ASSEMBLY’S LEGAL COMMITTEE IS TOLD PROTECTION OF DIPLOMATS IS DISCRETIONARY, RATHER THAN OBLIGATION OF STATES

Press Release
GA/L/3159

ASSEMBLY’S LEGAL COMMITTEE IS TOLD PROTECTION OF DIPLOMATS IS DISCRETIONARY, RATHER THAN OBLIGATION OF STATES

Members Review Factors for Consideration in Draft Article Being Elaborated by International Law Commission

The Sixth Committee (Legal) resumed discussion this morning of draft articles on diplomatic protection and unilateral acts of States being elaborated by the International Law Commission, with most speakers stressing that provision of protection was discretionary and not a duty of States.

The representative of Norway, speaking for the Nordic countries on the subject of diplomatic protection, said it was a sovereign prerogative of the State of nationality of the person concerned, as a subject of international law. That prerogative provided for the discretionary right of the State. There was no obligation on the State to present a claim on behalf of an injured national. Diplomatic protection was not recognized as a human right and could not be enforced as such. A distinction must be made between human rights and diplomatic protection.

The representative of China said a sovereign State was entitled to protect the legitimate rights and interests of its nationals abroad. The right of diplomatic protection belonged to a State, and not to a national of the State.

The United Kingdom shared the predominant view that the exercise of diplomatic protection was a discretionary right of the State. Its representative also said the United Kingdom could not support the proposition that there should be a “duty” on States, at the level of international law, to exercise diplomatic protection in certain circumstances. The representative of Poland also said the use of diplomatic protection should be treated as discretionary, and not as an obligation. She welcomed the choice of diplomatic protection for codification, as well as the form of the draft articles adopted by the Commission.

The representative of Croatia, speaking on unilateral acts of States, said it would be inappropriate to simply transpose the rules of the 1969 Vienna Convention on the Law of Treaties to all categories of such acts. An important aspect of the rules which should be considered was whether a State was capable of dispensing with the rights and obligations that could affect those of third States without their consent.

Sixth Committee - 1a - Press Release GA/L/3159 19th Meeting (AM) 30 October 2000

Speaking for the Nordic countries on the issue of unilateral acts of States, the representative of Finland said delimitation of the topic and a definition of unilateral acts were of the utmost importance for its codification. Of special interest were those acts which produced legal effects in international law. Assessment of the legal effects of unilateral acts could not be made in isolation from the context and circumstances of the act.

Also making statements in the debate this morning were the representatives of Spain, Italy, United Republic of Tanzania, India, Bosnia and Herzegovina, Germany, Russian Federation, Republic of Korea and Bahrain.

At its last session, the International Law Commission considered the definition and scope of diplomatic protection, and the nature and conditions under which such protection might be exercised, in particular, the requirement of nationality and the modalities for the protection. On unilateral acts of States, it examined some preliminary issues, such as the relationship between the draft articles on unilateral acts and the 1969 Vienna Convention on the Law of Treaties and the question of estoppel (legal exclusion) and unilateral acts.

The Sixth Committee will meet again at 10 a.m. tomorrow, 31 October, to continue its discussion of diplomatic protection and unilateral acts of States.

Sixth Committee - 8 - Press Release GA/L/3159 19th Meeting (AM) 30 October 2000

Committee Work Programme

The Sixth Committee (Legal) met this morning to continue its debate on the elaboration of rules on Diplomatic Protection and on Unilateral Acts of States being undertaken by the International Law Commission. (For background information, see Press Release GA/L/3158 of 27 October).

The Chairman of the Commission, Chusei Yamada, last Friday introduced a section of the Commission’s report covering the two topics. At its last session, the Commission considered the first report of the Special Rapporteur dealing with issues of definition and scope of diplomatic protection, the nature and conditions under which such protection might be exercised, in particular, the requirement of nationality and the modalities for diplomatic protection. Those issues are addressed in articles 1 to 8 of the draft text. The Commission considered those articles out of the 9 introduced by the Special Rapporteur, according to its report.

