Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Twenty-Ninth Meeting Held at Lake Success, New York, on Tuesday, 14 February 1950, at 11 a.m.
Chairman: Mr. CHANCE Canada
Mr. CUVELIER Belgium
Mr. GUERREIRO 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)
Consultant from a non-governmental organization in Category B:
Mr. MOSKOWITZ Consultative Council of Jewish Organizations
Mr. GIRAUD Division of Human Rights
Mr. HOGAN Secretary of the Committee
MEANS FOR THE ELIMINATION OF STATELESSNESS (E/1112, E/1112/Add.1, E/1112/Add.1/Corr.1, E/AC.32/3, E/AC.32/4, E/CN.6/126, E/AC.32/L.36, E/AC.32/L.37) (continued).
1. The CHAIRMAN stated that following the extensive debate on the elimination of statelessness which had taken place at previous meeting (E/AC.32/SR.28), in collaboration with certain members of the Committee, he had drafted a provisional text on the subject for inclusion in the report if the Committee approved it (E/AC.32/L.36). As the draft resolution submitted by the Israel delegation (E/AC.32/L.35) had been withdrawn, his provisional text would serve as a basis for discussion.
2. The representative of Denmark had submitted an amendment (E/AC.32/L.37) to the Chairman's proposal suggesting that a draft convention on the elimination of statelessness should be annexed. In that connexion, the Chairman noted that the Committee had already decided in principle that it would not draw up a draft convention on the subject during the current session.
3. Mr. HENKIN (United States of America) was ready to accept the solution contained in the Chairman's proposal as a whole, subject to three modifications which he would like to see introduced.
4. First, he would like it to be made clear that in case of territorial changes steps should be taken by the States concerned to settle questions of nationality which might thereby arise so as to avoid creating any new cases of statelessness.
5. Secondly, provision should be made for implementation of the resolution contained in the proposal. It did not seem that that should be a question for the High Commissioner for Refugees, whose functions with regard to statelessness had not yet been clearly defined. The Secretary-General was therefore the person who should be requested to undertake the necessary studies on the implementation of the provisions of the resolution.
6. Lastly, he thought that the phrase referring to laws on the loss of nationality was too vague. Those laws could not be considered from the viewpoint of the problem of statelessness alone; there were other factors which could not be ignored. The laws existed in most countries, and the grounds for them were so serious in certain cases, such as treason, that their retention was justified even when individuals affected by them would thereby become stateless.
7. The CHAIRMAN recalled that at its previous meeting the Committee had reached the conclusion that it was difficult to lay down general rules for cases of statelessness resulting from territorial changes and that it would be better for the problem to be decided individually in each case. That was why the provisional text did not mention such cases.
8. He agreed that a paragraph, the wording of which would have to be worked out later, might be added on the procedure for implementing the resolution.
9. He explained that he had included a reference to laws on the loss of nationality in his text because he had thought that it was desirable to go further than the Hague Convention in that respect; that Convention had merely recognized in general terms that elimination of statelessness was the ideal to be sought. That was why it had singled out two categories of statelessness among a number of others: statelessness resulting from laws governing the acquisition of nationality at birth, and statelessness resulting from laws on the loss of nationality. It did not seem that there should be any objection to the inclusion of the latter category; States were merely requested to review their legislation on the subject and in doing so they would, of course, take account of all the factors of the problem, within the framework of their legal systems.
10. Sir Leslie BRASS (United Kingdom) thought that the provisional text should indicate that the case of married women had not been mentioned in the draft resolution because the Committee had taken into account the fact that their status would be regulated from a more general viewpoint by the Commission on the Status of Women.
11. The CHAIRMAN observed that the reference to the Commission in the second paragraph of the draft text should be sufficient. He asked the representatives of the United States and the United Kingdom to submit their suggestions in a specific form so that the Committee could take a decision on them.
12. Mr. KURAL (Turkey) gave two reasons why his delegation had hitherto refrained from intervening in the debate.
13. First, under Turkish legislation, there was a hybrid system based on both jus soli and jus sanguinis which made it impossible for statelessness to result from birth or marriage.
