Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Twenty-Eighth Meeting Held at Lake Success, New York, on Monday, 13 February 1950, at 2.30 p.m.
Chairman: Mr. Leslie CHANCE Canada
Mr. CUERREIRO Brazil
Mr. CHA China
Mr. LARSEN Denmark
Mr. ROBINSON Israel
Mr. KURAL Turkey
Sir Leslie BRASS United Kingdom of Great Britain and Northern Ireland
Mr. HENKIN United States of America
Mr. PEREZ PEROZO Venezuela
Representative of a specialized agency:
Mr. WEIS International Refugee Organization (IRO)
Consultants from non-governmental organizations:
Mr. LEWIN Agudas Israel World Organization
Mr. BERNSTEIN Co-ordinated Board of Jewish Organizations
Miss G. BAER Women's International league for Peace and Freedom
Mr. GIRAUD Representative of the Secretary-General
Mr. HOGAN Secretary of the Committee
ELIMINATION OF STATELESSNESS: MEMORANDUM PREPARED BY THE SECRETARY-GENERAL (E/AC.32/4, E/1112, E/1112/Add.1, E/AC.32/L.35) (continued)
1. Mr. GIRAUD (Secretariat) said the Convention on certain questions relating to the conflict of nationality laws, signed at The Hague, 12 April 1930, was very limited in scope, although he felt that the States which had adopted that Convention had taken important steps towards the elimination of statelessness. Objections had been raised that the Convention was out of date on the ground that it would not provide for equality of men and women as regards nationality. But the aim of the Convention was the elimination of the statelessness of women and not the equality of men and women as regards nationality.
2. The Secretariat had made a thorough study of the general causes of statelessness. As to the position to every national legislation concerning nationality a study such as that suggested by the Israel representative would require the full co-operation of the various governments. They alone could present their legislation in its final form and interpret it. So the best way was to consult them. Furthermore, the most important element was the disposition of the governments concerning a possible reform of their legislation.
3. The CHAIRMAN said that the proposal submitted by the Israel representative at the previous meeting on "means for elimination of the problem of statelessness" (E/AC.32/L.35), had given rise to two different opinions. Some of the members of the Committee had felt that the question should be referred to another body; other members had thought that the Committee should consider the question further in the light of Economic and Social Council resolution 248 (IX). He felt that the views expressed by the Israel representative and those of other members of the Committee were not irreconcilable, and that the question might be referred to the International Law Commission together with the Committee's recommendations.
4. At the previous meeting, the United Kingdom representative had pointed out that statelessness arose at birth, on marriage, or dissolution of marriage, upon voluntary renunciation of nationality, upon deprivation of marriage, upon voluntary renunciation of nationality, upon deprivation of nationality by the State, either as a result of prolonged absence abroad or upon territorial changes. The Chairman considered that each cause of statelessness should be studied separately and a recommendation made in each case.
5. Mr. HENKIN (United States of America) felt that the Committee should also discuss what might be done to eliminate or reduce statelessness in general, and pointed out that one solution for example might be the increased naturalization of stateless persons. The Economic and Social Council might be asked to request Member States to facilitate and expedite the process of naturalization within their countries.
6. He suggested that in discussing the various causes of statelessness the Committee should first consider those which might be eradicated by national action and then those which called for international action.
7. Sir Leslie BRASS (United Kingdom), referring to article 15 of the Convention on certain question relating to the conflict of nationality laws, signed at The Hague on 12 April 1930, and to article 1 of the Protocol relating to a Certain Case of Statelessness to that Convention, suggested that the Committee should recommend that a child born in a lex sanguinis country, of parents having no nationality, should automatically be granted the nationality of the country of birth.
8. Mr. LARSEN (Denmark) said different ideas on nationality were held by various countries. He felt it was interesting to note that the principle of jus soli had been generally adopted by those countries which were separated from other countries by the sea or which did not have a large number of foreigners passing in transit through their territories.
9. If a child was born in a European country which had adopted jus sanguinis the Government of that country considered that the mere accident of birth did not automatically establish nationality ties between that child and the country. If such a child, however, remained in the country until it became of age, then it would have established ties with the country of its birth and should therefore be entitled to the nationality of the country.
