Sixty-third General Assembly

Sixth Committee

11^th Meeting (AM)

ASSEMBLY’S LEGAL COMMITTEE DISCUSSES PROTECTION OF STATUS OF PERSONS

WHOSE NATIONALITY AFFECTED BY SUCCESSION, DISSOLUTION OF STATES

Merits of Convention or Declaration as Most Effective Means

To Assure Human Rights Are Reviewed; Differing Opinions Expressed

The question of nationality of individuals in States subject to succession or dissolution was taken up by the Sixth Committee (Legal) today, with speakers emphasizing that the right to a nationality was one of the most important human rights granted to all persons.

The Committee began discussion of that issue, and also heard the introduction of two draft resolutions concerning observer status in the work of the General Assembly.

The representative of Iran told the Committee that extensive political and territorial changes over the last two decades had demonstrated the need to regulate the nationality of natural persons in relation to the succession of States.  The issue could not be left up to national laws, but needed a clearly elaborated regimen to ensure the right to nationality.  Without nationality, a natural person was deprived of the juridical status necessary for legal protection of integrity and human dignity.  An international legal instrument based on the provisions of the draft articles should be elaborated.

The delegate of the Russian Federation agreed.  He said the absence of a legal regime to cover the situation had led to too many people living in “legal limbo” for too long.  Given the emphasis currently placed on the rule of law, it was time to act.  A clear statement of the legal principles involved in nationality and the succession of States should be set forth by elaborating an international convention based on the draft articles.

Algeria’s speaker, however, said the International Law Commission had recommended that the draft articles on nationality be adopted as a declaration by the General Assembly.  They had been elaborated with the intention to provide States with a set of legal principles and recommendations to be used in preparing domestic laws.  A non-binding text would be a contribution to the progressive codification of international law in the field, and would allow for States to continue exercising the sovereign right to determine the conditions for attributing nationality.

Also expressing support for elaboration of a legal instrument, the delegate of Nigeria said his country had faced the issue in question, in relation to the inhabitants of the Bakassi Peninsula.  After the International Court of Justice had ruled that the Peninsula belonged to Cameroon, but with the inhabitants being largely Nigerian, the two Governments had agreed that inhabitants could choose to either retain Nigerian citizenship with full rights as a foreigner living in Cameroon, or they could become Cameroonian citizens.

Speaking on behalf of the Africa Group, Kenya’s representative said there were many problems associated with the succession or dissolution of States.  The right to a nationality was one of the most important human rights, affording natural persons the juridical status necessary for legal protection of their integrity and human dignity.

Other views were also offered on the form the articles should take.  Qatar’s representative called for only a non-binding instrument to guide States, with the law of nationality left to domestic laws.  The representative of Venezuela, on the other hand, said the draft articles should be adopted in the form of a treaty, bearing in mind that the international community had adopted previous conventions on nationality.

Slovenia’s representative, whose country had gained independence in 1991, said domestic legislation had provided legal protection to natural persons residing on Slovenian territory during the process.  Statelessness had been prevented, in accordance with principles adopted six years later by the Council of Europe.

Also speaking on the question were the representatives of India, Lesotho, South Africa and Austria.

In addition, the representative of Tanzania introduced a draft resolution on granting observer status, in the work of the General Assembly, to the South Centre.  Costa Rica’s representative introduced a draft on granting that status to the University for Peace.

The Committee will meet again at 10 a.m. on Wednesday, 22 October, when the report of the Special Committee on the Charter is expected to be taken up.

Background

The Sixth Committee (Legal) met today to take up the agenda item on “the nationality of natural persons in relation to succession of States”, as well as to consider recommending observer status, in the work of the General Assembly, to two organizations.

For its consideration of the nationality question, the Committee has before it a report on nationality of natural persons in relation to the succession of States (document A/63/113), which contains the comments of 15 Governments on whether a new legal instrument should be created from the draft articles that currently exist on the issue, and also whether it should be in the form of a non-binding declaration or an international convention.  Such an instrument would include provisions for the avoidance of statelessness as a result of a succession of States.  The International Law Commission supports creating a legal instrument in the form of a declaration, but the views of States vary.