14. Secondly, the Turkish delegation did not think a recommendation would be effective in solving a problem of that kind. A recommendation did not impose obligations on States; it merely appealed to their goodwill. The problem of statelessness, however, had existed for centuries, and States had made very little attempt to eliminate it. The recommendations of the Economic and Social Council and of the General Assembly itself had met with little success in that connexion. The only solution to be considered therefore was an international convention. A convention could not of course be drawn up immediately, and it was a very wise move to refer the question to the International Law Commission, as proposed in the last paragraph of the draft text.
15. It was true that a recommendation might have a certain psychological effect, but only if it did not go beyond what States could reasonably be expected to do. States were particularly touchy about anything connected with loss of nationality and it was hardly likely that a mere recommendation would induce them to amend their legislation on the subject, as it was fully justified in their eyes by the gravity of the cases, however rare, that it was intended to cover.
16. In conclusion, although he was favourable to the Chairman's proposal as a whole, he would like the phrase referring to laws on loss of nationality to be deleted entirely or to be clarified as the United States representative had suggested.
17. Mr. CUVELIER (Belgium) pointed out that the text the Chairman proposed to insert in the report was incomplete. On the one hand, it failed to indicate the two conflicting tendencies which had become apparent in Committee, one advocating a detailed study of the substance of the problem of the elimination of statelessness, as in the Danish proposal, the other inclined towards a rapid solution by means of certain general recommendations. On the other hand, it failed to indicate why the Committee had favoured the latter solution. That omission should be repaired by inserting an additional paragraph in the Chairman's draft text before the words: "As a result of these deliberations...".
18. Mr. LARSEN (Denmark) recalled that, after requesting the Secretary-General in its resolution 116 (VI) D to undertake a study of national legislation and international agreements and conventions relevant to statelessness, the Economic and Social Council had considered the memorandum drafted as a result of that study (E/1112/Add.1) and had, in its resolution 248 (IX) B, instructed the Committee to consider means of eliminating the problem of statelessness. Such, therefore, were the basic terms of reference of the ad hoc committee set up for that purpose. Only if it failed to carry out that work must the Committee undertake the secondary task of examining the desirability of requesting the International Law Commission to prepare a study and make recommendations on that subject.
19. The Committee should, therefore, itself undertake the consideration of means of eliminating the problem of statelessness in the first instance. With a view to providing an appropriate working paper, the Danish delegation had prepared the rapid draft of a convention (E/AC.32/L.7), which took the views expressed at the previous meeting into account.
20. It must be emphasized that the Committee would in no way commit Governments by taking up the substance of the problem and drafting the text of a convention, as the final text of that convention would probably be settled only at an international diplomatic conference especially convened for that purpose. Governments would, however, find it useful to have beforehand a technical document upon which to base their study and the necessary legal discussion of the subject.
21. It was true that the Danish proposal could be regarded at the existing stage only as an addition to the provisional text of the paragraphs which the Chairman was proposing to insert in the report, but even as that kind of annex, it might be of the greatest value for the subsequent solution of the problem of statelessness.
22. The CHAIRMAN thought that if the Danish draft was appended as an annex to the text to be inserted in the report, a paragraph stating that the Danish representative had submitted a specific proposal which had been annexed to the report for the purpose of examination by the International Law Commission should be added to his own proposal.
23. Mr. LARSEN (Denmark) suggested that the text of the additional paragraph should be drafted jointly by the Danish and Belgian delegations in such a way as to cover both the reference to the Danish draft convention and the statements which the Belgian representative wished to have inserted in the report.
24. Mr. CUVELIER (Belgium) would not wish it to be assumed that he was in favour of the Danish draft convention or even thought that it would be opportune to discuss it in detail if he agreed to collaborate in the final drafting of that text. The sole purport of his own request was that a reference should be made in the report to the trends of opinion which had come to light in the discussion and the reasons for the decision which the Committee had reached.
25. Sir Leslie BRASS (United Kingdom) saw no use in discussing the Danish draft, as the Committee had already stated its views on most of the points covered by its provisions.
26. Thus, on the subjects dealt with in the first three articles, the Committee had shown that it preferred solutions other than those proposed by the Danish representative with regard to statelessness caused by birth.