On the subject of unilateral acts of States, the report said the Special Rapporteur for the topic examined some preliminary issues such as its relevance, the relationship between the draft articles on unilateral acts and the 1969 Vienna Convention on the Law of Treaties, as well as the question of estoppel (legal exclusion) and unilateral acts. Some Commission members pointed to the great diversity of unilateral acts present in the practice of States as a factor which rendered difficult a general exercise of codification and suggested a step by step approach to the topic dealing separately with each category.

Statements

LJERKA ALAJBERG (Croatia) said her country welcomed the progress made in the codification of unilateral acts of States. As discussion within the Commission and comments from some Governments had demonstrated, he said, a simple transposition of the rules of the 1969 Vienna Convention on the Law of Treaties to all categories of unilateral acts would be inappropriate.

The question of the invalidity of unilateral acts was one of the issues where the limits of the mutandis mutandis application of the Vienna rules were acceptable. Those rules were principally construed on the consensual character of the legal situation created by a treaty. Consequently the rules revolved around the defects in the expression of the true will of the parties. The same rules were, basically, applicable to unilateral acts and were appropriately included in the draft text.

Another important aspect of the rules which should be considered, he said, concerned the capability of a State to dispense with the rights and obligations that could affect the rights or duties of third States without their consent. In such a case, he said, a mere intention of that State would clearly not suffice to produce effects under international law and its unilateral act should be considered null and void in respect of the third States.

A practical example of that could be found in the case of dissolution of States followed by the emergence of equal successors. Pending the definite settlement of succession issues, he said, the right to dispose of property and archives of the previous State could be exercised only through joint action of all the successor States.

No successor State alone was vested with the power to acquire or to renounce any right or obligation that formed part of the succession. Any such unilateral act, undertaken without the consent of all the other successor States, should be regarded as invalid. The same applied to unilateral declarations claiming continuity with respect to the dissolved former State. The Croatian delegation suggested that the draft text should contain a provision prohibiting such unilateral acts.

AURELIO PEREZ GIRALDA (Spain) said the Commission had enough State practice to broach the question of codification of diplomatic protection. Spain shared the view on the usefulness of instituting diplomatic protection in its traditional understanding. Spain also agreed with the complementary nature of diplomatic protection in relation to the rest of the mechanisms for the protection of international human rights, while maintaining the current decentralized structure of international order.

He said he supported the decision to delete article 4 that sought to establish within certain limits a legal duty of the State of an injured person of its nationality to exercise diplomatic protection on that person’s behalf. The exercise of diplomatic protection must continue to be described as the right of a State.

He said he also agreed with the decision to delete article 2. The rejection of the threat or use of force as enshrined in the Charter was categorical and there should be no exceptions that might lead to doubt about that fundamental principle of international law. He said the proposal to progressively develop the content of article 8 on nationality was an interesting initiative, with understanding that the protection of expatriates or refugees with legal residence remained a discretionary right of the State and not of the individual.

Spain was aware of the difficulties presented by the treatment of the proposed articles, he said. Concerning the use of the Vienna Convention on Treaty Law as a reference for the regulation of unilateral acts, he called for a flexible approach. While not all standards of the Convention could be applied to the variety of unilateral acts, the regulation of those acts and those of treaties could proceed from the basic common tenets of the Convention. It was preferable during the first phase to limit scope and leave a study of the acts on treaties until later.

Referring to the use of the word “unequivocal” in article 1, he said each act with legal effects, be it unilateral or bilateral, must be expressed in clear terms to avoid conflicting interpretations. Concerning article 5, he said the draft should differentiate between the various case of nullibility, that is relative nullibility and absolute nullibility.

UMBERTO LEANZA (Italy) said the report of the Special Rapporteur was a starting point for focused discussion on diplomatic protection. In the area of human rights protection, it was a controversial topic. For protection of an individual, it must be established that the person concerned had suffered injury in which there was no protection under domestic law.

He said his delegation accepted the provision of article 1, paragraph 2 stating that diplomatic protection might extended to a non-national in exceptional circumstances. Those circumstances, spelled out in article 8, included stateless persons and refugees. It also favoured option 1, among the three proposed by the Commission, as a definition for diplomatic protection in article 1. Option 1 defined diplomatic protection as a procedure taken by a State in respect of another State involving diplomatic action or judicial proceedings in respect of an injury to a national caused by an internationally wrongful act attributable to the latter State. He said the formulation made it clear that the State was exercising its right.