10. He considered therefore that the Committee should draft a recommendation stating that a child born in a country which had not adopted jus soli and who stayed in that country until he became of age, should automatically be entitled to the nationality of such a country. If the countries which had adopted the principle of jus sanguinis would accept that recommendation, there would be a great reduction of statelessness at birth. Such a recommendation was not altogether in harmony with article 15 of the Universal Declaration of Human Rights in so far as the child would have no nationality until he reached majority, but it might help to solve the question of statelessness.
11. Mr. CHA (China), speaking as representative of a State which had adopted the principle of jus sanguinis, felt that the Danish representative's recommendation, although good, could not be applied by all States. He referred to the refugees who had sought asylum in China but who had not wished to take Chinese nationality. They had been allowed to work and to practice their professions, but had not been required to become naturalized. When a refugee could make a good living in a country he did not worry about naturalization, nor did the fact that his children were born stateless bother him. Mr. Cha did not propose that Governments should be severe on such persons. Nevertheless, the only way to induce them to accept a nationality would be some severity. Mr. Cha only wished to emphasize the fact that stateless refugees who were not prevented from working and were not required to be naturalized often preferred to remain stateless, and Governments should not be blamed for it.
12. Mr. LARSEN (Denmark) said the Untied Kingdom proposal went further than he thought desirable. He suggested that the Committee might make a recommendation along the following lines:
"In a state whose nationality is not conferred by the mere fact of birth within its territory, a person born in its territory shall have the nationality of the said state,
"(1) If the mother possesses the nationality of that state and the father is without nationality, or is of unknown nationality, or has a nationality which is not conferred on the child;
"(2) If the parents have possessed the nationality of that country;
"(3) If the child remains within the country till it has reached the age of, say, eighteen years."
13. He urged the Committee not to refrain from framing their recommendation s in the form of a draft convention for fear it would not be ratified; a joint Swedish-Danish-Norwegian Committee, meeting in 1949 to discuss the question of nationality, had proposed the adoption of a law contained in the Hague protocol although Denmark had not ratified that protocol.
14. The CHAIRMAN felt that at this stage of its work the Committee should try to reach agreement on broad principles which might form a suitable basis for recommendations. He asked the Committee whether it could agree on the principle that, where a child did not acquire the nationality of the country in which it was born, it should be given that nationality if it had no other. The implementation of that principle would lie almost entirely within the competence of national governments.
15. Mr. LARSEN (Denmark) said the United Kingdom suggestion was not new, but that difficulties arose in connexion with countries which did not apply jus soli. If, for example, an unmarried British woman went to another country for the birth of her child and returned to Britain shortly after the child had been born, the child would not have British nationality, and countries which did not apply jus soli would feel no obligation to confer their nationality on the child. In that case, the fault really lay with British Law because the child did not acquired its mother's nationality.
16. He suggested that the Committee might recommend granting of the nationality of the country in which the child was born, if the child had or had acquired certain ties with the country of birth other than the accident of having been born there.
17. Mr. HENKIN (United States of America) felt that in practice it might prove difficult to follow his original suggestion of drawing a sharp line between areas appropriate for national action and those requiring international action. In general the subject matter required modification of domestic law which could be effected either by domestic legislation in individual countries or by international agreement among several countries to make such changes in their law. If the Committee felt strongly that some recommendations for changes in national legislation must be made, he thought that the Committee should explore the following possibilities:
(1) A recommendation that each country should review its own laws with a view to facilitating naturalization.
(2) A recommendation that countries should re-examine their laws with a view to granting nationality to persons born in their territories who would otherwise be without nationality.
18. It would probably be necessary to consider also laws providing for the loss of nationality, though in this case there were many factors of national policy which might outweigh the considerations of eliminating statelessness.
19. Mr. GUERREIRO (Brazil) agreed with the Untied States representative that the Committee should limit itself to framing general recommendations. It might recommend that countries should make naturalization easier, and should attempt to reduce the occurrence of cases of statelessness. It might then recommend measures for acquiring nationality, recommend that deprivation of nationality should be applied as a punishment only in the most serious cases, and recommend that an effort should be made to prevent the loss of nationality by marriage. The recommendations should, however, be made in very general terms, leaving considerable discretion to the countries concerned.
