52ND SESSION
OF THE UNITED NATIONS GENERAL ASSEMBLY

SIXTH COMMITTEE

AGENDA ITEM 147
REPORT OF THE INTERNATIONAL LAW COMMISSION
ON THE WORK OF ITS 49TH SESSION

STATEMENT BY
H. E. AMBASSADOR DR. GYÖRGY SZÉNÁSI
REPRESENTATIVE OF
THE REPUBLIC OF HUNGARY IN THE SIXTH COMMITTEE

NEW YORK
NOVEMBER 6, 1997

Mr. Chairman,

In our statement of October 23, 1997, relating to agenda item 150 concerning the establishment of an international criminal court my delegation has already had the opportunity to congratulate you and the members of the Bureau for their election I would, therefore, like to confine myself to reaffirming our pleasure to see you presiding over the Sixth Committee of the General Assembly this year and to ensure you of my delegation’s readiness to cooperate with you in the fulfillment of your arduous task. I am thus fully convinced that your professional and diplomatic skills I have had the privilege to gain recently some experience during an extremely complex and difficult case before the International Court of Justice opposing Hungary and Slovakia in which you have acted as my counterpart as agent for your country, you will, no doubt, guide this Committee’s work to full success.

Mr. Chairman,

Turning to Agenda item 147, that is the Report of the International Law Commission on the work of its forty-ninth session, I wish to state that the Commission has continued to make considerable progress in 1997 on a number of important topics on its agenda, including new and important items. May I express, on behalf of the Hungarian delegation, our heartfelt gratitude and congratulations to Professor Alain Pellet, both for his excellent chairmanship as well as for his vivid, concise and to the point presentation of the report of the ILC to the Sixth Committee.

My delegation notes with satisfaction that remarkable progress has been achieved on such important items as the "Nationality in Relation to the Succession of States", the rather controversial issue of the "Reservations to Treaties". We also welcome that Working Groups have been established to deal with such important questions such as the International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law, State Responsibility, Unilateral Acts of States, and Diplomatic Protection. We also welcome the work done by the Planning Group deliberating on the programme, procedures and working methods of the Commission and its documentation.

I certainly wouldn’t miss this opportunity to pay tribute to the Special Rapporteurs to the specific items, namely Mr. James Crawford on the topic of "State Responsibility", Mr. Pemmarjau Seenivasa Rao on "Liability", Mr. Victor Rodriguez Cedenõ on the topic of "Unilateral Acts" and Mr. Mohammed Benounna on the topic of "Diplomatic Protection".

Mr. Chairman,

My delegation wishes, after these short introductory remarks, in its present single contribution, to concentrate on those items of this extremely rich "menu" which it considers the most important ones, namely Chapter IV and V.

With regard to Chapter IV of the report, the Hungarian delegation wishes to congratulate the Commission for successfully completing, in a short period of time, the first reading of a draft preamble and a set of 27 draft articles on the topic of "Nationality in relation to the succession of States". This having been said, one cannot but join previous speakers in paying tribute to the Special Rapporteur, Mr. Václav Mikulka for his excellent work, as reflected in his three reports, which has enabled the Commission to produce such significant and substantial progress since 1993, when the decision was made to include the subject matter in the agenda of the ILC.

Due to the turbulent changes of the last few years, the impact of state succession on the nationality of natural persons has been, and continues to be, a very sensitive political and legal problem, especially in Central and Eastern Europe. For this reason Hungary attaches particular importance to this topic and welcomes the result of this year's session of the Commission as a considerable step forward in our endeavour to formulate a document aimed at preventing statelessness.

