DIPLOMATIC PROTECTION IS PREROGATIVE OF STATE, NOT RIGHT OF INDIVIDUALS, LEGAL COMMITTEE TOLD

Press Release
GA/L/3056

DIPLOMATIC PROTECTION IS PREROGATIVE OF STATE, NOT RIGHT OF INDIVIDUALS, LEGAL COMMITTEE TOLD

Diplomatic protection was not a right of individuals, but a prerogative of a State to its nationals, some representatives said this afternoon as the Sixth Committee (Legal) continued its consideration of the report of the International Law Commission on the work of its forty-ninth session.

In considering the topic for the first time, the Commission examined the scope and content of diplomatic protection and it appointed a working group and a special rapporteur for the issue. The working group defined diplomatic protection as a formal claim made by a State in respect to an injury to one of its nationals. Some representatives were concerned, however, that the Commission would make it an individual human right.

The representative of Slovenia said the development of contemporary human rights law had affected the traditional notion of diplomatic protection. However, diplomatic protection must be viewed primarily as a right of a State, not of an individual. The Commission should explore that field carefully, including the legislative practice of States that already attributed the right of diplomatic protection to their nationals on the basis of domestic legislation.

The representative of Australia said that, traditionally, a State's exercise of diplomatic protection was discretionary and there was no individual right to such protection under domestic law. A different approach at the international level would require an analysis of the basis on which a national might claim an entitlement of right to protection. Recognition of an individual right to demand diplomatic protection, would require an analysis of States' views and practice.

Statements were also made by representatives of China, France, New Zealand, Austria, Bahrain, Egypt, Czech Republic, Hungary and Ukraine.

The Committee will meet again at 10 a.m. tomorrow, 7 November, to continue its consideration of the International Law Commission's report on the work of its forty-ninth session.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to continue its consideration of item 147, the report of the International Law Commission on the work of its forty-ninth session, with an emphasis on Chapters VI through X.

Those chapters deal with State responsibility, international liability for injurious consequences arising out of acts not prohibited by international law, diplomatic protection, the unilateral acts of States, and other decisions and conclusions of the Commission. (For background, see Press Release GA/L/3049 of 27 October.)

Statements

GAO YANPING (China) said, on the topic of State responsibility, that it was necessary to take some counter-measures against internationally wrongful acts. The main issue here was that, while acknowledging the entitlement of the injured State to take counter-measures, those counter-measures should be subject to certain appropriate restrictions. While the injured State may consider the freezing of assets and suspension of permission as interim measures of protection, the wrongdoing State might take them as counter- measures and could unilaterally resort to arbitration. Further clarification and justification relating to counter-measures were, therefore, needed during the second reading on such issues as the precise meaning of "interim measures of protection".

On the topic of unilateral acts of States, she said the title of the topic should be "unilateral legal acts of States". The adjusted title could help remove the misgivings that some big powers may attempt to obtain recognition of their unilateral wilful acts. Consideration of that topic would contribute to clarifying the modality of the functioning and legal consequences of that kind of act.

MIRJAM SKRK (Slovenia) said, on the topic of State responsibility, that the Commission needed to re-examine all relevant questions pertaining to international crimes and international delicts with great prudence and care, taking into account the comments of government as well as the international legal doctrine. At present, it was premature to take a firm position on counter-measures because the present system of counter-measures resided on the distinction between the international crimes. Therefore, a final decision depended on a definite decision being made on international crimes.

On diplomatic protection, she said the development of contemporary human rights law had affected the traditional notion of diplomatic protection. On the international level, however, diplomatic protection must be viewed primarily as a right of a State, not of an individual. The Commission should explore that field carefully, including the legislative practice of States

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that already attributed the right of diplomatic protection to their nationals on the basis of domestic legislation.