20. Mr. CHA (China) felt attention should be given to the responsibility of the stateless person himself. In his Government's experience, stateless persons frequently did not wish to become naturalized. If a stateless person did not request naturalization, nothing could be done by Governments in the matter.
21. Mr. WEIS (International Refugee Organization) understood the Danish representative's reservations with regard to the United Kingdom proposal, because it was easy for a country which applied jus soli to confer its nationality on children born in its territory, but very difficult for a country having jus sanguinis. He therefore felt that, at this stage, the Committee should only make general recommendations and consider their implementation later.
22. The CHAIRMAN suggested that the Committee should proceed to consider the question of loss of nationality on marriage or on dissolution of marriage.
23. Mr. HENKIN (United States of America) said that there was some feeling in the Committee that recommendations on naturalization were too vague and too weak. It was for that reason and because it was impossible to give adequate consideration for the time being to the entire field of the elimination of statelessness that he would have preferred no recommendations at all by the Committee. Since, however, the Committee had decided to make some recommendations, a recommendation to facilitate naturalization would be in order even though a provision to that effect was also contained in the draft convention relating to refugees. He pointed out that a specific recommendation would be directed to all countries. The need to give serious consideration to the Council's request might be impressed upon countries by requesting them to report on the subject to the Secretary-General.
24. He reminded the Committee that the question of loss of nationality on marriage had been discussed by the Commission on the Status of Women, and suggested that that body might be left to deal with the subject.
25. Sir Leslie BRASS (United Kingdom) said that article 8 to 11 of the Hague Convention dealt with the question of loss of nationality on marriage or o dissolution of marriage. Article 8 had been an excellent recommendation when it had been framed in 1930, but the whole position of married women had since changed and their status had improved. The subject should be considered from the point of view of the status of women rather than of statelessness, and he therefore supported the Untied States representative's suggestion that its consideration should be left to the Commission on the Status of Women.
26. Mr. LARSEN (Denmark) expressed a preference for concrete proposals embodied in a draft convention rather than general recommendation. If the Committee were willing to devote a little time to it, he felt that it might easily formulate a draft convention on statelessness.
27. The CHAIRMAN said the general sense of the Committee was that it was not in a position to make recommendations on loss of nationality on marriage since that question was already under consideration by another organ of the United Nations. He suggested that the Committee should consider the question of voluntary renunciation of nationality.
28. Sir Leslie BRASS (United Kingdom) suggested that the Committee should recommend that persons should not be permitted to renounce their nationality unless they had acquired another. That principle, which was already embodied in United Kingdom law, would greatly contribute towards the elimination of statelessness if generally accepted.
29. Mr. HENKIN (United States of America) remarked that to force a person to keep a nationality he did not want might in some cases be a greater evil than statelessness itself. The problem of statelessness by voluntary renunciation, as distinct from that of loss of nationality by voluntary acts, gave rise to comparatively few difficulties under normal conditions; moreover, some States actually required renunciation of previous allegiances some time before conferring a new nationality. In view of the above, it would be preferable to make no recommendation on the subject.
30. Mr. LARSEN (Denmark) stated that the law of the Scandinavian countries did not provide for voluntary renunciation of nationality unless the citizen concerned had acquired another nationality or was in the process of acquiring it; the principle recommended by the Untied Kingdom representative was therefore already accepted in those countries. Moreover, that principle was embodied in Article 7 of the Hague Convention. However, he considered the matter important only insofar as it concerned the legal status of stateless persons, i.e. the obligations of the State towards such persons; whether individual citizens should be entitled to voluntary renunciation of their nationality was of no major interest to the Scandinavian countries.
31. Mr. Larsen stressed that statelessness caused by voluntary renunciation should be clearly distinguished from that caused by deprivation of nationality by the State due to actions by the citizen such as serving in a foreign army, participating in elections in a foreign country and so forth.
32. Sir Leslie BRASS (United Kingdom) suggested that the recommendation he proposed should be amended to include persons who were about to acquired another nationality, as well as those who had already acquired it.
33. Mr. HENKIN (United States of America) remarked that the elimination of expatriation permits might increase statelessness rather than reduce it. Many countries refused to admit aliens without such permits. Article 7 of the Hague Convention did not mean that a person could not renounce his citizenship at will, but merely covered the gap between the renunciation of the previous nationality and the acquisition of the new one. To force anyone to retain a nationality not of his own choosing might even be deemed inconsistent with the Universal Declaration of Human Rights, which provided that everyone had the right to change his nationality.