The use of force to protect a national abroad should be limited to totally exceptional situations. That restriction should be set forth explicitly in the text. The discretionary authority of States in providing diplomatic protection reflected the current situation of customary law, and in principle should not be an obstacle of right under domestic law.

As for article 5, which dealt with requirement of nationality for diplomatic protection, he said there must be evaluation to determine the existence of a genuine link between an individual and the State. It must be taken in concert with good faith measures. In a globalizing world, he said it was not a good idea for residency to be demanded for the exercise of diplomatic protection.

On the topic of unilateral acts of States, he said a codification of the legal instrument was very necessary. Although his delegation agreed with the Special Rapporteur, who chose to refer to the 1969 Vienna Convention on the Law of Treaties, he believed that the differences between it and the proposed draft text should be borne in mind. He said the text should be divided into two parts, with the second containing provisions applicable to various kinds of unilateral acts.

Given the complexity of the topic, his Government reiterated its view that the Commission’s work should be limited to unilateral acts of States and not cover those of international organizations.

ALICE BURNETT (United Kingdom), speaking on diplomatic protection, said the Commission’s work on the topic should focus on the practical issues that might arise and be firmly rooted in State practice. The United Kingdom shared the view that questions on the use of force in diplomatic protection did not properly form part of it, and that further attention could usefully be given to clarifying the scope of the draft articles.

She said her delegation shared the predominant view that the exercise of diplomatic protection was a discretionary right of the State. It could not support the proposition made in draft article 4 that there should be a “duty” on States, at the level of international law, to exercise diplomatic protection in certain circumstances.

On the issue of unilateral acts of States, she expressed doubts as to whether the attempt to subject those acts to a single body of rules across the board was well-founded or even helpful. The Commission should take stock and give further consideration to the future of the whole topic, she said.

The United Kingdom valued work done by the Special Rapporteur on definitions with regard to reservations to treaties, she stated. It wondered whether the results so far would produce a guide of a practical nature. Her delegation would welcome such an outcome to work on the topic. He said the proposed guidelines were overly elaborate, and several seemed to be either redundant, possibly even with the risk of adding to the confusion that so often surrounded the topic. She wondered whether there was a place for guidelines on “interpretative declarations” and “conditional interpretative declarations” in a practical guide on reservations to treaties.

She said the changes recommended on the draft text on prevention of transboundary damage from hazardous activities improved it and added to its clarity. Noting that the Commission had entitled the new text, ”Convention on the Prevention of Significant Transboundary Harm”, she said some further thought might be given to finding a succinct way of capturing in the title the type of harm or risk which the instrument dealt with.

While the United Kingdom would be ready to concur with the Commission’s wish that the final instrument should take the form of a framework convention, if it met with general acceptance, its representative suggested some modest adaptation of the text to reflect that status. To be a meaningful framework, she said the instrument needed to stimulate the conclusion of more specific bilateral or regional agreements and/or national commitments, and to accommodate existing ones.

She said her delegation was disappointed that the revised text did not take greater account of the important and well-recognized principles of precautionary action, that the polluter should pay and that development should be sustainable. It hoped that scope would be found in the final draft explicitly to reflect those considerations, particularly principles which should underline the process of equitable balancing of interests. The United Kingdom welcomed the two new articles 16 and 17, on emergency preparedness and notification of an emergency, as useful additions to the draft.

JIAN GUAN (China) said diplomatic protection involved a series of complex theoretical and practical questions and had a bearing on inter-State relations. Diplomatic protection had not become obsolete as a result of enhanced efforts by the international community aimed at protecting human rights. He supported the view that so long as the State remained the dominant actor in international relations, diplomatic protection would continue to be the most important remedy for protecting the rights of aliens. A sovereign State was entitled to protect the legitimate rights and interests of its nationals abroad. The right of diplomatic protection belonged to a State and not to a national of the State. To prevent power politics and abuse of diplomatic protection in inter-State relations, it was necessary to limit the right of diplomatic protection, especially to prohibit the use or threat of force in exercising such a right.