DAMIEN LORAS (France), speaking on State responsibility, said his government intended to submit comments on the topic to the International Law Commission as requested by it. The general approach adopted by the Commission had given rise to new difficulties. He criticised the concept of lack of obligations which, he said, would lead to State responsibility. He also criticised the Commission's definition of international crimes. The distinction drawn between crimes and offenses was vague. The issue of counter-measures should not appear in the draft articles on State Responsibility. There was no reason for an ad hoc mechanism to deal with State responsibility. An optional protocol might be useful, he said.

FELICITY WONG (New Zealand) said work on the articles on State Responsibility was of a fundamental character similar to that of the Vienna Convention on the Law of Treaties and on unilateral acts. The principles contained in the existing draft had already had a major impact on practice in many areas. New Zealand had a real interest in seeing the work on State Responsibility completed. On the issue of Liability for Non-prohibited Acts, she said her country had a long term real interest. It believed that there was both an obligation to prevent transboundary harm and to minimise the risk of that harm. There was also an obligation to prevent harm, and to minimise it through the provision of better information, planning for safe methods, consultation, preparedness and environmental impact assessments. It would be a mistake to confine future work on the topic to the prevention aspects alone. The polluter should pay, she said. Prevention and remedies were essential to demonstrate that the Commission was a modern, responsive organization prepared to competently take up challenges of the next century.

FRANZ CEDE (Austria) said, on the topic of State responsibility, that certain controversial provisions should be removed from the draft articles on the subject because they would jeopardize their acceptability. In that revision, the Commission should avoid legal terms such as the notion of "fortuitous event", because the scope of that was not yet sufficiently determined by State practice. Given the fact that one of the major objectives of regulating State practice in the field of State responsibility was the avoidance of conflict between States, unclear legal terms tended to promote tensions and conflicts rather than avoid them.

On the issue of unilateral acts of States, he said the parameters of the topic were not clear. Because international relations to a great extent were the result of such acts, necessary conditions for peace required that such acts produce some legal effect. However, the work must be confined only to those which produced legal consequences, since otherwise no clear concept could emerge. The Commission should also refrain from dealing with unilateral acts of international organizations which differed to a great degree from the acts of States. The same was true for acts connected with treaties, since

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they were mostly governed by the law of treaties or a specific treaty regime.

MARK GRAY (Australia) said that, on the topic of diplomatic protection, it should be determined on what basis a national may claim the protection of his State. Traditionally, a State's exercise of diplomatic protection was discretionary and there was no individual right to such protection under domestic law. A different approach at the international level would require an analysis of the basis on which a national might claim an entitlement of right to protection. If it had become a human right, then it would not accrue to a non-natural legal person. Recognition of an individual right to demand diplomatic protection, as opposed to the right of the State to assert diplomatic protection, would require an analysis of States' views and practice.

He said the type of protection claimed by international organizations in relation to their agents, was different from that in the cases of legal or natural persons. The scope of protection traditionally afforded to agents of international organizations related to their ability to perform functions on the organizations' behalf. His delegation had reservations about the extent to which principles applying to diplomatic protection would translate to international organizations. The Commission should consider the relevance of privileges and immunities accorded to an international organization in the State in which the injury occurred.

HUSSAIN M. AL-BAHARNA (Bahrain), speaking on the question of State Responsibility, said his delegation did not favour the reopening of discussions by the Commission on the draft articles dealing with State crimes -- such as aggression, apartheid and genocide -- and the provisions on counter-measures by an injured State. He urged the Commission to continue its consideration of International Liability for Non-prohibited Acts, noting that the appropriateness of the topic justified its retention on the Commission's agenda.

On the topic of Diplomatic Protection, he said the position of international organizations should be considered with respect to their exercise of functional protection over their agents. The study should not include direct harm caused to the State or its property. On the question of Unilateral Acts of States, his delegation agreed with the conclusions of the Commission's working group that the study should not deal with matters already covered under State Responsibility, such as the consequences of internationally wrongful acts.

