the Committee is a draft resolution on measures to enhance the protection, security and safety of diplomatic and consular missions and representatives (document A/C.6/59/L.14).  By it, the Assembly would strongly condemn acts of violence against such persons and facilities, emphasizing that such acts could never be justified.  The Assembly would urge States to observe, implement and enforce the principles and rules of international law on protecting diplomatic and consular persons and facilities.  It would urge States to take every measure at the national and international levels to prevent violence against those persons and facilities, as well as to prevent any abuse of diplomatic or consular privileges and immunities.

Further, the Assembly would recommend that States cooperate on taking protective measures through information exchange and by providing assistance to juridical authorities in instances of violence or abuse.  States would be called upon to become parties to relevant instruments and to make use of peaceful means to settle disputes, including through the Secretary-General’s good offices.  He, in turn, would be requested to offer his good offices and to be the focal point for State reports on violations.

Finally, the Committee has before it two draft resolutions on the United Nations Commission on International Trade Law (UNCITRAL).  One concerns the UNCITRAL report on its thirty-seventh session (14-25 June, New York) (document A/C.6/59/L.11).  By this, the Assembly would take note of the report and commend UNCITRAL for completing and adopting the legislative guide on insolvency law.  It would note with regret that no contributions have been made to the trust fund for providing travel assistance to developing countries and would further decide to continue considering the granting of travel assistance to Commission members.  The importance of bringing UNCITRAL conventions into effect would be stressed.

The other UNCITRAL draft concerns the legislative guide on insolvency law (document A/C.6/59/L.12), by which the Assembly would request the Secretary-General to publish the guide and would recommend that all States give due consideration to it when assessing the economic efficiency of their insolvency regimes and when revising or adopting insolvency legislation.  It would recommend that all States continue considering the implementation of UNCITRAL’s Model Law on Cross-Border Insolvency.

Statements on Nationality

CETA NOLAND (Netherlands), speaking for the European Union and associated countries, said the clear and authoritative guidelines on the changes of nationality resulting from succession of States were urgently needed after a decade of problems in State succession.  The 1997 European Convention on Nationality constituted a significant standard in that difficult area.  The Council of Europe’s draft Protocol on avoiding statelessness in relation to State succession built upon the International Law Commission’s articles and contained many identical provisions.

The European Union she said would be interested in hearing more views of States on whether the document should be formulated into a convention.  Those views should take into consideration one of the main objectives of the articles, that of avoiding statelessness.  The comments would be helpful for the discussion on whether to elaborate the articles into a convention or other appropriate instrument at the Assembly’s sixty-third session.

VIENGSAVANH SIPRASEUTH (Lao People’s Democratic Republic) said the adoption of a convention on the issue of nationality upon State succession would contribute to resolving matters in that connection.  In that way, it would contribute to promoting human rights worldwide.  Her country would consider becoming a party to such a convention.

JAN CIZEK (CzechRepublic) said that with its own experience with the legal regulation of the citizenship of natural persons in the context of the succession of States, his country had followed with great interest and expectations deliberations on the topic in the International Law Commission and in the Sixth Committee. It was of the opinion that the form of a legally binding instrument was not an appropriate and practical one in the case of the present draft articles.  It was convinced that one of the key purposes of the draft articles was to provide States involved in the process of succession with a reliable set of legal principles and recommendations to follow in the course of preparation of domestic laws on nationality.  His delegation felt that the purpose of the draft articles as a useful guide for States had already been achieved by its annexation to General Assembly resolution 55/153.

TSUTOMU ARAI (Japan) said the draft articles had provided guidance for States in managing situations concerning statelessness of individuals in the case of State succession.  It had also succeeded in striking a balance between the power of the State to determine the nationality of individuals and the interests of individuals acquiring their nationality. Domestic laws concerning determination as well as acquisition of nationality differed from one country to another. Given such divergent practices as well as varying views among States, he said it was more likely that States would prefer the work done by the International Law Commission to use as a guideline or guidance in improving their laws and practice, rather than subscribing to it as legally binding instrument. Based on such assessment, Japan believed that the draft articles would be best used as a guideline for future cases of state succession. It believed that the work of the Commission and the subsequent practice accruing from the draft articles would certainly contribute further to the development of international law.