Specifically on the exercise of diplomatic protection on behalf of a person who had two or more nationalities or was stateless, he believed each of the States whose nationality the person possessed, could put forward a claim on his behalf. However, unless otherwise agreed, a State could not put forward a claim against a State whose nationality such person also possessed. He added that it might seem permissible if the Government of the State where the stateless person was a lawful resident was willing to afford diplomatic protection. He expressed the hope that, after finishing the draft articles on State responsibility, it would give priority to the topic of diplomatic protection.

TUVAKO N. MANONGI (United Republic of Tanzania) recalled that the representative of South Africa, when speaking on behalf of the Southern African Development Community (SADC), had emphasized that there was no duty on the State of residence to exercise diplomatic protection over refugees, as that might deter States from providing asylum. As a country that hosted close to a million refugees, his country shared the caution the Commission chose in its approach to the subject of diplomatic protection. Caution was especially important because of the inherent tension in any effort to broaden the nature and scope of diplomatic protection. The best premise lay in the recognition that diplomatic protection was a right that only a State could exercise at its own discretion.

The option of the application of functional protection by international organizations in respect of refugees offered an attractive solution to the potential disincentive that the current draft (article 8) might pose to States hosting large refugee populations. The United Republic of Tanzania was concerned that the formulation of article 8 established a basis for a request or claim for diplomatic protection based on habitual residence, as opposed to the traditional basis, namely, nationality. As a country that hosted refugees, he said, that could potentially add an immeasurable burden to the heavy responsibility his country already bore. The functional concept, by which international organizations had granted protection to their employees, should be extended to include refugees.

HOLGER ROTKIRCH (Finland), speaking for the Nordic countries on the issue of unilateral acts of States, said delimitation of the topic and a definition of unilateral acts were of the utmost importance for the success of the undertaking. Of special interest for a project of codification were those acts which produced legal effects in international law. He expressed doubt as to whether the intention of the author State should be seen as the sole or fundamental criterion for determining such an act. The effects of acquiescence in some situations could be raised in that context, as could the concept of estoppel, which constituted one of the possible consequences of unilateral acts. Assessment of the legal effects of unilateral acts could not be made in isolation from the context and circumstances of the act.

Concerning the Commission’s request for views on directions for future work, he said he found the suggested approach on the kind of unilateral acts with which the topic should be concerned as somewhat reductive. He welcomed the suggestion to structure the draft around a distinction between general rules, which were applicable to all unilateral acts, and specific rules applicable to individual categories of unilateral acts. He found merit in the suggestion that the study on specific categories would be initiated by concentrating first on those acts which created obligations for author States.

ANANT G. GEETE (India) said his delegation did not believe that it was either necessary or desirable for the very basis and limitation of the instrument of diplomatic protection to be changed to serve the broader interest of the human rights of an individual. The Commission’s work in that area should, therefore, be limited. The problems concerning protection of human rights treated in the category of erga omnes obligations should not form part of the proper subject of diplomatic protection. The right of the State to intervene was subject to the general law of State responsibility.

He said India endorsed the view that diplomatic protection and the right to use force in defence of the rights of nationals were incompatible with each other. Any use of force would have to be judged against the general prohibition contained in article 2 (4) of the United Nations Charter. India supported the Commission’s decision to delete the provisions of the draft text on the subject. His delegation believed that the right to diplomatic protection -– even when it was essentially at the discretion of a State -– should serve the interest of nationals as far as possible. The concern of the right of an individual, however, should not be stretched beyond a point to make it obligatory for the State of nationality.

On the theory of effective nationality and genuine link with a State, he said he agreed that the State’s right to espouse the claims of its national should not be open to question, as long as the nationality granted had a proper basis. Neither the 1951 Convention on Refugees nor the 1961 Convention on Reduction of Statelessness required residency for a specified period or effective link for the State providing refuge. It was difficult to envisage, he said, the circumstances under which such protection could be exercised on behalf of refugees. His delegation was opposed to the extension of the principle of obligating the State of habitual residence of a refugee to espouse the claims involved against the State of nationality. That could create excessive and unacceptable burden to the States.

On the question of unilateral acts of States, he said the important point the Commission should consider was whether any uniform or common features could be identified from different and varied types of unilateral acts that occurred in State practice, to determine the nature of international obligation involved.

