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Sixty-sixth General Assembly
15th Meeting (AM)
Legal Committee Delegates Urge Progress on Measures to Regularize
Situation of Stateless Persons; Seen as Human Rights Issue
Guidelines Are Sought for Nationality Problems of 12 Million
People in States with Changed Identity; Different Approaches Discussed
After years of deliberation on the nationality of persons in the case of the “succession of States”, delegates of the Sixth Committee (Legal) urged that a decision finally be made as to what form draft articles relating to the issue should take.
Opening the discussion, the delegate of Japan pointed out that, in light of the 12 million people who were stateless, the shelving of draft articles by the General Assembly three times in the past 11 years was an “irresponsible trend”. He called upon the Sixth Committee to endorse the articles in the form of General Assembly guidelines, especially since the articles stipulated that the right to nationality was a fundamental human right.
Slovenia’s delegate emphasized how “highly relevant” the topic was to her delegation, especially after the dissolution of the former Socialist Federal Republic of Yugoslavia, the former Czechoslovakia, the former Soviet Union and the fall of the Berlin Wall. She advocated a progressive approach, recommending the formulation of a “soft law document” that offered clear and authoritative guidelines, as well as the possibility of becoming a legally binding document at a later time.
The representative of El Salvador, calling for “fragmentary” visions to be put aside, supported the draft articles taking the form of a binding instrument, striking the right balance between sovereignty and human rights obligations. In situations, such as the border dispute between her country and Honduras, she said, a binding international instrument would be supportive of a peaceful resolution.
Although granting or withdrawing nationality was, in principle, a sovereign right of States, the representative of Iran pointed out that the right of every person to a nationality was among the most important human rights, and he called for clearly elaborated international rules.
However, the representative of Hungary observed that the elaboration of a convention had not gained sufficient support. Despite that, the draft articles had provided guidance to the Council of Europe in the development of their regional convention and had served as reference for the Office of the United Nations High Commissioner for Refugees (UNHCR). It was clear that the articles, as guidelines, could support elaboration of legal instruments at the regional level.
Also speaking today were the representatives of Greece, Spain, Portugal, Russian Federation, Malaysia, United States, and Trinidad and Tobago.
The Committee willmeet again at 10 a.m. tomorrow, Tuesday, 18 October, for discussions on the law of transboundary aquifers, and for the consideration of draft resolutions of four requests for observer status in the General Assembly.
The Sixth Committee (Legal) met today to take up its agenda item of the nationality of natural persons in relation to the succession of States.
For its consideration, the Committee had before it a note from the Secretariat (A/66/178) containing the comments of 15 Governments on the matter and an addendum (A/66/178/Add.1) containing El Salvador’s comments. Government comments were received during the period from February 2009 until March 2011 in response to General Assembly resolution 63/118 (2009), which invited States to offer perspectives on the subject.
The note recalls that at its fifty-first session in 1999, the International Law Commission adopted draft articles on nationality of natural persons in relation to the succession of States and recommended their adoption by the General Assembly in the form of a declaration. The General Assembly then invited Governments to submit comments on the topic, particularly on the elaboration of a legal instrument on the matter, at its fifty-fifth and sixty-third sessions.
In the first section of the note, Governments address the topic at hand and the scope of the relevant draft articles generally, within the purview of preventing statelessness as a result of a State succession; some States also sought clarification on some terminology included in the draft articles. In the second section, Governments comment specifically on the individual draft articles adopted by the International Law Commission. In the third section, respondents offer their views on the advisability of elaborating a legal instrument on the question of nationality of natural persons in relation to the succession of States and the possible form of an instrument.
As of 25 July 2011, replies to the invitation contained in resolution 63/118 (2009) had been received from the following States, listed in the order in which they were received: Suriname, Kuwait, Belarus, Venezuela, Yemen, Philippines, Uruguay, Czech Republic, Austria, Portugal, Mexico, Slovenia, Bulgaria, Kenya and Iraq. Comments from El Salvador were received at a later date and are therefore included as an addendum to the note.