In view of the decision of the ILC to forward the draft articles to Governments for comments and observations with the request that such comments and observations be submitted to the Secretary General by January 1, 1998 and, in light of the fact that in general, my delegation is in agreement with the major thrust of the draft, I will confine myself to making a few general comments:

- We fully support the approach of the Commission which takes due account of the legitimate rights and interests of both States and individuals but - on the basis of the argument contained in paragraph (7) of the commentary to the preamble according to which, and I quote, "as a result of evolution in the field of human rights the traditional approach based on the preponderance of the interests of states over the interests of individuals has subsided" - also shows special concern for safeguarding the human rights of persons. This approach has manifested itself not only in the preamble but in various provisions of the operative part, e.g. in Article 10 by attributing a role to the will of the individual, in Article 11 by protecting the unity of the family, in Article 12 by recognizing the rights of the child, in Article 13 by protecting habitual residents from the negative consequences of state succession, in particular from the forced transfer of residence and ethnic cleansing and last but not least in Article 14 by forbidding discrimination on any grounds, a provision aimed at protecting minorities.

- My delegation has noted with interest that in defining the link which must exist between the persons concerned and the particular state involved, the draft in its various Articles employs different terminology. We understand that for the sake of a broader interpretation aiming at the prevention of statelessness, in Article 10 regulating the respect for the will of the persons concerned, instead of the stricter requirement of an effective nationality, the Commission opted for the term "appropriate connection". We also appreciate the rationale whereby in Article 18 dealing with the rights of other states not to give effect to the decision of a state concerned, the ILC incorporated the concept of "effective nationality". At the same time, my delegation is convinced that in order to avoid problems of interpretation we should spare no effort to try and establish objective criteria which could be applied universally in the text. In doing so, we should also bear in mind the phrase "genuine and effective nationality", a term first used by the International Court of Justice in the Nottebohm case, and also contained in subparagraph 2a of Article 18 of the European Convention on Nationality, recently elaborated in the framework of the Council of Europe.

- Taking into account the experience gained during the profound changes which have occurred during the last few years in the vicinity of Hungary, my delegation welcomes very strongly the equivalent paragraphs (b) of Articles 22 and 24, applicable respectively to the dissolution of a state and to the separation of a part or parts of its territory. In the case of a pre-existing link, such as place of birth, the last habitual residence in the territory of the predecessor state or any other appropriate connection with the successor state, these paragraphs provide that successor states shall attribute their nationality to all persons concerned /as this term is defined by paragraph (f) of Article 2/ even if they have their habitual residence in another successor state or in a third state. By doing so the draft addresses the difficult situation which arises when successor states do not wish to attribute their nationality to the persons concerned or when successor states establish conditions which can not be met.

Finally, I would like to recall that in its statement last year my delegation expressed certain uneasiness concerning the proposed format of the future instrument. This year, however, we are pleased to note that, following the precedent of the two Draft Conventions on the Elimination of Future Statelessness and on the Reduction of Future Statelessness, the ILC has added a preamble to the draft. Article 2 containing definitions is also encouraging in this respect because it indicates that the format is subject to further discussion and, as a consequence, the possibility is still there to move beyond a "declaration of the General Assembly consisting of articles with commentaries" as recommended in the mandate of the Commission.

Let me turn now to Chapter V of the ILC Report on the "Reservations to treaties". In the view of the Hungarian delegation this topic should rightly be considered as one of the most important items on the agenda of the Commission during the last couple of years. We fully share the Special Rapporteur`s concerns about this enormous task which he undertook and which he characterized as an exercise of "perilous nature .... particularly in view of the complexity and technicality of the topic and the politically very sensitive nature of some of its aspects," (Report of the International Law Commission, GAOR, A/52/10, p.99). While mentioning the role of the Special Rapporteur I would like to take this opportunity to congratulate Professor Alain Pellet for his outstanding achievements in producing two excellent and comprehensive reports on this difficult subject-matter and for submitting a draft resolution for the consideration of the Commission. As we know this draft has offered a sound basis for the adoption of the "Preliminary conclusions of the International Law Commission on observation to normative multilateral treaties including human rights treaties".

As regards these Preliminary Conclusions, the Hungarian delegation wishes to put on record its appreciation of the results achieved by the International Law Commission in this field. We endorse these conclusions especially for the following reasons:

- Basically, we share the view of the Special Rapporteur and the position of the Commission that the major rules of the "Vienna regime" on reservations established by the 1969 and 1986 Conventions are still to be applicable to all multilateral treaties, including the normative multilateral treaties as well.