34. Mr. CHA (China) felt that the problem of persons wishing to renounce their nationality could not be solved by legislation. In that connexion, he recalled the case of a United States citizen who had renounced his nationality without acquiring another, and had claimed to be an international citizen. It would be impossible to make recommendations to cover such cases.
35. Mr. LARSEN (Denmark), while agreeing with the Chinese representative in principle, remarked that such cases were in the nature of exceptions. In the majority of cases, renunciation of nationality was due to misinformation as to the consequences of the act, or negligence on the part of the authorities concerned.
36. The CHAIRMAN pointed out that renunciation of nationality was not an inherent right of citizens: the later could merely apply for release from their obligations as nationals of a State.
37. Mr. HENKIN (United States of America) said that United States citizens were not permitted to renounce their nationality unless permanently resident abroad. Exceptions to that rule were made only in special circumstances or in time of war. In normal times, the number of persons becoming stateless owing to voluntary renunciation was negligible. Other causes of statelessness were far more important.
38. Sir Leslie BRASS (United Kingdom) still felt that loss of nationality by voluntary act should be permitted only if it represented a step towards the acquisition of another nationality. As no agreement had been reached, however, it was evident that the Committee was not in a position to make a recommendation on that point.
39. The CHAIRMAN called upon the Committee to consider the problem of statelessness due to deprivation of nationality by the State on the grounds of residence abroad. He suggested that the Committee should recommend that Governments should review their respective positions in that matter.
40. Mr. HENKIN (United States of America) explained that he had previously stated, with regard to deprivation of nationality, there were involved many factors which might be more important than the fact that statelessness resulted. In certain cases for example, the Untied States deprived citizens of their nationality as a penalty. He did not know whether his Government would be inclined to change any of the laws governing the deprivation of citizenship, but felt sure that it would seriously examine the question if the Economic and Social Council recommended it.
41. Mr. LARSEN (Denmark) remarked that the position of the Untied States Government was very similar to that of his own Government in the matter of conferring nationality upon the children of stateless persons. In both cases, the State wished to prevent persons having no genuine ties with it from being its nationals.
42. Sir Leslie BRASS (United Kingdom) suggestion that, in addition to the recommendation proposed by the Chairman, the Committee might also recommend that Governments should consider whether persons liable to deprivation of nationality on the grounds of prolonged residence abroad should not be granted an opportunity to show good reasons for their absence. In that connexion, he stated that persons who were Untied Kingdom citizens by birth were never deprived of their nationality while those who were citizens by naturalization were deprived of their nationality only in very exceptional circumstances.
43. The CHAIRMAN noted that it was the sense of the Committee that a recommendation should be made on the lines originally proposed by him.
44. He called upon members to consider the problem of statelessness due to territorial changes.
45. Sir Leslie BRASS (United Kingdom) stated that past experience had shown that the problem could only be dealt with on an ad hoc basis. The general policy of his Government, where a territory was attaining independence, had been to provide that persons who were closely associated with the Untied Kingdom should retain their British nationality, and to consider that persons whose ties were exclusively with that territory should not do so. Certain persons falling between those two categories were allowed to make their own choice.
46. Mr. HENKIN (United States of America) remarked that in the case of territorial changes due to the creation of a new State, inhabitants of the territory concerned were usually absorbed in the new State.
47. Mr. WEIS (International Refugee Organization) observed that it was impossible to formulate precise recommendations on that issue. Some provision should, however, be made for persons habitually resident in an area affected by a territorial change. The status of such persons had previously been determined on the basis of birth or domicile; that method had led to many cases of statelessness. The system employed under the Treaty of Versailles, based on the factor of habitual residence, had proved more satisfactory.
48. Statelessness due to territorial changes was frequently caused by the fact that neither the ceding nor the receiving State was prepared to accept the inhabitants of the areas concerned as its citizens. Attempts had been made in the past to deal with the problem by international arbitration. A system of arbitration between the States concerned would probably eliminate the difficulty.
The meeting rose at 4.10 p.m.