ERIC ROSAND (United States) said he approved of the general concept in the articles, namely that persons affected by state succession should have at least one nationality and that affected States should be allowed to adopt measures limiting multiple nationalities.  However, the draft articles were complex and required much consideration by States.  So far, only nine States had submitted comments.  How much support was there for a legal instrument at this time?  Further consideration of the question should be deferred until the sixty-second Assembly.

VLADIMIR CHUSHEV (Belarus) said enough time had passed to assess the question of how to treat the articles.  The main point was to look for the most optimal and internationally applicable set of standards in the area of nationality and State succession.  Legislation in his country had set out the rules of citizenship in 1991 and new legislation had been adopted in 2002 on Belorussian citizenship.  The main points to safeguard in that regard were the right to choose for those who had been affected by State succession and to need to avoid statelessness.  Formulating the draft articles as a convention could help clarify an effective legal regime for the human right of citizenship.  The articles needed to be cleaned up, however.  In article two, for example, “usual residence” needed to be defined.  An ad hoc or working group should be established to formulate the convention.

ZDZISLAW GALICKI (Poland) recalled that nationality was essentially governed by national legislation but the competence of States in that area could be exercised only within the limits set by international law.  He said the development of human rights law since the Second World War was based on the preponderance of State interests over those of individuals so that the interests of both were balanced.  That principle was reflected in the preamble to the articles.  The scope of the articles was limited to the nationality of individuals and did not extend to the nationality of legal persons.  The United Nations High Commissioner for Refugees had found the draft text useful.  The work of the Council of Europe in the similar area underscored the importance of the International Law Commission’s work on the matter.

Three factors should be considered when deciding on the form the articles should take, he said.  Those were the recognition of the human right to a nationality; the necessity of avoiding statelessness; and respect for the will of the persons concerned in the matter of nationality upon State succession.  The growing international concern with human rights gave added impetus to deriving satisfying legal solutions to guarantee the balance between the rights and interests of individuals and States.  The draft articles were the best basis for that solution from a substantive perspective.

OURAGA OBOU (Côte d’Ivoire) said his delegation supported the text of the General Assembly resolution 55/153.  The draft articles were liberal and balanced and a good reference for States.  His country attached a great deal of importance to the subject of nationality.  He pointed out that more than 60 per cent of its population were of foreign origin.  He noted that there were differences between acquired nationality and that of a given one.  If acquired nationality was chosen it would mean granting retroactively, the right to vote and the right to be elected to political office.  That could affect sensibilities in States with large foreign populations.

FETHALLA AL JADEY (Libya) said the adoption of a convention on the text was important.  There was need to restore more legal certainty.  State practice would help enrich discussions on the subject.  The provisions of the text could be a guide for arbitration courts.  He called for their implementation while waiting for its formal adoption as a convention.

MARIA ZABOLOTSKAYA (Russian Federation) said that the International Law Commission’s text of 1991 was another example of the practical value to States of its work.  There was no universal approach in international law to resolving the problem of nationality of natural persons in relation to the succession of States.

Successor States needed to take measures to ensure that those living on their territory were not negatively affected.  It was her country’s view that everybody had a right to nationality and should not be discriminated against.  The most appropriate means of settling the debate over the future form of the Articles would be an international conference under United Nations auspices.  She noted that the Council of Europe was presently working on a similar project.

ALEJANDRO RODILES (Mexico) said the right to nationality was an important human right.  Mexico agreed with the view of the International Law Commission that the draft articles could be adopted as a declaration by the General Assembly, which was done.  It was a practical way to resolve problems arising from nationality questions.  The Articles would contribute to helping States devise their own domestic laws on the topic.  It would help avoid statelessness.  Mexico was willing to explore the issue further.

Statements on State Responsibility

CETA NOLAND (Netherlands) said she did not want to exclude the possibility that the articles would be elaborated as a convention.  But how useful was such a convention now?  It could jeopardize the text itself if it did not enter into force or became a convention that lacked universal participation.  The greater part of the articles reflected customary international law.  Incorporating that into a convention would add little to the development of international law.  State practice could clarify other aspects.  The question should not be taken up until the sixty-third session.

SIDNEY LEON ROMEIRO (Brazil) said the draft text set out the growing awareness of State responsibility.  The text would no doubt become the most respected statement on the question of States responsibility.  The articles represented fifty years of work and should be formulated as an international Convention with an International Conference of Plenipotentiaries to conclude its formulation.  Anything less would debase the importance of the matter.