The report says most States were opposed to the elaboration of a binding instrument, but were not opposed to adoption of the articles in the form of a declaration.  In general comments on the articles, Brazil points out that the articles make clear that the right to nationality is a fundamental human right, and the State has the right to determine who its nationals are.  Portugal says the articles also stress that States should decide how to balance their practical interests with the rights and expectations of individuals.  The Republic of Korea notes that States ultimately regulate their particular cases of succession, and that point may differ from the draft articles.

In specific comments on the articles, the report states that Brazil would have the civil rights of stateless people more aptly addressed, particularly the rights of women and children.  Marriage to an alien or change of nationality by the husband should not change the nationality of the wife, render her stateless or force upon her the nationality of the husband.  Kenya calls for the articles to further elaborate the grounds for discrimination to ensure that all stateless people are treated equally.  Also, application fees for citizenship should not present an obstacle, and the articles should not allow for the acquisition of dual nationality.

On the form of the legal instrument, the report states that Algeria favours a non-binding declaration, since the attribution of nationality is a profoundly political act that cannot be regulated by binding international norms.  The discretion of the State in matters of nationality must be retained.  Canada recommends that the practice of the Council of Europe be followed by developing a regional convention, before elaborating a new international legal instrument on the issue.  Ecuador supports the drafting of a convention, while Luxembourg and Mexico do not oppose that course of action in principle.  Other views included are those of Austria, Belarus, Czech Republic, Philippines, Slovenia and Turkey.

Turning to the matter of observer status in the work of the General Assembly, the Committee took up a request by Costa Rica for granting that status to the University for Peace (document A/63/231).  The report containing the request says the University is a specialized international institution for postgraduate studies, research and dissemination of knowledge, specifically aimed at training for peace.

An explanatory memorandum, attached as Annex I, additionally states that the University –- based in San Jose, Costa Rica -- has a special relationship with the United Nations system that is strengthened by having a Council consisting of high-level United Nations representatives, designated by the Secretary-General and by the Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Rector of the United Nations University (UNU), and the Executive Director of the United Nations Institute for Training and Research (UNITAR).  The University’s Charter also envisages close links with UNESCO in view of its special responsibilities in the field of education.  Permanent observer status is requested for the University so that it may participate in discussions on peacebuilding and peacekeeping.

The Committee also took up a request by the United Republic of Tanzania for the granting of observer status to the South Centre (document A/63/141), an intergovernmental organization of developing countries.

An explanatory memorandum, attached as Annex I, states that the Geneva-based Centre works to promote solidarity, consciousness, mutual knowledge, and understanding among the countries and people of the South.  In particular, it contributes to “South-wide collaboration” in promoting common interests and coordinated participation by developing countries in international forums dealing with South-South and North-South matters, as well as other global concerns.

In order to meet those objectives, it is stated, the Centre seeks to respond to requests for policy advice and technical support from developing countries, in the context of international negotiations and discussions in various international forums, such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), and various bodies and specialized agencies of the United Nations system, including the United Nations Conference on Trade and Development (UNCTAD), the United Nations Environment Programme (UNEP), the Human Rights Council, and the Economic and Social Council.  The South Centre currently has observer status with several of those agencies, including the Economic and Social Council, WIPO, UNCTAD and the WTO.

By draft resolutions A/C.6/63/L.2 and A/C.6/63/L.3, respectively, the General Assembly invites the University for Peace and the South Centre to participate in the work of the Assembly in the capacity of an observer, and requests the Secretary-General to take the necessary action to implement these resolutions.

Statements

ARJUN CHARAN SETHI ( India) said nationality rights were governed by national law within limits set by international law, as guaranteed by the Universal Declaration of Human Rights of 1948.

Taking up particular draft articles on the nationality of natural persons in relation to succession of States, he said the first article provided that every person had a right to a nationality, while article 3 limited this right to cases of succession that had occurred in conformity with international law and the United Nations Charter.  As designated by article 5, the presumption of nationality of the successor State, in the territory of which persons had their habitual residence, played an important role.

Continuing, he said article 11 of the draft provided the right to choose between the predecessor and successor State.  However, it was expected that the option should be exercised within a limited time prescribed by the concerned territory.  Article 10 stated the obvious principle of loss of nationality on voluntary acquisition of the nationality of another State.  In that regard, he added, the articles treaded “a delicate path” and did not endorse or denounce the right of States to grant or recognize dual or multiple nationalities.