27. The Committee had also favoured broader solutions than those in articles 4 to 6, which dealt with statelessness caused by marriage.
28. Furthermore, at the previous meeting the Committee had considered the effect of recognition and adoption; it had decided that those were secondary matters and he thought that there was no need to dwell upon them.
29. The Committee had already decided to make no recommendation about release from nationality, covered by article 9.
30. Finally, the Committee had agreed that questions of nationality arising as a result of territorial settlements should be decided as such changes occurred, that general rules on that subject could not possibly be drawn up and that States should make every effort to avoid the creation of new cases of statelessness when making territorial settlements.
31. The CHAIRMAN agreed with the United Kingdom representative that there was no reason to reconsider decisions the Committee had already taken. The Danish proposal would not, therefore, be discussed article by article. There was no objection, however, to the Committee deciding to attach that draft to the report in an annex; it would be useful there as an illustration of one of the trends of opinion which had become evident during the debate on the problem of the elimination of statelessness.
32. Mr. LARSEN (Denmark) accepted the Chairman's decision and confined himself to replying to the United Kingdom representative's criticism of the provisions of his draft convention.
33. Articles 1 to 3, in his opinion, did in fact lead to a result similar to that which the majority of the Committee had had in mind during the discussion of cases of statelessness due to birth.
34. The purpose of article 4 was to prevent marriage making a wife stateless, whereas the Commission on the Status of Women was attacking the very different question of whether a married woman should acquire the nationality of her husband or retain her original nationality.
35. A general rule was in fact stated in article 10, because the practical obligation was laid on States to make such arrangements about nationality as would obviate the creation of new stateless persons whenever territorial settlements were made. It would seem that such a rule was in no way incompatible with the wishes of the majority of the Committee as expressed at the previous meeting.
36. He therefore proposed that the following phrase should be added at the end of the last paragraph of the provisional text prepared by the Chairman: "taking into consideration the discussion of the Committee and the draft convention annexed to the report".
37. Sir Leslie BRASS (United Kingdom) objected that the text ought to make it clear that the Committee did not consider itself in any way responsibly for the draft convention.
38. The CHAIRMAN thought that the text proposed by the Danish representative could hardly be accepted.
39. In his opinion, a reference should be made to the fact that the discussion had borne on the question whether the Committee could draft a convention on the elimination of statelessness; that the Danish delegation had made a specific proposal to that end, which appeared as an annex to the report; and that the Committee had nevertheless judged that it could examine the problem only in a general way. Then the reasons why the Committee had reached that solution would be set out: after spending so many meetings in drafting a convention on refugees and a protocol on stateless persons, it had not felt able to undertake yet another piece of work, which would probably be no less arduous, which would require special technical qualifications for its accomplishment, and which undoubtedly fell within the province of other organs of the United Nations, at least in part. Consequently, the Committee had confined itself to proposing a draft resolution of a very general nature and to suggesting that the International Law Commission should be requested to prepare a draft convention on the elimination of statelessness.
40. He thought that the Committee's terms of reference showed that the economic and Social Council had not, in drawing them up, expected that the Committee could reach any solution other than that of referring the question to the International Law Commission. The Committee would nonetheless have fulfilled its responsibilities conscientiously. The problem of stateless persons would have been continuously under review; it would have done a great deal for them by preparing the draft convention on refugees and the protocol resigned itself to transmitting to the International Law Commission the problem of the elimination of statelessness, which it had been able to examine only in very general terms.
41. Mr. LARSEN (Denmark) was prepared to agree to that solution if the provisional text (E/AC.32/L.36) was amended as suggested by the Chairman.
42. The CHAIRMAN hoped that the amendment, which would be prepared during the meeting, would satisfy both the Danish representative and the Belgian delegation.
43. Sir Leslie BRASS (United Kingdom) read the additional paragraph on the statelessness on married women, which he proposed should be inserted in the provisional text after the penultimate paragraph:
"The Committee had not included in the draft resolution a specific reference to the statelessness of women caused by marriage or dissolution of marriage because the question of the nationality of married women is at present being considered on a broader basis by the Commission on the Status of Women".
