Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Twenty-Seventh Meeting Held at Lake Success, New York, on Monday, 13 February 1950, at 11.15 a.m.
Chairman: Mr. Leslie CHANCE Canada
Mr. GUERREIRO Brazil
Mr. CHA China
Mr. LARSEN Denmark
Mr. ROBINSON Israel
Mr. KURAL Turkey
Mr. 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 in category B:
Miss BAER Women's International League for Peace and Freedom
Mr. BERNSTEIN Consultative Council of Jewish Organizations
Mr. LEWIN Agudas Israel World Organization
Mr. HUMPHREY Representative of the Assistant Secretary-General
Mr. LIANG Director of the Division for the Development and Codification of International Law
Mr. GIRAUD Division of Human Rights
Mr. HOGAN Secretary of the Committee
INTERNATIONAL STATUS OF REFUGEES AND STATELESS PERSONS: DRAFT CONVENTION RELATING TO THE STATUS OF REFUGEES (E/AC.32/L.32) (continued)
1. The CHAIRMAN requested the members of the Committee to submit their observations concerning the report to the Rapporteur before the end of the day, in order that the report might be ready for consideration by the middle of the week.
2. He hoped that the problem of the elimination of statelessness would be examined as thoroughly as the short time left to the Committee would allow.
Protocol concerning Statelessness (continued)
3. Mr. LARSEN (Denmark) stated that the Danish Government reserved its position on the question whether the special privileges granted to refugees should be extended to stateless persons who were not refugees.
4. The CHAIRMAN, while taking note of that statement, pointed out that the draft convention drawn up by the Committee was not binding on Governments, which could always make reservations.
The Protocol concerning Statelessness was adopted subject to the reservation made by the Danish representative.
ELIMINATION OF STATELESSNESS (E/AC.32/4)
5. Mr. ROBINSON (Israel) drew attention to the difference between sub-paragraphs (a) and (b) of the operative part of resolution 248 (IX), B, of the Economic and Social Council, dated 8 August 1949. Sub-paragraph (a) instructed the Committee to "consider the desirability of preparing a revised and consolidated convention relating to the international status of refugees and stateless persons and, if they consider such a course desirable, draft the text of such a convention"; sub-paragraph (b) instructed it to "consider means of eliminating the problem of statelessness, including the desirability of requesting the International Law Commission to prepare a study and make recommendations on this subject".
6. The means referred to might be either unilateral action by Governments, or collective international action, or both.
7. Hence the first question to be answered was which of those two methods should be adopted. The second, which was a corollary of the first, was whether, if it were decided that the problem should be dealt with by means of an international convention, a fresh draft convention on the subject should be drawn up, or whether the attention of Governments should merely be drawn to the existing conventions.
8. Before replying to those questions, he thought it well to review the events leading up to the Economic and Social Council's resolution of 8 August 1949. The first step had been a resolution submitted by the Commission on Human Rights to the sixth session of the Council, requesting it to consider certain recommendations concerning a convention on nationality. The Council at its sixth session had requested the Secretary-General to undertake a study of the question in the light of national legislations and existing international agreements and conventions, and to submit his recommendations to the Council. The Economic and Social Council had adopted its resolution of 8 August 1949 on the basis of the recommendations submitted by the Secretary-General (E/1112, E/1112/Add.1 and Add 2).
9. Reference to those documents would show that the Secretary-General had divided the question into two parts: the improvement of the status of stateless persons, and the elimination of statelessness. He had also requested the Council to recommend that States should take the necessary steps to decrease the number of stateless persons in their territory. Such a recommendation would infallibly have a considerable influence on the domestic legislation of the various countries, as had occurred in the case of the Hague Convention of 1930, notwithstanding its failure. Valuable though the recommendation might be, however, its effect could be only temporary, and means of achieving the final aim - the total elimination of the causes of statelessness - should still be sought.
10. With that end in view, there might be proposals to revive the Hague Convention of 1930, with certain modifications. He did not consider that that would be a satisfactory solution; that Convention was not based upon the principle of the equality of men and women, it did not solve the problem of expatriation, and a number of its provisions, for example the one concerning double nationality, were irrelevant for the elimination of statelessness. In so far as it did deal with the question of statelessness, it was inadequate; it could not be used as the basis of a special convention on the subject. The only possible solution would be to adopt a new convention. It would be necessary to decide what body should have the task of drafting it.