His delegation disagreed with the Commission's working group on the fixing by the State of the extent of various kinds of maritime baselines of territorial sea, contiguous zone, or economic zone. Such unilateral acts of States were considered to be part of the contemplated study on unilateral acts. Notwithstanding their unilateral character, he said, those acts had their legal basis in the 1982 Law of the Sea Convention, which provided for

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legislation or regulations to serve those purposes. His delegation doubted, therefore, whether it was advisable to encroach on the well defined legal regime of those latter acts of States.

SAMIR BURHAN (Egypt) speaking on the draft articles on nationality in relation to the succession of States, said they would continue the objective of abiding by the basic principles of universal human rights which allow all peoples the right to a nationality. The provision that nationality should be determined based on a person's appropriate connection to a country, however, was vague and a proper definition of "appropriate" was needed. Without such a clarification, States may be able to withhold nationality unjustly, creating new cases of statelessness. Also, while a State should deter statelessness, it should not have to grant its nationality to those persons who did not willingly want to acquire it, or to those who keep their residence in a third State.

On chapter V of the report, reservations to treaties, he said the Vienna regime represented a good compromise between allowing all reservations to treaties and prohibiting reservations in every case. The regime allowed a State to make a reservation if it was compatible with the object and purpose of the treaty. It also restricted what reservations were permissible while allowing the widest possible participation in treaties. The regime was established to be universally applied and most human rights treaties since the Geneva Convention referred to the Vienna regime as means of governing reservations.

MARTIN SMEJKAL (Czech Republic), speaking on Reservations to Treaties, said human rights bodies could only make comments on reservations, but it was up to States to draw the consequences of their reservations. It was appropriate for the Commission to invite the monitoring bodies to send their own comments on the issue. On the question of State responsibility, he said his delegation had dealt with the issue last year, and it intended to submit comments to the Commission on the concept of international crime and counter- measures. He understood the uncertainty of the Commission on the issue of liability which had not been clearly defined.

On the question of diplomatic protection, he agreed with the comments of the Commission's working group. He said consideration of functional responsibility of international organizations should be carried out on a parallel basis with examination of the issue of diplomatic protection. He observed that functional protection had in jurisprudence been constructed on the lines of diplomatic protection. Account should be taken of the concept of inherent rights of States.

The issue of Unilateral Acts of States invited troubling questions, he said, noting that it was being dealt with at a time when States were increasingly resorting to unilateral acts. His delegation would follow with

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particular interest the Commission's work on the subject. Unilateral acts of international organizations should be treated separately, he said.

GYORGY SZENASI (Hungary) said that "due to the turbulent changes of the last few years" the impact of State succession on the nationality of natural persons had been, and continued to be, "a very sensitive political and legal problem, especially in Central and Eastern Europe". For that reason, Hungary attached particular importance to the topic and welcomed the result of the Commission's work as a considerable step forward to prevent statelessness. It supported the Commission's approach in taking account of the legitimate rights and interests of both States and individuals.

On the issue of Reservations to Treaties, Hungary shared the Commission's view that the major rules established in the 1969 and 1986 Vienna Conventions were still applicable to all multilateral treaties, including the normative multilateral treaties as well. It took note, however, that new developments had necessitated the search for new approaches and new solutions to the question of reservations. That was particularly true of human rights treaties, he said. Hungary had consistently observed and applied human rights treaties and was cooperating with European regional organizations to ensure strict compliance with treaty obligations in the field of human rights, he stressed.

He commended the work done by the Commission on the examination of its own procedures and working methods.

OLEH HERASYMENKO (Ukraine) said the topic of unilateral acts of States was of particular interest for his country because Ukraine's non-nuclear status was the bright example among such acts, and its consequences for it and the world were significant.

On the topic of nationality, in relation to the succession of States, he said there was a concern that a State could use the institution of succession for the expansion of its jurisdiction over the territory of other States, by attributing the citizenship of the successor to persons residing in the territory of the predecessor State. The present draft articles did not prevent that possibility. A vivid example of that was a provision which required a successor State to attribute its nationality to persons who had their habitual residence in another State against the will of those persons if they would otherwise become stateless. Such a stipulation was fraught with dangerous consequences for the sovereignty of other States and only favoured misuse.

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