In the note, some Governments are of the view that international treaties concluded between States and concerned by the process of succession should take priority. The opinion is also presented that it is for each State to determine under its own law who are its nationals, within the limits set by international law. In the case of Slovenia, which became a sovereign and independent State in 1991, the note states that internal legislation provided for the legal protection of natural persons, who — as a consequence of the dissolution of the former Socialist Federal Republic of Yugoslavia — resided on the Slovenian territory, thus preventing statelessness. Whatever the solution, the view is expressed that practical interests of States, regarding the succession process, have to be soundly balanced with the rights and expectations of individuals regarding their nationality.
Concerning the elaboration of an international instrument on the subject, the note indicates three options: to leave the draft articles as an annex to General Assembly resolution 55/153 (2000); to adopt the draft articles as a declaration of the Assembly, as recommended by the International Law Commission; and to elaborate an international convention on the basis of the draft articles. While some States argue that the draft articles should be adopted as a declaration, others argue for their adoption as a binding treaty.
SHINYA MURASE (Japan) said its was regrettable that the General Assembly had shelved the draft articles on nationality of natural persons in relation to the succession of States three times in the past 11 years. This was an “irresponsible trend” for an organ charged with establishing and enhancing the rule of law in the international community. He said it was now time for the Sixth Committee to endorse the relevant principles and rules embodied in the draft articles, in the form of General Assembly guidelines. He said it was particularly important that in the draft articles the “right to nationality” for every individual was clearly stipulated as a fundamental human right. In this respect, the draft articles of 1999 significantly advanced international law by providing a “universal right to nationality”.
Turning to the latest assessment issued by Office of the United Nations High Commissioner for Refugees (UNHCR), he emphasized that some 12 million people were stateless. State succession had been a major factor in the growing problem of statelessness. Specifically, the birth of South Sudan earlier this year may have created a problem similar to those engendered by the restoration of the independence of the Baltic States in 1991 and the separation of Czechoslovakia in 1993. In cases such as these, the 1999 draft articles successfully balanced consideration for the human rights of affected individuals with the long-standing prerogative of States to grant nationality to their people. The articles also permitted flexibility to allow each State to adjust its nationality law within bounds of the draft articles. If adopted as a General Assembly declaration, the draft articles would serve as a useful reference for interpretation of a regional convention, such as the 2005 Council of Europe Convention, and a guide to practise in the conclusion of bilateral agreements between States concerned with State succession. Member States should, therefore, propose a draft resolution which endorsed the draft articles as guidelines.
MARÍA DEL PILAR ESCOBAR (El Salvador) said the fact that the International Law Commission continued to address this issue as a priority was testimony that it was an international problem, and one with multiple and varied implications. Before the Committee was a third set of draft articles, and she urged that “fragmentary” visions be put aside. Nationality implied an existing legal link to a State and was a human right as stated in, among others, the Universal Declaration of Human Rights.
Undermining nationality had serious consequences, she said, and she supported the draft articles to take the form of a binding instrument that would strike the right balance between sovereignty and human rights obligations. In this regard, her delegation had submitted an amendment to the draft Article 17, which would state the “principle of nationality” instead of the “procedure” since procedure was the responsibility of every State.
Continuing, she said that this instrument would also enable the legal activity to be influenced by public opinion, ensuring that the judge acted under the rule of law, and assuring the parties involved that a fair, legal process was being adopted. She recalled the border dispute between her country and Honduras, and noted that in the relevant article of their bilateral treaty, the respect of the right of the individual for the right of nationality had made it possible for individuals affected by the dispute to receive identification documents. In her view, situations like this could be further strengthened by draft articles as a binding international instrument.
SIMONA LESKOVAR (Slovenia), said the question of nationality was one of the most difficult and most complex questions in the case of succession of States; settling this issue had become “highly relevant” after the dissolution of the former Socialist Federal Republic of Yugoslavia, the former Czechoslovakia and the former Soviet Union. Further, after the fall of the Berlin Wall, she pointed out that States had sought to find appropriate solutions to these issues through domestic legislation, as there were no legally binding instruments that provided concrete standards. In the case of her country, which became a sovereign and independent States in 1991, internal legislation had been provided for the legal protection of natural persons who were residing on Slovenian territory as a consequence of the dissolution of the Republic. In doing so, statelessness had been prevented.