11. He was aware that the question of statelessness was one of the fourteen topics selected for codification by the International Law Commission. The latter would have to deal first, however, with six priority topics before taking up the question of nationality and statelessness, which had not been included in the priority list largely because the International Law Commission knew that it was already on the agenda of the Economic and Social Council. At all events, it seemed unlikely that the International Law Commission would be in a position to take up the question of statelessness before its third session, in 1951, at which time it would appoint a rapporteur. The rapporteur report would not be ready for consideration before 1952. Thus a draft convention could not conceivably be drawn up before the fourth session of the International Law Commission, in 1952. Either the urgency of the problem should be recognized and its consideration should be begun immediately, without the great technical help which the International Law Commission would be able to furnish, or else the fact must be accepted that a considerable time would elapse before a convention could be drawn up.
12. In his view the question was too urgent to be left in abeyance until the International Law Commission was in a position to discuss it. The only possible solution was therefore to recommend that the Economic and Social Council should either instruct the existing Ad Hoc Committee to draw up a draft convention, or set up another committee of experts to do so. The draft convention would naturally, when ready, be submitted to Governments for their observations, and would be finally adopted either by the General Assembly or by an international conference convened for the purpose.
13. Finally, he recalled that the Commission on the Status of Women was drawing up a draft convention on the nationality of married women, which might be completed before the convention on statelessness. If that were so, it might be possible to insert the relevant provisions of the draft drawn up by the Commission on the Status of Women in the convention on statelessness.
14. In the light of the foregoing remarks, he submitted the following draft resolution to the Committee:
"THE AD HOC COMMITTEE ON STATELESS AND RELATED PROBLEMS,
"HAVING IN MIND that it was charged by the Economic and Social Council to 'consider means of elimination of the problem of statelessness, including the desirability of requesting the International Law Commission to prepare a study and make recommendations on the subject;'
"HAVING STUDIED the memoranda on this subject prepared by the Secretary-General (E/1112, Add.1 & 2, E/AC.32/3 and 4).
"CONSIDERING that further studies by the Secretary-General of national legislation relevant to statelessness is called for by the resolution of the Economic and Social Council 116 (VI) D;
"NOTING that under the resolution 242 (IX) C an early drafting of a convention on the nationality of married women which would inter alia prevent a woman from becoming stateless is envisaged;
"RECOMMENDS to the Economic and Social Council
"That it is desirable to conclude a comprehensive convention for the purpose of elimination of statelessness;
"That the Secretary-General be requested to complete at an early date a study of national legislation relevant to statelessness and to prepare a draft international instrument on the elimination of statelessness;
"That this convention be prepared either by a second session of this Ad Hoc Committee or by a new Ad Hoc Committee following the completion of the preliminary studies on the subject by the Secretary-General;
"That certain parts of the envisaged Convention of the nationality of married women be incorporated into this Convention;
"To CALL on Member States to amend their legislation in order to remove causes for statelessness and eliminate it altogether."
15. Mr. GUERREIRO (Brazil) recalled that during the discussion of resolution 116 D (VI) of the Economic and Social Council, the Brazilian delegation had suggested that in the study which he had been asked to prepare on the problem of stateless persons, the Secretary-General should outline the role which the International Law Commission might play in helping to solve the problem. The Brazilian delegation had at the time emphasized the difference which existed between the question of improving the status of stateless persons and that of the final elimination of statelessness. The former problem, on account of its special urgency, called for immediate measures; the latter could not be rapidly solved inasmuch as it would necessitate numerous changes in internal legislations. In certain countries those changes could be effected by means of ordinary legislation whereas in others, such as Brazil, constitutional amendments would be needed. The Brazilian delegation therefore felt that the study of so important and complex a question came rather within the competence of an organ such as the International Law Commission. That Commission had shown that it recognized the importance of the problem by the fact that it had rejected by only a very small majority the proposal to add the question of nationality and statelessness to the three subjects on its agenda to which it had given priority.
16. He realized that if the International Law Commission was entrusted with that task, a draft convention would not be ready before 1952, whereas an ad hoc committee might be able to submit a draft during 1951. Whichever organ was entrusted with the task, it would not be possible for the draft convention to be finally adopted by the General Assembly, or by an international conference convened for the purpose, until much later. The question therefore was whether a delay of one year in the solution of so important and complex a problem would be a grave disadvantage, or whether, on the contrary, a longer period of study might not make possible the preparation of a draft which would be more easily acceptable to all Governments. For his part, he did not consider that the problem was of such great urgency and he therefore proposed that the Council should recommend that the General Assembly should refer the matter to the International Law Commission as a priority question. The latter could deal with it as a part of the more general problem of nationality, thus permitting Governments to modify their national legislations on both questions simultaneously. In the meantime, the General Assembly could advise Governments to do their utmost to eliminate the causes of statelessness in their countries.
