Summary Record of the 2388Th Meeting

Document:- A/CN.4/SR.2388 Summary record of the 2388th meeting Topic: Succession of States with respect to nationality/Nationality in relation to the succession of States Extract from the Yearbook of the International Law Commission:- 1995, vol. I Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations 2388th meeting—23 May 1995 55 2388th MEETING and to the situations just mentioned? It was a moot point, but it was not a theoretical question. On the contrary, it was central to the topic under consideration. Tuesday, 23 May 1995, at 10.05 a.m. 2. As to the Special Rapporteur's approach and the structure of the report, after the historical review of the Chairman'. Mr. Pemmaraju Sreenivasa RAO work of the Commission on drafting a regime of State succession, one might have expected to find an indica- tion of what the Special Rapporteur understood to be the Present. Mr. Al-Baharna, Mr. Al-Khasawneh, Mr. content of the topic assigned to him. Did its title refer to Arangio-Ruiz, Mr. Bennouna, Mr. Bowett, Mr. Craw- State succession in matters of nationality, and thus mean ford, Mr. de Saram, Mr. Eiriksson, Mr. Fomba, Mr. that, as in the case of the Vienna Convention on Succes- Giiney, Mr. He, Mr. Idris, Mr. Kabatsi, Mr. Kusuma- sion of States in respect of Treaties and the Vienna Con- Atmadja, Mr. Lukashuk, Mr. Mahiou, Mr. Mikulka, Mr. vention on Succession of States in respect of State Prop- Pambou-Tchivounda, Mr. Pellet, Mr. Razafindralambo, erty, Archives and Debts, the Commission was called on Mr. Rosenstock, Mr. Thiam, Mr. Tomuschat, Mr. Vil- to draw up a specific regime as a positive response to the lagran Kramer, Mr. Yamada, Mr. Yankov. problems posed by nationality in a situation of State succession? Or, did it refer to the impact of any type of State succession on nationality, and thus raise the question, in the light of those same conventions, of what rules and principles were applicable to nationality, and of the extent to which they were applicable? Those two questions should have been considered in detail in a sec- State succession and its impact on the nationality tion of the report preceding chapter I entitled "Current of natural and legal persons {continued) (A/CN.4/ relevance of the topic". Yet not until much further on in, 464/Add.2, sect. F, A/CN.4/467,1 A/CN.4/ L.507, at the end of chapter V, did one read that the Special A/CN.4/L.514) Rapporteur had opted for "the current study of State succession and its impact on the nationality of natural [Agenda item 7] and legal persons". Both the Commission and the Gen- eral Assembly, to which its preliminary study would be submitted, would benefit from an elucidation of the con- FIRST REPORT OF THE SPECIAL RAPPORTEUR tent of the topic. (continued) 3. The preliminary study should avoid two pitfalls. 1. Mr. PAMBOU-TCHIVOUNDA said that the didac- First, the Commission must avoid the temptation to ex- tic approach adopted by the Special Rapporteur in his aggerate the role of international law in the field of the first report (A/CN.4/467), with respect both to the form topic under consideration. Secondly, it should also take and to the substance, was probably warranted by the nov- cognizance of the fact that the question to be regulated elty of the subject-matter. The report reflected the mood concerned, first and foremost, not inanimate objects, but of the times—a mood in which the principle of sover- human beings. His comments would relate to those two eignty that had governed international law since the nine- contentions, which encapsulated the highly political teenth century was heading, at the dawn of the twenty- scope of the topic. first century, towards a watershed where sovereignty and solidarity in the service of humankind converged. New 4. On the first point of contention, which was not nec- times, and a new topic, called for an urgent treatment: essarily a reproach, namely, that the Special Rapporteur that message was to be found in every section of the re- idealized the role played by international law, especially port. Yet one might ask whether that message needed a with regard to its impact on natural persons, three com- report of so many pages, and whether the situations call- ments could be made. To begin with, due primacy must ing for urgency cited by the Special Rapporteur— be restored to internal law, for there was an inherent link namely, those relating to the recent changes in eastern between the State—regardless of the circumstances and Europe—were not already a thing of the past. Admit- context of its emergence—and the nationality of the tedly, the past was useful, but the Commission's task was population claiming to be its nationals. As acknowl- to work for the future. Russia and