She emphasized that the right to citizenship was a fundamental human right, recognized under many international legal instruments, including, among others, the Universal Declaration of Human Rights and the Convention on the Rights of the Child. As for the rules regarding this issue, she said it should take the form of a non-binding instrument which would reflect “modern practice and contemporary international standards”. Her country advocated a progressive approach to settling this issue, because it might lead to a legally binding document at a later time. For the present, it was important to formulate a “soft law document”, with clear and authoritative guidelines that could be a useful tool in dealing with this issue in practice.
MARIA TELALIAN ( Greece) said the draft articles elaborated by the International Law Commission were, without doubt, an important achievement of the Commission. They had provided important guidance in Europe, particularly with regard to the dissolution of the former Socialist Federal Republic of Yugoslavia. These draft articles had also inspired regional organizations, such as the Council of Europe, to elaborate a legally binding instrument in this regard.
She said that, in addition, domestic practice had been informed by the draft articles, as illustrated in the Secretary-General’s report on the topic. Given the fact that the draft articles had proven their usefulness, she questioned whether the elaboration of a convention at this time would respond to a real and pressing need; it was important for the draft articles to provide guidance and assistance to States dealing with statelessness as a result of State succession. She said that, concurring with the delegate from Japan, there should be a draft resolution which endorsed the draft articles as guidelines.
CONCEPCIÓN ESCOBAR HERNÁNDEZ ( Spain) noted that the issue being discussed today had been taken up repeatedly by the General Assembly after the International Law Commission had submitted its draft articles, and that this was the fifth time the Committee was addressing this issue, as well. It was of “great concern” to her delegation that there had been no decision adopted on this. The Law Commission had managed, in her view, to reflect in a balanced manner the problems of the nationality of persons that arose in the succession of States, and she noted that the emphasis was on the ultimate aim of avoiding statelessness, which was a grave problem of the international community. She said her delegation welcomed and prized the draft articles, and had no specific observation to make regarding the contents.
She pointed out that the ultimate form of the draft articles, and the various alternatives, were on the table. El Salvador would not, in principle, oppose an international convention based on the draft articles formulated by the International Law Commission. However, the low level and highly varied responses of States regarding the ultimate form was of grave concern to her delegation. In the consideration of future draft articles, she urged that the Council of Europe’s regional convention, which entered into force in 2009, be taken into account. She noted that ratification of this regional convention was very low, now standing at six. As a result, she believed it was too early to start work under the auspices of the United Nations in relation to this issue; nevertheless, it was time for the General Assembly to make a decision. In that regard, she agreed the final form of the draft articles should take the form of a declaration. This would provide helpful guidelines and, in particular, be a useful instrument used to prevent statelessness.
MATEUS KOWALSKI ( Portugal) began by commending the International Law Commission for preparing draft articles regulating such a complex matter. The Universal Declaration of Human Rights embodied the fundamental principle that everybody had the right to nationality. In this regard, the draft articles pursued the important objective of avoiding statelessness in the case of State succession.
Of particular importance on this topic was the need to balance the practical interests of States in the event of succession with the rights and expectations of individuals regarding their nationality. Although the attribution of nationality belonged to the sovereignty of State prerogatives, such a prerogative had to be performed within the limits of international law. It was therefore important to define those limits; the draft articles did so adequately. The question of ensuring the compliance with those limits, however, also related to the final form and the legal strength of the draft articles, which could take form three ways: as an annex to General Assembly resolution A/RES/59/34, as a declaration of the General Assembly, or as an international convention. He believed that the adoption of the draft articles as a declaration of the General Assembly, with broad support from States, would be the most reasonable option at this time.
RITA SÁRA SILEK ( Hungary) noted that the International Law Commission had this topic on its agenda when Eastern Europe witnessed the succession of many States. In 1999, the Commission recommended that draft articles on the matter take the form of declaration from the General Assembly. The Assembly then invited Governments to submit comments on the topic, particularly on the elaboration of a legal instrument on the matter. She noted that, while some States thought a convention should be considered, the notion of elaborating a convention had not gained sufficient support.
The draft articles had instead provided guidance to States with regard to nationality in the event of State succession; for example, they had served to inform the Council of Europe. The draft articles had also served as reference to UNHCR. The draft articles, she said, could continue to support efforts to elaborate legal instruments on the matter at the regional level, but in any event should serve as guidelines.