44. The CHAIRMAN noted that the Committee was in agreement on the principle of that additional paragraph.
45. Mr. HENKIN (United States of America) recalled his previous remarks on the draft resolution submitted by the Chairman and added that it would be unwise to refer to laws which deprived persons of nationality because the scope of such laws went far beyond the Committee's sphere of competence. No reference to the matter should therefore be made in the draft resolution. But the Committee's report should indicate that the omission was due to the fact that the laws dealt with problems other than statelessness and that the Committee was not competent to discuss their soundness.
46. He submitted a text in substitution of the draft proposed by the Chairman. He emphasized that he had done so in response to a request from the Chairman and as a member of the Committee, but not in his capacity as United States representative. His proposed text read as follows:
"The Economic and Social Council,
"1. Calls upon States to re-examine their laws governing the acquisition of nationality at birth or by naturalization with a view to reducing, so far as possible, cases of statelessness which arise from the operation of such laws;
"2. Invites States to contribute to the elimination of statelessness by extending to stateless persons in their territory the opportunity of being naturalized;
"3. Recommends to States involved in changes of territorial sovereignty to include in their arrangements for such changes the necessary provisions for the prevention of any statelessness which might result from the territorial changes, and
"4. Requests the Secretary-General to seek information from Governments and to undertake consultation with individual Governments with regard to the carrying out of the provisions of this resolution."
47. Mr. ROBINSON (Israel) did not feel he could accept the text submitted by the United States representative in its entirety. To illustrate his position, he gave the following analysis of its four paragraphs.
48. Paragraph 1 was based on two premises, the first of which was correct, inasmuch as statelessness might result from the laws governing the acquisition of nationality at birth; the second, however, was false, because the laws governing naturalization could not be regarded as a cause of statelessness. Naturalization laws diminished cases of statelessness and had less bearing on statelessness than laws depriving persons of nationality, to which it was proposed that the draft resolution should make no reference.
49. Paragraph 2 was redundant, being a mere repetition of the provisions of the Draft Protocol on Stateless Persons and of article 29 of the Draft Convention relating to the Status of Refugees. It seemed unnecessary to make a further reference to those provisions without making any concrete addition to them.
50. Paragraph 3 dealt with territorial changes and its purpose was not very clear. Recent territorial changes were of two kinds, those resulting from the Second World War and those resulting from the liberation of non-self-governing territories. In neither case had the problem of statelessness ever arisen. The Peace Treaties signed with Hungary, Romania and Bulgaria contained no clause dealing with statelessness; only the Italian Peace Treaty contained such a provision. The Saar, whose fate was still undecided, might raise the question of statelessness, but that was not certain. In States created since 1945 the question of statelessness had not even arisen, since no new case had arisen. In the circumstances it might be asked why the Committee should propose a recommendation which would have no practical value. It should also be borne in mind that the Universal Declaration of Human Rights already provided that every individual had a right to a nationality (article 15). It was therefore unnecessary for the draft resolution to repeat that provision in a different form.
51. Mr. Robinson also drew attention to a moral consideration, namely, that the idea of territorial change was usually linked with that of war and conquest. It therefore seemed undesirable to refer to territorial changes and their consequences.
52. Paragraph 4 raised a constitutional problem for the United Nations. Mr. Robinson did not think that the Secretary-General could undertake consultation with Governments in order to implement the provisions of a resolution. In any event he had never yet been called upon to do so. The Committee was thus proposing to create a precedent which might give rise to serious constitutional difficulties and Mr. Robinson doubted the wisdom of such a step.
53. Mr. HENKIN (United States of America) said that he fully understood the Israel representative's criticism and even shared the view on which his criticism was based, that the Committee could take no action without making a very thorough study of the problem of the statelessness.
54. He had only submitted a text because the Committee had felt that it should make some recommendations. His text was merely an amendment to the draft submitted by the Chairman.
55. He did not feel that all the Israel representative's criticisms were wholly justified. In the first place, territorial changes might occur without war or conquest; if some recent territorial changes had not given rise to the problem of statelessness, it was precisely because the necessary measures had been taken. In the second place, naturalization laws did in fact have a bearing on statelessness, since they served to prevent many stateless persons from acquiring a nationality. He would, however, raise no objection, if the Committee decided not to include a reference to the laws governing the acquisition of nationality by naturalization in the draft resolution.