On the second part of the draft articles, he said the section was satisfactory in explaining the implications of the general principles and adapting them to each of the categories of succession mentioned therein.  Overall, the articles proposed by the International Law Commission could play a useful role in guiding States towards establishing suitable national legislation on nationality.  Accordingly, they honoured the primacy of domestic law, as long as the principles of non-discrimination, right of nationality and right of option were duly recognized.  In conclusion, he endorsed the recommendation to have the draft articles adopted in the form of a declaration by the General Assembly.

STELLA KERUBO ORINA ( Kenya), speaking on behalf of the African Group, said there were many problems associated with the succession or dissolution of States.  Therefore, it was important to recognize that the right to a nationality was considered one of the most important human rights granted to every natural person; it was nationality that afforded natural persons the juridical status necessary for legal protection of their integrity and human dignity.  Moreover, any attempts to regulate this fundamental right should be just and in conformity with both domestic and international law, under which more favourable rights would be accorded to affected persons to avoid statelessness.

She said that in the event of a succession of State, the options of permanent residents to become citizens could not be frustrated.  Also, a person remaining without citizenship of the successor State should be treated as a citizen of the State in which he has the right to acquire or maintain citizenship, in order to avoid statelessness.  In particular, States should take necessary steps to prevent interference with familial units in the event of acquisition or loss of citizenship.  Ensuring the avoidance of statelessness promoted peace between States, and invited residents to maintain and promote social interaction and relationships with each other.

Taking up issues of discrimination, she said States must avoid discrimination based on sex, race, language, religion, political or social opinion, national or social origin, and association with a national minority, property, birth or other status.  She said non-discrimination must be maintained as a basic principle of the draft.  In that connection, she fully supported the draft aimed at reducing the number of persons having no nationality.

ABDULLAHI A. YOLA ( Nigeria) said he supported the draft articles on nationality.  The right to a nationality had been reaffirmed in numerous instruments, including in the 1983 Geneva Convention on succession of states.  His own country had recently been confronted with the question of state succession and nationality, in relation to the inhabitants of the Bakassi Peninsula.  The question had been submitted to the International Court of Justice, which had ruled that the Peninsula belonged to Cameroon, but the inhabitants were largely Nigerian.  The ruling had raised the question of the status of such inhabitants once the territory was transferred to Cameroon.  Of particular concern was whether the transfer automatically “transformed” the inhabitants into Cameroonians.

The Governments of both countries had adopted an amicable approach to the implementation of the judgement, he said.  The 2006 Greentree Agreement, signed under the aegis of the United Nations, served as the basis for covenants between the parties.  The transfer, completed on 14 August, had been conducted with the full appreciation of the right of each inhabitant to either retain Nigerian citizenship with full rights as a foreigner living in Cameroon, or to acquire Cameroonian citizenship.  In handling the matter, both Governments had demonstrated that the status and interest of natural persons came first in situations of State succession.

The right to a nationality must be upheld and protected within the context of international law and international humanitarian law, he said.  The provisions contained in the articles dealt with issues of nationality of natural persons in relation to the succession of States.  The elaboration of legal instruments addressing those issues should be considered.

KAUTU MICHAEL MOELETSI ( Lesotho) said he took note of the articles on nationality in the form of a declaration.  He said he strongly advocated the codification and progressive development of rules of international law, concerning nationality in relation to the succession of States.  That would ensure greater juridical security for States and for individuals.  Succession of States must occur in conformity with international law and the principles embodied in the Charter.

JASSIM YAQOUB YOUSAF (Qatar), commending the work of the International Law Commission, which had led to the draft articles on the nationality of natural persons in relation to the succession of States, said it was an important question, because the right to a nationality was a human right, as acknowledged in both international and national legislation.  Statelessness could lead to the deprivation of individual rights and could cause psychological damage, which might lead to a person using illegitimate methods to gain a living.  Therefore, loss of nationality in terms of succession of States must be avoided.