Chechnya; Morocco edged in the report, both the literature and the practice of and Western Sahara; China and Hong Kong; Rwanda; the courts agreed on the exclusive character of the com- Burundi; Canada and Quebec; Senegal, faced with a petence of the State in determining nationality. In other wave of Casamance irredentism; the European countries words, the State defined the conditions for granting na- currently engaged in building a European Union; Ethio- tionality. But it was also the State that defined the condi- pia, now shorn of Eritrea, yet which in April 1995 had tions for loss of nationality, and the State that could con- acquired a new federal constitution favouring ethnic par- fer on individuals the freedom to choose from among ticularism: those were some of the questions that should more than one nationality. Admittedly, in a celebrated be given urgent treatment in the context of the present opinion delivered in 1984, the Inter-American Court of topic. Could the approach adopted to the problems posed Human Rights had ruled that that principle was limited by the former Soviet Union, the former Yugoslavia, or by the requirements imposed by international law;2 but the former Czechoslovakia be transposed to the future, 2 Proposed Amendments to the Naturalization Provisions of the Po- litical Constitution of Costa Rica (Advisory Opinion OC-4/84, Inter- 1 Reproduced in Yearbook.. 1995, vol. II (Part One). national Law Reports (Cambridge), vol. 79 (1989), p. 283). 56 Summary records of the meetings of the forty-seventh session the scope of that opinion, which was in any case only an State succession should require consultation with the opinion, should be viewed relatively. In the case of inter- population, in the light of the principle of the right of national recognition, for example, it was well known that peoples to self-determination, which was surely a peo- the act whereby a State recognized another State in the ple's collective right. In its advisory opinion on the ques- context of State succession was almost never accompa- tion of Western Sahara? ICJ had reaffirmed the obliga- nied by a requirement that the legislation enacted by the tion of a State to consult with the population. The new State regarding nationality should be in conformity implementation of that obligation devolved on States. In with international law. It was an internal administrative 1987, the Human Rights Committee had clearly matter, a matter for the Government, and one with which recognized that an individual could not claim to be the international law did not concern itself. victim of a violation of the right of peoples to self- determination as set forth in article 1 of the International 5. Secondly, even if international law were to deal with Covenant on Civil and Political Rights. In Czechoslovak that question, it would still be necessary to determine the constitutional law—the most recent example referred to substance—namely, the rules and sources of that interna- by the Special Rapporteur—a law on referendums had tional law. The Special Rapporteur referred to the Draft been enacted in 1991, but had not been implemented, be- Convention on Nationality of 1929,3 but that Convention cause of the need to address the political crisis of 1992. had remained at the drafting stage, and was not positive That law had been allowed to lapse, yet no one had re- law. The report also contained a reference to article 1 of garded that state of affairs as a violation of international the Convention on Certain Questions relating to the Con- law. And when the Czech Republic and Slovakia had flict of Nationality Laws..There again, the Convention each adopted legislation on nationality, that legislation had not entered into force and, in his view, therefore, it had been unequal, with regard to the conditions each im- was not law. posed for the acquisition of nationality, and also with regard to the settlement of questions of dual nationality.9 6. The practice of the courts and customary rules were Thus, article 15 of the Universal Declaration of Human two ways of generating international law which served Rights10 must be seen as declaratory law, rather than as as the background to the principle of effective national- binding law. That article, like the relevant provisions of ity referred to at length in the report. That principle, the Covenant, left States free to take account of their however, was highly controversial. The Mavrommatis 5 own interests and fears, and of other political rather than Palestine Concessions* and Nottebohm cases had con- purely legal considerations, in questions regarding the ferred a practical function on the principle of effective determination of nationality.

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