CHUSEI YAMADA (Japan) said the articles had their controversial elements but were helpful to governments, jurists, scholars and anyone interested in international relations as a legal basis in analyzing the relation of States with one another.  Even so, the time was not ripe for convening a diplomatic conference to adopt the draft into a convention.  There was agreement on some elements but not on all.  States should find common ground for the much-debated areas.  Then there would be consensus on how the current draft should be revised or maintained.  Without that process, it could unravel the delicate balance that had been reached through compromise.  Years should pass before the item was taken up again.

JIA GUIDE (China) said conditions were not right for convening a diplomatic conference to examine the draft articles at present.  The item should be included in the Assembly’s agenda every year or biennially.  A working group should be set up to afford Committee members an opportunity to exchange views with an eye toward resolving those issues and reaching an eventual decision on action to be taken under the right conditions.

ERIC ROSAND (United States) said the draft articles on State responsibility were a valuable contribution to international law and no further action needed to be taken in regard to them.  They were useful in their current nonbinding form as a guide for how the law might be progressively developed.  For that reason and because of doubts that further work on the articles would be useful, he opposed any moves toward the convening of a diplomatic conference for adopting a convention on State responsibility.

VLADIMIR CHUSHEV (Belarus) said the question of turning the draft articles into a convention should be carefully considered.  An instrument on State responsibility would stabilize international relations but it had to be a legally binding document.  Holding a conference would help broaden State participation in the issue.  The articles were balanced and even-handed, though some provisions needed clarification, such as those on holding States responsible and State obligations.  Application of countermeasures was overall an accepted part of international law, but because of inequality between States at present there should be some provisions on limits in applying countermeasures.  If consensus were reached, provisions on dispute settlement should be included, with countermeasures also covered in that regard.

ARTHUR LENK (Israel) said many States had substantive reservations regarding key provisions of the draft articles, including on the issue of countermeasures.  It would be much more beneficial to keep the draft articles in a more flexible form than to rigidify them, as would be inherent in a codified treaty.  The text and comments could be a record of international legal development and as a guide to States and international courts and tribunals.  Arguably, the true value of the articles was not in their rudimentary and abstract provisions but in the detailed commentary that illuminated the history, scope and purpose of the rule in this area.  The commentary should be more widely disseminated.  In sum, the articles and commentaries were a valuable tool at present.  If thrust into the arena of multilateral treaty negotiation, then political clashes, compromises and creative drafting would lead to neither enhancement of their status nor further advancement of the rule of law in international relations.

SIR MICHAEL WOOD (United Kingdom) said the draft articles represented the culmination of forty-five years of work –- by the Commission, by States and by the Commission’s five successive Special rapporteurs.  They had already become established as the point of reference whenever States or international courts were faced with issues of State responsibility.  The compromises reached in the Commission remained quite fragile and should not be lightly put at risk.  He recognized that some delegations would want the text eventually adopted as a convention, but warned of the risks involved, particularly reopening of old and fruitless debates.  It could also lead to the unravelling of the text, and a convention with few ratifications.

The Assembly’s Consensus action in resolution 56/83 annexing the articles and commending them to States had already given the articles an appropriate status, he said.

ANNA SOTANIEMI (Finland) speaking also for the other Nordic countries (Denmark, Iceland, Norway, and Sweden) said that annexing the articles to the General Assembly resolution was not only an appropriate form for them, but also it put them in the strongest possible position.  They had become the most authoritative statement available on questions of State responsibility.  There were no conventions or customary practices that would override the articles.  On the contrary, the articles themselves were mostly the expression of customary law in the matter.  It was not advisable to commence negotiations on a convention on responsibility of States for wrongful acts.

LUIS SERRADAS TAVARES (Portugal) said it would be senseless not to proceed with the development and codification of the articles.  The Sixth Committee should carry on with that task.  Action was needed, he said.  Several options were at the Committee’s disposal to proceed with the topic:  moving towards a convention, in a first stage; to consider alternative ways like setting up an ad hoc committee with a mandate to develop that possibility, or to request States for final comments on the subject with a fixed deadline.  Portugal would cooperate in drafting a resolution that allowed the Committee to move forward, while keeping the item on the agenda for the next session.