17. Mr. HENKIN (United States of America) thanked the representative of Israel for his very clear analysis of the situation. From the various statements made he felt that the delegations were in general agreement that the Committee was not, for the time being, in a position to solve the problem. The question therefore was what body should be asked to deal with it.
18. As some representatives had pointed out, the question was already before the International Law Commission; there was thus a certain overlapping in the work of various United Nations bodies. Moreover, to withdraw the question from the agenda of the International Law Commission in order to refer it to an ad hoc committee would not seem to be a very wise decision. Such a method could be resorted to in some cases but in each instance the urgency of the problem should be demonstrated. Although the problem of stateless persons had become particularly acute within the past fifty years, it had confronted humanity for several centuries. Furthermore, if the question were to be dealt with by an ad hoc committee, any convention drawn up by that committee would still come within the competence of the International Law Commission and would ultimately be referred to it. That would mean a return to the existing situation, as the International Law Commission would finally have to study the matter and find a solution.
19. On the other hand, the Committee might decide not to proceed with the study of the question and to refer it to the International Law Commission, asking the Economic and Social Council at the same time to request the Commission to revise its agenda in order to grant priority to the examination of the problem. In that event the Committee would have to establish the urgency of the question.
20. In those circumstances, he wondered whether the Committee could not at least being to study the question, for instance making recommendations with regard to international legislation, though without coming to any final decisions on a problem which it was not for the time being in a position to solve. The International Law Commission could be left to complete the study and eventually to find a solution.
21. Sir Leslie BRASS (United Kingdom) observed that the problem of statelessness was only one aspect of the wider problem of nationality. Generally speaking, the reason for statelessness lay in a conflict between national legislations, which occurred principally in five instances: birth; marriage or the dissolution of marriage; voluntary renouncement of nationality; deprivation of nationality by a Government; lastly, territorial changes in a given country. The latter case could not be covered by a general convention; it would be for the Governments concerned to solve the problem of nationalities on the basis of the territorial changes that had been made. That had been the procedure followed by the Governments of the United Kingdom and Burma when the latter had withdrawn from the British Commonwealth.
22. The Hague Conference of 1930 had been convened to deal with the codification of international law and it was on that basis that it had taken up the problem of nationality. Although it had not, in view of the diversity of national laws, been able to reach any definite conclusions over the whole field of nationality, The Hague Conference had nevertheless included in the Convention it had drawn up certain provisions concerning birth and marriage which, if they had been implemented, would have gone to some extent to eliminate statelessness. Only about a dozen States had ratified the Convention, however, which was proof not only of the difficulty of the problem but also of the unwillingness of States to alter their national legislation. One aspect of the problem, namely, the elimination of statelessness resulting from marriage and dissolution of marriage, also concerned another organ of the Economic and Social Council, the Commission on the Status of Women; the work which the latter had undertaken in that respect might perhaps help to eliminate one cause of statelessness. The International Law Commission would probably approach the same problem from a different point of view; but it would be necessary in the final solution to take into account both points of view.
23. The International Law Commission for its part would doubtless study the question of statelessness only as part of a general subject, namely, the problem of nationality, which figured on its agenda, and it would deal with the problem only from a legal point of view. The problem of statelessness, however, had political and social implications which would seem scarcely appropriated for the International Law Commission and which it could not well consider without the guidance of the Governments. It had been stated that the Secretariat could assist the International Law Commission by preparing the relevant documents. Sir Leslie pointed out that the Secretariat had already made a complete study of the question and that it continued to keep up to date the documents it had produced on the subject. It would therefore be unreasonable to ask the Secretariat to undertake further work in that field.
24. In the circumstances, and as the problem was not, he felt, of exceptional urgency, the Economic and Social Council might be invited to make recommendations to Governments on the elimination of statelessness and perhaps suggest a simple and practical method by which those recommendations could be implemented. In any event, Sir Leslie did not think that the Committee could, during the last days of its session, study in detail the preparation of a draft convention.