India supported the position taken by the Special Rapporteur, that the provisions of the 1969 Vienna Convention on the Law of Treaties could provide useful guidance in the formulation of the legal regime governing unilateral acts. It should be understood that it was not possible to simply transpose those articles into the present exercise.

HANS WILHELM LONGVA (Norway), speaking for the Nordic countries on the subject of diplomatic protection, said diplomatic protection had not become obsolete because of the establishment of various dispute settlements to which individuals had been given access. Concerning draft articles on the matter, the Nordic countries believed it was important to focus on practical needs, rather than theoretical debates; they would like to see a guide to practitioners as the end result.

The issue of the use of force in the exercise of diplomatic protection was highly controversial and could not be part of the topic, he said. The question was exhaustively regulated in the Charter and had no place in a future legal instrument on diplomatic protection. Diplomatic protection was a sovereign prerogative of the State of nationality of the person concerned, as a subject of international law. That prerogative provided for the discretionary right of the State. There was no obligation on the State to present a claim on behalf of an injured national. Diplomatic protection was not recognized as a human right and could not be enforced as such. A distinction must be made between human rights and diplomatic protection.

DJORDJE KOCETKOV (Bosnia and Herzegovina) said diplomatic protection was important for the protection of persons in international relations. He agreed with the decision to delete draft article 2 on the rejection of the threat or use of force in the exercise of diplomatic protection. The use of force was not a part of the topic, and its introduction would be unacceptable. He also supported the deletion of draft article 4.

The proposed provision that the State of an injured person had a legal duty to exercise diplomatic protection on behalf of the injured person upon request was not in conformity with the traditional doctrine that the State had an exclusive right to decide on the exercise of diplomatic protection on behalf of its nationals.

He said that while it was clear that diplomatic protection was closely linked to nationality, the issue of the acquisition of nationality did not fall within the scope of the subject. His country was particularly interested in dual and multiple nationality. He was aware that many States did not recognize multiple nationality, but it was a fact of international life. In light of the consequences of mass migrations, the process of globalization and tendencies towards open borders, the position of persons with dual or multiple nationality, in respect to diplomatic protection, should be very carefully further elaborated. Persons with dual or multiple nationality should not be subjected to any disadvantages with respect to diplomatic protection.

ANNA WYROZUMSKA (Poland) reiterated her delegation’s support for the choice of the topic diplomatic protection, as well as the form of the draft articles adopted by the Commission, she said. There was a clear need for the codification and progressive development of a legal instrument on diplomatic protection as well as for collecting information on State practice in that area. The International Law Commission should consider further the important question of the scope of the draft articles.

Her delegation favoured the first of three options suggested for article 1 on the scope of the draft. This referred to resort to diplomatic action or judicial proceedings to resolve a wrongful act. It supported the Commission’s rejection of an initial proposal by the Special Rapporteur to recognize a possibility of the resort to use of force for diplomatic protection. That action could not be justified even if it could be characterized as self-defence.

She said the use of diplomatic protection on behalf of a national injured by an internationally wrongful act should be treated as discretionary and not as an obligation. The deletion of the original draft article suggesting a right to diplomatic protection appeared to be fully justified.

She then turned to a series of questions raised by the Commission requiring a response by governments. The first dealt with the possibility of the exercise of diplomatic protection on behalf of a national who had acquired nationality by birth, descent or bona fide naturalization when there was no effective link between the national and the State of his or her nationality. She said her delegation felt the answer should generally be a positive one, especially in a case when such a person did not possess a dual nationality. Any attempt to deprive the person of diplomatic protection was unjustified and could render him or her stateless.

Although multiple nationality was tolerated by States now more than previously, there was still a wide gap in practice. Her delegation favoured extension of protection to a person with dual nationality against a third State without proving an effective link between that State and the individual. It also supported diplomatic protection for a stateless person or a refugee who had lawful and habitual residence against another State.

The real value of the draft text should not be diminished in its further elaboration, she stated.

REINHARD HILGER (Germany) said diplomatic protection ought to be seen as a procedure for the peaceful settlement of disputes between States; it should not serve as a legitimate ground for the use of force in international relations. While there might be a need for a discussion of the issue as it arose from the reality of the world, Germany had strong doubts as to whether diplomatic protection was the appropriate context for such a discussion. It was the right of States to provide diplomatic protection to their citizens abroad. There should not be a blurring of the distinction between internal law governing the relationship between individuals and their respective States, and international law governing the relationship between States or other subjects of international law.