CONSTANTIN ECONOMIDES (Greece) said the process of codification was a delicate matter.  There was a fine line between codification and progressive development of law.  The articles on State responsibility were a complete, guiding text in the area.  The draft focused on responsibility of States with regard to acts of other States in context of the entire international community.  If the positives and negatives were compared, the strengths outweighed weaknesses.  The weaknesses could be mitigated by wise action of States.  Also, the codification value outweighed its importance in the area of progressive development of law.  The articles must be adopted as a convention as had been done with other important documents the International Law Commission had produced, as for example the Convention on the Law of Treaties.  The articles must be a binding text in the form of a convention, completed at a conference of plenipotentiaries.  A working group should be set up for writing a preamble, fine-tuning the document and elaborating a peaceful settlement mechanism.

METOD SPACEK (Slovakia) said it was premature to engage in negotiations on a convention.  The importance of the articles and the topic itself needed to gain broader substance and recognition in the arenas of international legal relations and in the international legal order.  The international community needed more time to decide on the best approach to finalizing the work and deciding on what form it should take.  The Assembly should take up the question in three or four years to evaluate it in light of further reactions in State practice or judicial decisions.

BEN PLAYLE (Australia), speaking as well for Canada and New Zealand, said the articles had already introduced much needed clarity and precision into the law of State responsibility.  They would support the adoption of a resolution welcoming the Articles and attaching them as an annex or as a declaration.  The argument supporting that course was clear and compelling, he said, adding that that approach would ensure that the integrity of the articles was maintained.  The most practical, realistic and effective option would be to adopt the articles as a resolution, and to rely on international courts and tribunals, State practice and doctrine to adopt and apply the rules contained in them.  Adopting the articles as a treaty would be too risky.

HELMUT TÜRK (Austria) said it was no exaggeration to state that the articles were one of the most outstanding contributions of the International Law Commission to the codification and progressive development of international law.  They went to the root of the international legal order and formed the basis of the whole system of international law.  They were applicable to all substantive fields of international law.  The Commission itself was more or less undecided on the form the articles should take, although a preference for a non-binding instrument could be discerned in its 2001 report.

Austria would favour a convention for the following reasons:  the articles

were the basis of the international law similar to the Vienna Convention on the Law of Treaties so that they should receive the same treatment; without a binding commitment, some States might not truly feel obliged to comply with the articles, and consequently apply different regimes and concepts.  Stability and predictability of the attitude of States regarding questions of State responsibility could be achieved only by a legally binding instrument.

JORGE ROMEU (Spain) said the Commission’s work on State responsibility was as important as its work on Treaty Law.  Adoption of the draft articles as a legally-binding convention was the only way it could be effective in that very critical area of international State relations.  The General Assembly should review the question at its sixtieth or sixty-second session to consider whether the time was right for holding a diplomatic conference to finalize the instrument.

SUSANA RIVERO (Uruguay) noted that the work on the draft articles had begun in 1955 and that the result was an effective instrument in a critical area of international relations of States with each other.  The value of the text lay in its combined contribution to both codification of law and development of law.  A conference of plenipotentiaries should be held to finalize a convention and to assess the suitability of incorporating articles on dispute settlement.  Proposals concerning arbitration were of greatest interest for her.

MIRNA MAS Y RUBI SPOSITO (Venezuela) said the draft articles were a contribution to the development of law as well as an important landmark in codification.  They contained elements of both customary law norms and State practice.  They could be applied to the responsibility of States for actions of transnational corporations associated with them in a variety of relationships.  A conference of plenipotentiaries should be held to discuss the finalization of a convention and the inclusion of a peaceful settlement mechanism, such as binding arbitration.

ROBERTO LAVALLE-VALDES (Guatemala) said there were two possibilities for the fate of the articles on State responsibility:  they could become a multilateral treaty of universal scope or they would become part of universal customary law.  The second direction could lead to the Assembly adopting the articles as a declaration, the preferred direction since the articles were already headed that way.  There were good reasons for why that direction was preferable.  If the articles were made into conventional law, it would be difficult to give them the importance they deserved in the area of interpretation; if they became customary law, the commentary that had gone into their formulation could itself reach the status of customary law.  If the articles became a Declaration, they would be binding for all States whereas a treaty would take much longer to go into effect.  Further, earlier provisions that had been dropped but which had gone into formulating the text could also become part of customary law.  Finally, the true advantage inherent in the Assembly adopting the articles as a declaration was that they would gain immediate certainty.  A dispute settlement clause could be made binding but optional to accept.

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