25. Mr. PEREZ PEROZO (Venezuela) felt that both the Secretariat's memorandum and the various statements heard by the Committee tended to show that the Committee could solve the problem before it by following one of two methods. Either Governments could be asked through the Economic and Social Council and the General Assembly to amend their legislation in such a way as to abolish the causes of statelessness, or those causes could be removed by preparing an appropriate convention. in the light of the statements made to the Committee, and Mr. Perez Perozo had in mind more particularly the statement made by the representative of Israel, it seemed that the first method was hardly feasible. The second method should therefore be tried and if it were the task of carrying it out might be entrusted to one of three different bodies: the Secretariat, an ad hoc committee appointed for the purpose or the International Law Commission.
26. To call on the Secretariat would have the advantage of ensuring the co-operation of competent experts in the Legal Department and the Department of Social Affairs. Such action would also have the merit of meeting the General Assembly resolutions which asked Members of the United Nations to use the Secretariat services whenever possible. The Secretariat, however, was essentially an administrative body which on that account could not take political decisions. The drafts and documents which it prepared set out all the possible solutions to the questions studied but left it to the Governments to choose that which they deemed the most appropriate. Moreover, when documents prepared by the Secretariat were submitted to the body entitled to deal with the matter in question, the latter, as had happened in connexion with the Convention on Genocide, might well consider that the documents had not the necessary legal standing and might appoint an ad hoc committee to redraft and complete them. The result was a certain overlapping in work of the various bodies, to which attention had already been called, and financial repercussions which were far from negligible.
27. As to the second solution, which was to appoint an ad hoc committee, it was unlikely that it would be adopted as, for financial reasons, most of the States Members had declared themselves opposed to any increase in the number of subsidiary bodies of the Council. Furthermore, the Council would probably not be prepared to renew the terms of reference of the Ad Hoc Committee on Statelessness.
28. There remained therefore the third solution, which was to refer the question to the International Law Commission. As it was, the agenda of that body already included a long list or questions of which at least three had priority of study. The International law Commission would undoubtedly not be able to consider the question of the removal of the causes of statelessness before its third session. In accordance with its Statute, it would then appoint a rapporteur responsible for the preliminary studies and the despatch of a questionnaire to the various Governments. That would take time. In 1952 or 1953, the International Law Commission would be in possession of the necessary information and would take a decision which it would have to publish and send to the Governments for their comments. Then, in 1954, the problem would again come before the General Assembly which might either settle the question on its own initiative or convene an international conference for that purpose. It was thus obvious that the application of the third method would require a fairly long time. At the same time, it must be recognized that the International Law Commission was the most competent body to deal with the question of the removal of the causes of statelessness. Furthermore, that problem was of no immediate urgency; in fact, it was much less urgent than the refugee problem, for the number of stateless persons was much smaller than the number of refugees. On the other hand, if statelessness was considered to be an urgent question, the International Law Commission could always be asked to change the priority given to the questions with which it was called upon to deal.
29. Finally, the Economic and Social Council could ask the General Assembly to recommend that Member States should change their domestic legislation so as to remove the causes of statelessness and adopt the Hague Convention, which embodied a number of provisions likely to be most useful in the solution of the question of stateless persons.
30. Whatever method was adopted, Mr. Perez Perozo was personally convinced that the question of statelessness should be dealt with by the International Law Commission.
31. Mr. LIANG (Secretary of the International Law Commission), asked to speak by the Chairman, pointed out that when the International Law Commission had examined the provisional list of topics of international Law which it might undertake to codify it had shown great interest in the question of statelessness, considered as part of the more general question of nationality. But, on learning that the Economic and Social Council had the intention of taking up the question of statelessness, the Commission had thought that it would be preferable to leave it to the Council to deal with in the first place, particularly in view of the fact that its solution might easily be considered to be an urgent matter.
32. It now seemed that there was some idea of referring the problem of statelessness to the International Law Commission. That being so, Mr. Liang desired to point out that the work of the International Law Commission was in fact carried out in accordance with a somewhat lengthy procedure, but that the representatives of Brazil and Venezuela had perhaps shown undue pessimism in that respect. If the International Law Commission were entrusted with the question, it would appoint a rapporteur and send a questionnaire to the various Governments and the rapporteur would undertake a study of the problem; but in doing so the rapporteur's task would be greatly facilitated by the comprehensive documentation assembled on the subject by the League of Nations, mainly in connexion with the Hague Conference of 1930. The preliminary work would be curtailed greatly by that fact and, very probably, the International law Commission would be in a position to study the actual text of a draft convention at its 1951 session.
33. Some representatives had wondered whether the Economic and Social Council would be able to refer the question to the International Law Commission during its 1950 session. It seemed that that was quite possible, because the Economic and Social Council would meet in July 1950, when the International Law Commission would still be in session.