Whether a State should provide diplomatic protection clearly fell under the first category and should be left to internal law and the State’s discretion, he said. It was clearly not a violation of human rights if a State decided not to provide diplomatic protection.

Noting that the world had become much more complex with regard to nationality because of increased international migration, he said Germany agreed in principle with the solutions found, in particular, with the extension and development of the principle of effective or dominant nationality. However, an effective link must not be a condition for diplomatic protection especially in cases where an individual possessed only one nationality.

He noted that Germany had replied to the Commission’s questionnaire on unilateral acts of States. He questioned whether the topic was suitable for codification given the enormous diversity of unilateral acts in State practice.

ILYA ROGACHEV (Russian Federation) recommended that the Special Rapporteur should take a conservative approach in the elaboration of the draft on diplomatic protection to make it acceptable to all. He noted that diplomatic protection was provided only to nationals and through diplomatic and consular means. The key element in the drafting was the definition of diplomatic protection. It would be appropriate to the term “unlawful act” instead of “wrongful act” in draft article 1, he said. The article should also state clearly that diplomatic and consular officials provided protection on behalf of the State.

The host State of refugees and stateless persons had discretionary right to provide protection. Current practice was still based on the fact that stateless persons did not enjoy diplomatic protection. There were difficulties involved, particularly, the additional burden placed on States that received refugees. Generally, he said a State had the right to protect its nationals. He said the draft text gave too much attention to nationality issues.

He stressed that a conservative approach should be taken to the codification of the norms of diplomatic protection and the current exercise should be the beginning. Account should be taken of its great import, he added.

CHOUNG IL CHEE (Republic of Korea), speaking first on State responsibility, said draft article 22 on self-defence was acceptable. However, the debate about the inherent right of self-defence as against the Charter requirement, that an armed attack must precede the invocation of self-defence, had been going on in academic circles for some time. His Government had already suggested that the requirement of an armed attack as a condition precedent to the right of self-defence be relaxed and due recognition be given to the possibility of invoking the right of self-defence by States under current rules of customary international law.

Concerning article 37, he said the omission of moral damage as a part of compensation to the injured person or state would be inconsistent with international jurisprudence. He welcomed the inclusion of erga omnes obligation in article 41, saying it was refreshing to see the concept formalized in codified form, giving a recognition to the doctrine by such an eminent body as the International Law Commission. He questioned the fairness of article 53 for the burden it placed on the injured State with “an obligation to call on” and an obligation to “offer to negotiate with the wrongdoing State. The burden should be the other way around.

On diplomatic protection, he said the concept should not include the use of force as a way of settling international disputes. He endorsed the approach that the right of diplomatic protection was a discretionary right of States. Article 4 tread on that right, he said; he was not sure that States were willing to accept that extending diplomatic protection to nationals abroad became a legal duty, rather than a discretionary right. On unilateral acts of States, he said the doctrine of estoppel had become a part of international law through case law and deserved to be worked on by the International Law Commission.

AL-BAHARNA (Bahrain), speaking on State responsibility, welcomed the achievements of the Commission after its long journey studying the topic. He expressed the hope that the Commission was nearing the end of this journey. The revised text of the draft articles looked tidier, more consistent and more comprehensive than any former text submitted by the Commission.

Should the Commission finally decide to adopt the draft articles in the form of a convention, the option preferred by his country, then the adoption of a compulsory dispute settlement regime would appear to be necessary. He said certain principles on countermeasures required further consideration, in light of the views expressed by States. While part II and part II bis were very much related to one another, they should still be separated into different parts or sections. He suggested that they could be separated into a section on Content

on International Responsibility and another on Implementation of State Responsibility.

He said he supported the decision to reformulate the articles from the perspective of the State incurring responsibility, rather than that of the injured State. Although the consequences of serious breaches in proposed article 42 appeared to be stronger, they nevertheless stopped short of providing satisfactory damages or reparation arising from consequences of such serious breaches as aggression or genocide. There might be a need for further improvements to the provisions, in particular, a need for reference to Chapter VII of the Charter.

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