ANDREY KALININ ( Russian Federation) stated his continued support of drafting a full international agreement on this issue. He stressed that situations regarding the right to nationality should be resolved as fast of possible. This would, he said, be possible only if there were an international regulation. The draft articles of 1999 were “exceptionally pertinent” and the General Assembly had recommended States to consider those draft articles in this matter.
Further, the draft articles had been proven in practice. Regarding the divergent opinions regarding the ultimate form, he said he supported the proposal of a progressive approach and was interested in a soft law document, after which, a full agreement would be drafted. Concluding, he said that the International Law Commission should not “work in a void” on any development on this issue. The aim of the Sixth Committee, he pointed out, was to promote the Law Commission and in that regard, he urged that the Committee’s work not in any way hamper the process.
SARAH KHALILAH ABDUL RAHMAN ( Malaysia) said the consideration of a new legal instrument emanating from the draft articles should be undertaken only once the practice of States and regions pointed towards clearly established custom, and there arose a necessity to codify those customary rules. At this juncture, the draft articles, as annexed to the relevant resolution, adequately served as guidance to States. Before the draft articles could serve as the basis for elaboration of a legal instrument, several provisions in those articles, particularly with regard to nationality within the realm of public international law, needed to be further clarified.
Turning to the issue of dual or multiple nationalities, which were not permitted under Malaysian law, she said States should not lose track of the fact that the determination of nationality remained within their exclusive power and the limits of their domestic laws. The recognition in the draft articles of the possibility of the acquisition of multiple nationalities resulting from State succession should not encourage a policy of such multiple nationalities. Article 14, she added, had fallen outside the juridical scope of the draft articles, by attempting to include within their scope the law governing the status of habitual residents who were aliens to the States concerned.
Another matter for clarification, she said, was the interchangeable use of the terms “effective link”, “appropriate link”, and “appropriate legal connection” in several provisions of the draft articles. Clarification should be made with respect to the context of these terms; otherwise, the draft articles should adopt a standard term which could be commonly applied within the meaning of the concerned provisions.
STEVEN HILL ( United States) said that statelessness could affect democratization, economic development and regional stability. He agreed with the basic tenet of the draft articles that individuals affected by the succession of States must possess the nationality of at least one of the successor States. Further, he urged that Governments review their nationality laws to ensure that there be no discrimination against women, minorities and other vulnerable groups; Stateless individuals within their borders should also be provided documentation, protection from abuse and access to basic services.
Commenting on many of the written observations of Member States, he said the approach to statelessness should take into account the individual right of expatriation and other legitimate concerns of States when determining policies in this matter. The balancing of these “important considerations” merited additional examination. Concluding, he said the written observations had provided useful insights into the perspectives and practices of the responding States, and he looked forward not only to additional submissions but to exploring the issues in as practical a manner as possible.
ESMAEIL BAGHAEI HAMANEH (Iran)said the question of granting or withdrawing nationality was, in principle, a sovereign right of States and fell essentially within each State’s discretion, in accordance with its relevant domestic laws and regulations, including its international obligations incorporated into national law. At the same time, the right of every person to a nationality was among the most important human rights, as enshrined in international human rights instruments.
Continuing, he said States should take every measure to prevent and reduce statelessness. In circumstances like State succession, however, the question of nationality could not be decided upon merely according to national laws; for regulation, there was a need for clearly elaborated international rules. An international legal instrument should therefore be elaborated on the basis of the draft articles contained in the December 2000 General Assembly resolution on the matter.
RODNEY CHARLES ( Trinidad and Tobago) said that efforts had been made by the international community to preserve the right to nationality through various binding and non-binding legal instruments. Trinidad and Tobago, he said, took its international legal obligations seriously, particularly with regard to fundamental human rights and freedoms.
He emphasized that everyone had the right to nationality, and no one should be denied this right, nor one’s right to change nationality. Additionally, States had the sovereign right to confer nationality upon any person. Although nationality was essentially governed by national legislation, he said States could benefit from international guidance on the matter with regard to successive States, specifically in the form of an international legal instrument. Continued failure to arrive at consensus on an international instrument threatened many peoples’ economic, political and social rights. He, therefore, called upon the Sixth Committee to make a clear and unequivocal effort to elaborate an international legal instrument on the subject.
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