Based on the principle of protection by States, he went on, the law of nationality should be left to the domestic laws of each State.  Citing an International Court of Justice case from 1955, which decided that each State was free to grant its own citizenships, he said such a process was one of the facets of sovereignty, as emphasized in the draft articles themselves.  Pledging support for the draft articles on the citizenship of persons in relation to the succession of States, he noted that in some circumstances they could create problems, such as dual citizenship.  However, he did not approve of drafting an obligatory convention on nationality.  It was better to accept the recommendation of the International Law Commission to draw up the draft articles as a guideline for States.

SABELO SIVUYILE MAQUNGO (South Africa), supportive with the statement made on behalf of the African Group, said he recognized that the right to a nationality was an essential important human right, because it afforded natural persons the status necessary for the legal protection of human rights.  Accordingly, every person had a right to the nationality of the State in which he or she was born.  It was imperative that any attempts to regulate this fundamental right should be just and in conformity with both domestic and international law, in order to avoid statelessness.  South Africa, therefore, found it important that citizens were granted an option of acquiring citizenship in the event of a succession of a State.  Moreover, a person who would remain without the citizenship of the successor State should be treated as a citizen of the State of which he had the right to acquire or maintain citizenship, to avoid statelessness.

He said he commended the efforts of the United Nations towards avoiding statelessness, and States must also do their part in promoting peace by respecting the principles of non-discrimination with regard to the rights of citizenship of successor States.  In that regard, non-discrimination had to be maintained as a basic principle of the draft, which South Africa fully supported.  He urged the cooperation of States, as well as international organizations, to promote the exchange of information and negotiations, in order to uphold the right to nationality of every person.

MARKO RAKOVEC ( Slovenia) said international and domestic responsibilities of States in the field of nationality had been greatly influenced by the development of the protection of human rights and fundamental freedoms since the Second World War.  The issue of nationality of natural persons in the case of State succession had become relevant recently in the dissolution of States, such as the former Yugoslavia, the former Czechoslovakia and the former Soviet Union.  In such situations, States had to look to national legislation in the absence of legally binding international instruments providing concrete standards.

He said his country had become an independent State in 1991, and internal legislation had provided for the legal protection of natural persons who resided on Slovenian territory.  That had prevented statelessness and was in accordance with basic principles adopted six years later in the Council of Europe Convention on Nationality.  An analysis of practice should be carried out for the period since 1991.  The commentaries, the draft articles and the current debate should serve as a guide formulating guidelines.

Such a non-binding document, reflecting modern practice, could be the basis for further examining issues and could guide States in accordance with international standards, he said.  Since nationality represented one of the most difficult issues in the case of State succession, a progressive approach could lead to a binding document later.  For now, he said, a “soft law document” containing clear and authoritative guidelines was a useful tool for dealing with the issue in practice.

EL HADJ LAMINE ( Algeria) said the draft articles on nationality were intended to provide States with a set of legal principles in the area.  They were also intended to be recommendations on which States should be guided in preparing domestic laws.  The articles, therefore, should be adopted in the form of a declaration by the General Assembly, as recommended by the International Law Commission.  The choice of a non-binding text not only contributed to the progressive codification of relevant international law, it also allowed for a concerned State to continue exercising the sovereign right to determine the conditions for attributing its nationality, obviously subject to its international obligations, notably in the area of human rights.

He said the form of a declaration might be adequate for providing States with a useful guide for dealing with the issue; it could also have some real advantages compared to a rigid, legally binding international instrument.  He added that the attribution of nationality represented the ultimate bond of allegiance with a State.  It conferred a sense of belonging to, and connection with, the State -- a profoundly political act not easily regulated by binding international norms.  That was particularly true in situations involving succession of States, where political concerns were predominant.  It was therefore, important to retain, as far as possible, the discretion of the States concerned to attribute its nationality in light of its own policies and priorities.

GENNADY V. KUZMIN ( Russian Federation) said the question of nationality had come up in numerous situations lately.  The International Law Commission had responded quickly to the need to address issues involved in nationality and States succession, and had submitted a draft to the Assembly in 1999.  Nine years was long enough to consider the situation.  It was time for action, particularly in light of the emphasis currently placed on the rule of law.  Without a clear statement of the legal principles involved in nationality and the succession of States, the people who were affected lived in “legal limbo”.