34. Finally, as some members of the Committee had observed, it might not perhaps be appropriate to appoint an ad hoc committee or any other sort of committee to study a question which might be handled by an already existing organ of the United Nations, the more so when it was remembered that the International Law Commission was fully competent to deal with questions of a juridico-political nature. In fact, when it had been decided that the Commission should study projects of progressive development of international law it had been foreseen that in that field it should take more account of the views of Governments than when engaged in the codification of international law involving only the codification of existing customary law.
35. Mr. LARSEN (Denmark) pointed out that according to its terms of reference the Ad Hoc Committee on Statelessness and Related Problems had been instructed first to consider means of eliminating the problem of statelessness; it was only later and if it found itself unable to solve that problem that the Committee would have to decide to which body the question should, in its opinion, be referred. It would therefore be rather surprising if the Committee were at once to adopt a recommendation referring the question of statelessness to another organ.
36. Were, however, the Committee to consider itself unable to solve the question, it seemed that the International Law Commission was the appropriate body to take up the work, in view of its special competence in the matter. In that connexion, it should be pointed out that the question of statelessness was a very old question and not at all so urgent as, for example, that of the refugee's status; it mattered little whether it was settled in 1952 or 1953. There was therefore no reason to set up an ad hoc committee, which moreover might easily find itself on the termination of its work in the same situation as the Ad Hoc Committee on Statelessness and Related Problems.
37. Mr. WEIS (International Refugee Organization) stressed that his organization was interested only in stateless persons who were also refugees. He would therefore speak as a private individual and as a legal expert on questions of nationality.
38. He was surprised to find that the Committee had opened its discussion on the problem by considering the question of the procedure to be followed. As the Danish representative had remarked, the essential task of the Committee was to study the means of eliminating statelessness, i.e., to examine the causes of statelessness in order to find remedies. The United Kingdom representative had recited some of the causes of statelessness; the Committee also had at its disposal the excellent memorandum on the subject prepared by the Secretariat. He added that it was difficult to resolve on the plane of international law a question primarily involving the national legislation of States.
39. With regard to the practical value of the Hague Convention of 1930, he did not entirely share the views of the representative of Israel. It would no doubt be necessary to supplement the provisions adopted at The Hague, particularly in connexion with the status of married women, but the ratification and implementation of those provisions by States would certainly help to solve the problem of the elimination of statelessness, the difficulty of which was due to its predominantly political nature.
40 Lastly, Mr. Weis felt that the Committee should begin by examining the substance of the problem, i.e. the causes of and remedies for statelessness. It might then be found that some of those remedies should be sought in the field of international law, while others could only take the form of recommendations addressed to Governments; it might also be found that some of those remedies were more urgent than others. Only after studying the substance of the matter and hearing the views of its members, who were both experts and representatives of their Governments, would the Committee be able to take a decision on the procedure it should follow.
41. The CHAIRMAN observed that there was nothing in the Committee's terms of reference to prevent it from studying the causes of statelessness and including its comments on that subject in its report to the Council. At the same time, he attached great importance to the Israel representative's proposals, which had effectively summed up the subject of the discussion.
42. Generally speaking, he had been very much impressed by the arguments of those representatives who were opposed to referring the matter to any other body than the International Law Commission; at the same time, he was aware that the Commission had a very heavy agenda. He therefore wondered whether it would not be preferable to have a draft convention prepared outside the Commission for subsequent transmission to the latter, thus relieving it of all preliminary work.
43. He also felt that the Committee might adopt a simple recommendation requesting Governments to review the relevant provisions of their laws with a view to introducing changes necessary for the elimination of statelessness.
44. Mr. CHA (China) thought the problem of the elimination of statelessness could be resolved by two means: the preparation of an international convention or the adoption of recommendations to be addressed to Governments.
45. Referring particularly to the case of the White Russians resident in China, he remarked that those persons had spent many years in China, in perfectly peaceful conditions, without ever attempting to become naturalized. At the news of the arrival of communist troops, those persons had emigrated to the Philippine a course they might not have had to take if they had been naturalized.
46. If the question of statelessness were brought to the attention of Governments, the latter might be induced to take certain measures, while stateless persons might be encouraged to seek naturalization. Similarly, if decision with regard to the problem were taken by a body having competence in international law, stateless persons might also be more inclined to become naturalized.
47. Finally, Mr. Cha thought that the Committee should study the problem and make positive recommendations to the Economic and Social Council, instead of merely referring the question to the International Law Commission.
The meeting rose at 12.55 p.m.