56. He did not know whether the Israel representative's criticism of paragraph 4 was valid and would be interested to hear the Secretariat's opinion.
57. Mr. GIRAUD (Secretariat) considered the problem of United Nations constitutional law raised by paragraph 4, namely, what the Secretary-General could do. The answer was that he could and must do whatever he was requested to do by the higher organs of the United Nations. He was generally asked to collect information and prepare studies. If he was asked to undertake consultation, he did so, but his action was confined within certain limits; he could not, for example, exercise political pressure, protest or express criticism. The Secretary-General asked questions and could occasionally remind Members of the obligations they had assumed ant draw their attention to the advisability of taking certain action. He did so, however, with the greatest possible discretion, as befitted an official responsible to General Assembly and the Councils.
58. Mr. PEREZ PEROZO (Venezuela) pointed out that the adoption and acceptance of a convention on the elimination of statelessness would take a considerable time. It was therefore desirable that States which had not yet adhered to the Hague Convention should reconsider their position and the Committee might well advise the Economic and Social Council to recommend that Member States should adhere both to the Convention and the Protocol of The Hague. Such advice would be a concrete measure within the terms of the Committee's terms of reference.
59. The CHAIRMAN proposed that the words "or by naturalization" in paragraph 1 of Mr. Henkin's text should be deleted. That would meet the wishes of the Israel representative and Mr. Henkin himself had no objection.
60. Mr. CUVELIER (Belgium) thought that the text proposed by Mr. Henkin required some amplification. He did not feel that it was desirable to refer to the laws governing the acquisition of nationality alone and would therefore prefer that the resolution should simply read: "Calls upon States to review their nationality laws with a view to...".
61. Mr. ROBINSON (Israel) said that of the three proposals before the Committee, those of the United States, Belgium and Israel, the Belgian proposal seemed the most satisfactory; it did not specifically indicate that only the laws governing the acquisition of nationality were in question. On the contrary it implied that the laws which deprived persons of nationality were not excluded.
62. The CHAIRMAN proposed that the wording proposed by the Belgian representative: "Invites States to re-examine their laws on nationality..." should be adopted.
It was so decided.
63. Mr. HENKIN (United States of America) agreed that that text was preferable, in that it was couched in more general terms; but by making a specific reference to the laws of nationality it raised the very complex problem of nationality from the point of view of statelessness alone. The United States did not consider that statelessness was the most important aspect of that problem, which included other important elements connected with the national aspect of the question. The United States criticized that way of approaching the problem in so far as it concerned the laws governing loss of nationality.
64. The CHAIRMAN called upon the Committee to state its views on paragraph 2.
65. Mr. HENKIN (United States of America) felt that paragraph 2 should not be deleted simply because it laid down provisions already mentioned in the draft convention relating to the status of refugees and in the draft protocol concerning stateless persons. Such repetition, although perhaps unnecessary, could do no harm.
66. The CHAIRMAN was inclined to agree with the Israel representative's view, but saw no reason to delete paragraph 2; he therefore suggested that it should be retained.
Paragraph 2 was adopted.
67. The CHAIRMAN proposed that paragraph 3 should be adopted.
Paragraph 3 was adopted.
68. The CHAIRMAN proposed that paragraph 4 should be adopted, with the words "and to undertake consultation with the individual governments" deleted, at the suggestion of the Secretariat.
Paragraph 4, as amended, was adopted.
69. Mr. HENKIN (United States of America) asked whether paragraph 1 should not be amended to read: "calls upon States to re-examine their laws governing nationality and to consider the desirability of amending these laws with a view to ...".
70. The CHAIRMAN pointed out that to call upon States to re-examine their laws was tantamount to inviting them a fortiori to introduce any amendments found necessary. Mr. Henkin's amendment did not therefore seem necessary.
71. Mr. ROBINSON (Israel) pointed out that the proposed text spoke of "States" in general and not of "Member States". According to Article 62 of the Charter, however, the Economic and Social Council could call upon Member States only; the Security Council, which was responsible for the maintenance of international peace and security, the only organ that was empowered to approach any State, whether or not it was a Member of the United Nations.