- We endorse the cautious approach of the ILC having adopted "preliminary conclusions" instead of adopting a resolution. This approach is giving "an elbowroom" for further change and flexibility in the future, if it is so required.

- We also agree with the Commission that the regime of reservations is still to be governed by articles 19 to 23 of the Vienna Convention of 1969, since they strike a proper balance between the objectives of the preservation of the integrity of the text of the Treaty and the universality of participation in the Treaty.

- Nevertheless, we are convinced at the same time that important new developments have occurred in the field of treaty relations since the adoption of the Vienna Convention of 1969 on the Law of Treaties. These developments have necessitated the search for new approaches and new solutions as well. This is particularly true in the case of the human rights treaties. As we all know, this issue, i.e. the admissibility of reservations to human rights treaties, has been at the centre of attention during the consideration of the topic on reservations in the Committee. We commend the ILC for having found a reasonable compromise in accepting paragraph 5 of the conclusions which acknowledges that "where these (human rights) treaties are silent on the subject (i.e. on the appreciation of the admissibility of reservations), the monitoring bodies established thereby are competent to comment upon and express recommendations with regard, inter alia, to the admissibility of reservations "... in order to carry out the functions assigned to them."

We have to note here that the Commission, in order to reach a compromise, has changed the original draft of the Rapporteur, according to which these monitoring bodies would have had "competence to carry out this determination function ... over the permissibility of reservations ..." (paragraph 260, A/CN.4/477 Add.1)

It should also be recalled that, as a corollary to this position, in paragraph 12 of the Conclusions, the Commission "emphasizes that the (above) conclusions are without prejudice to the practices and rules developed by monitoring bodies within regional context." We fully agree with this approach which underlines the importance of the regional arrangements in this field.

Mr. Chairman,

As is well-known to the delegations in the Sixth Committee, the consideration of the nature and legal effects of reservations to human rights treaties has been prompted by certain positions taken by a number of monitoring bodies established by human rights treaties. In recent years, these bodies have started to assess the permissibility of reservations formulated by States to the instruments under which they have been established.

Within the well-known confines of this statement, my delegation is not able to enter into in-depth discussion of the role and competence of the human rights monitoring bodies. That is why we make no attempt to explain our position on a number of important issues such as the General Comment No. 24, adopted under Article 40, paragraph 4 of the International Covenant on Civil and Political Rights, as formulated by the Human Rights Committee in 1995, and the position concerning this General Comment taken by several States and the Special Rapporteur himself. (See in particular: A/50/40, Annexes V-VI., A/51/40, Annex VI., as well as the Second Report of the Special Rapporteur, A/CN.4/477.Add.1) At this juncture, we would only like to emphasize the following points:

- During recent years, Hungary has consistently supported the strict observance and full application of the human rights treaties. It is to be recalled that Hungary became a party to the Optional Protocol of the International Covenant on Civil and Political Rights in 1988 and to the (European) Convention on Human Rights (Rome, 1957) and to its additional protocols in 1992.

- Hungary is doing its best to cooperate with other like-minded states in the framework of European regional organizations, especially in the activities of the Council of Europe, to ensure strict compliance with treaty obligations undertaken by states in the field of human rights, including minority rights, as well as other instruments of human dimension.

Last but not least the Hungarian delegation wishes to put on record its support of the work programme of the International Law Commission in the field of reservations. We are, therefore, looking forward to the two new reports of the Special Rapporteur to be submitted in 1998, i.e. on the definition of reservations and on the effects of reservations, acceptances and objections to reservations. (A/52/10, p.148)

Mr. Chairman,

Finally, the Hungarian delegation wishes to place on record its appreciation of the work done by the International Law Commission on the examination of its own procedures and working methods. We would like to commend in particular, the excellent Report prepared by the Planning Group. We welcome the innovation of the presentation of an impressive working programme of the Commission for the remainder of its quinquennium. My Government would certainly not miss the opportunity to comment, in due course, this very ambitious programme.