He said the Assembly had a practice of not considering the Commission’s drafts as very important; it often preferred not to consider the Commission’s recommendations and simply to shelve matters brought before it.  Therefore, the Legal Committee must step in and clarify the situation based on the principles involved.

The first principle, he said, was the presumption of the right to nationality, as articulated in article 5 of the draft articles, which said that persons who had been living in a territory are presumed to acquire the nationality of the successor State on the date of succession.  To avoid statelessness, all legal steps must be taken to ensure that the people who were involved were not negatively affected.

He said the current absence of a legal regime to cover such situations had led to too many people living, for too long, in legal limbo.  Everyone had a right to citizenship, and nobody could be deprived of a right to a nationality.  His delegation believed an international convention was called for and should be elaborated.

ALEJANDRO MORENO ( Venezuela) said he welcomed efforts of the International Law Commission to prepare the draft articles on the nationality of natural persons in relation to the succession of States.  These articles would act to balance the right of States to regulate loss of nationality, in accordance with domestic law and the human right to nationality enshrined in international law.  Nationality, he added, was governed by internal law; each and every State had to govern this situation to avoid statelessness from arising.  In that regard, he said, he supported the draft articles, which took into account the right of States to self-determination without forgetting the human right to nationality.

Commenting on the observations of other States in the report on the matter (document A/63/113), he said that in the preamble more specific definitions needed to be elaborated with regard to “vague expressions”.  The term “habitual residence” needed clarification.  Article 15 recommended extending the concept of non-discrimination, but should also include those grounds which could lead to discrimination.  This was not an exhaustive list, but would add further weight to the article.  On article 25, he said the phrase “the predecessor State shall withdraw nationality” should be changed to “the predecessor State may withdraw nationality”.  Concerning the form the draft articles should take, he said he supported the adoption of a treaty, bearing in mind that the international community had adopted previous conventions on nationality.

ESMAEIL BAGHAEI HAMANEH ( Iran) said the extensive political and territorial changes which had taken place in many parts of the world, particularly in the last two decades, had demonstrated the need for regulating the inevitable consequences of the nationality of natural persons in relation to the succession of States.  The question of granting or withdrawing nationality was, in principle, a sovereign right of States, and fell essentially within each State’s discretion to decide, in accordance with its relevant domestic laws and regulations, including international obligations incorporated in national law.  This had been well recognized by the International Law Commission and reaffirmed through the decisions and judgements of international courts and tribunals.  The right of every person to a nationality was among the most important human rights.  States should, therefore, take every measure to prevent and reduce statelessness.

“Without nationality, a natural person would effectively be deprived of the juridical status which was necessary for legal protection of their integrity and human dignity,” he said.  However, in circumstances like State succession, the question of nationality of natural persons could not be decided upon by merely according to national laws.  There was a need for clearly elaborated international rules to regulate such a question.  Drafting an international instrument that compiled, and codified, conventional and customary law on the matter would contribute to fulfilment of this goal.  Thus, Iran supported elaborating an international legal instrument based on the provisions of the draft articles.

GERHARD HAFNER ( Austria) said elaboration of a convention was the ultimate goal on the issue of nationality and State succession, because it would be the strongest form of commitment of States.  Recent events had proven the need for such a legal regime, since questions of State succession remained on the agenda of international relations.  Individuals were most affected, and a foremost concern for them was nationality.

He said the practice of codification recently had shown the need to allow an intermediate period in which reactions, views and State practice could be monitored, in response to articles elaborated by the International Law Commission.  Such a process helped indicate when a topic was “ripe” for a codification conference to elaborate a convention.  Proceeding with elaboration shortly after submitting articles to the Assembly could run the risk of provoking unforeseeable amendments that might jeopardize the outcome of the entire codification project.

He said the eight-year period since submission of the articles to the Assembly was not a long time in terms of codifying international law.  The topic should be placed on the Assembly agenda again at the sixty-fifth session in 2010, with a view to considering elaboration of a convention.

Introduction of Draft Resolutions

The representative of United Republic of Tanzania introduced the draft on observer status for the South Centre in the General Assembly (document A/63/L.3).

Costa Rica’s representative introduced the draft on observer status for the University for Peace in the General Assembly (document A/63/L.2).

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