72. He therefore suggested that the word "States" should be replaced by "Member States".
It was so decided.
73. Mr. WEIS (International Refugee Organization) drew the Committee's attention to paragraphs 2 and 4. Paragraph 2 did not seem very clear. A stateless person could in point of fact become naturalized, as could any other alien, but paragraph 2 seemed to imply that that was not so. It would therefore be more in keeping with the Committee's intention to say "by extending to stateless persons... more facilities to be naturalized".
74. There was no mention in paragraph 4 of the High Commissioner for Refugees, one of whose duties was to enter into consultation with Governments with a view to initiating measures for the improvement of the lot of refugees; the High Commissioner was therefore entitled by his terms of reference to deal with the problem of reducing the number of stateless persons by means of naturalization. The High Commissioner's powers should not be ignored.
75. The CHAIRMAN pointed out to the IRO representative that the fact that the High Commissioner had not been mentioned did not in any way detract from any powers he might have in the matter. On the contrary, it seemed wiser not to refer to the High Commissioner in paragraph 4, in view of the fact that his terms of reference had not yet been exactly defined.
76. Paragraph 2 had been intentionally drafted in its existing form because the Committee did not wish to go into the details of the question. The IRO representative's amendment did not, therefore, seem advisable.
77. Mr. ROBINSON (Israel) pointed out that Secretariat had made a very clear distinction between the question of the elimination of statelessness and that of the reduction of the number of stateless persons. That, in his opinion, was a necessary distinction and paragraph 2 should be amended by substituting the words "to the reduction of the number of stateless persons" for the words "the elimination of statelessness".
It was so decided.
78. The CHAIRMAN proposed that the draft resolution should be preceded by a statement drafted on the lines suggested by the Belgian representative.
79. He proposed the following text:
"Discussions in the Committee developed two main points of view:
(a) that of the majority, that the Committee could not at this stage proceed to the drafting of a convention on the subject of the elimination of statelessness; and (b) the view of the minority, that a draft convention could and should be formulated by the Committee as a basis of discussion for some other organ which would be called upon to deal more definitively with the matter. A proposal submitted by the representative of Denmark in this respect will be found in paragraph 30 of this Chapter.
"The conclusions of the majority were based principally upon the following factors:
(a) The Committee had by the time it reached this item on the agenda already completed a draft Convention Relating to the Status of Refugees, and a Protocol Relating to the Status of Stateless Persons. These labours had largely exhausted the time at the disposal of the Committee.
(b) The Committee felt, moreover, that it was at this stage difficult, if not impossible, to approach in the necessary detail a matter of such complexity."
The text proposed by the Chairman was adopted.
80. Mr. HENKIN (United States of America) wondered whether the last paragraph of the draft proposed by the Chairman (E/AC.32/L.36) should not be incorporated in the body of the draft resolution.
81. Mr. ROBINSON (Israel) thought that in view of the great importance of the recommendation that should be done.
82. Mr. HENKIN (United States of America) proposed a text to replace the text submitted by the Chairman.
83. Mr. GUERREIRO (Brazil) and Mr. LARSEN (Denmark) proposed some amendments to Mr. Henkin's text.
84. After a brief discussion the CHAIRMAN submitted to the Committee the following text, based on the United States representative's proposal:
"1. Considering that progress in the elimination of statelessness requires joint international action; and
"2. Considering that the conclusion of a comprehensive agreement for this purpose is necessary;
"3. Requests the International Law Commission to prepare the necessary draft documents at the earliest possible date."
The text was adopted and became part B of the draft resolution.
85. The CHAIRMAN proposed that the Committee should adopt the draft resolution as a whole, paragraphs 1, 2, 3 and 4 of which formed part A.
The draft resolution was adopted.
86. The CHAIRMAN announced that the Committee had exhausted its agenda, with the exception of the item on the adoption of the report.
87. The Committee's draft report would be considered at the next meeting, which would be held on Wednesday, 15 February, at 3 p.m.
The meeting rose at 1.5 p.m.