DRAFT RULES ON DIPLOMATIC PROTECTION SHOULD BE MADE MORE ACCEPTABLE TO STATES, GENERAL ASSEMBLY’S LEGAL COMMITTEE IS TOLD

Press Release
GA/L/3160

DRAFT RULES ON DIPLOMATIC PROTECTION SHOULD BE MADE MORE ACCEPTABLE TO STATES, GENERAL ASSEMBLY’S LEGAL COMMITTEE IS TOLD

Debate Continues on Law Commission Efforts to Elaborate Text

The International Law Commission must concentrate on practical suggestions that would make its draft rules on diplomatic protection more functional and acceptable to States, the representative of Greece told the Sixth Committee (Legal) this morning, as it continued its discussion of the Commission’s efforts to elaborate the instrument.

The representative said, States would thus be helped to use the instrument as an inter-State mechanism, to peacefully resolve disputes about the treatment of aliens, he said. Greece was against any approach that tried to create a legal basis for forcible intervention in the context of diplomatic protection.

The representative of Argentina said diplomatic protection was not only available for States to protect nationals abroad, but it was also linked to mechanisms for protecting human rights and investments. A balance must be found between two extreme ideas -– on the one hand, that recent developments in international law had rendered obsolete the notion of diplomatic protection, and on the other, that diplomatic protection was the most effective means to protect individual rights.

The representative of Israel said the efforts of the International Law Commission should be concentrated initially on those unilateral acts which created legal obligations for the author State, with consideration of such other categories as protest, waiver and recognition.

Also making statements this morning were the representatives of the Czech Republic, Slovenia, Mexico, Bahrain, Venezuela, Iran and Iraq.

The Sixth Committee will meet again at 10 a.m.tomorrow, 1 November to conclude its discussion of diplomatic protection and unilateral acts of States.

Sixth Committee - 2 - Press Release GA/L/3160 20th Meeting (AM) 31 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. The Committee has before it a report of the Commission, in which the two questions are dealt with. (For details see Press Release GA/L/3158 27 October 2000.

Statements

TAL BECKER (Israel) said diplomatic protection involved a delicate balance between the protection of individuals at the international level and the interests of the State. He strongly endorsed the general position, which was supported by customary law, whereby the State had full discretion in the exercise of diplomatic protection. The determination of whether to exercise that right involved, among other things, the evaluation of delicate matters related to foreign policy and overriding national interests. It was important that a State’s discretion in that field remained unfettered.

In cases where there was no effective link between the national and the State, he supported the view that a State might adopt the claim of a bona fide national vis-à-vis a third State, without having to show an effective link with that national. While the grant of nationality was a matter to be decided by domestic law and should not, in principle, be subjected to international scrutiny, it might be necessary to consider limitations to the exercise of diplomatic protection in order to prevent an abuse of that right, or in cases where the nationality had been acquired in bad faith or by improper means.

He supported the possibility raised in article 8 regarding the exercise of diplomatic protection on behalf of stateless persons or refugees, as it could be a means of enhancing humanitarian protection for such persons.

Turning to unilateral acts, he said his delegation had previously expressed concern that the attempt to conceptualize and provide strict legal definitions for those acts would run counter to actual State practice in the field. He welcomed the new approach regarding the need to study different categories of unilateral acts, saying it could lead to a more profound understanding of the topic. He supported concentrating initially on those acts which created legal obligations for the author State and, thereafter, considering such other categories as protest, waiver and recognition.

After addressing specific wordings in the draft articles, he urged the Committee to examine additional aspects which were not discussed in the reports, such as the duration of the validity of unilateral acts, the ability to revoke a unilateral act and the validity of conflicting unilateral acts made by different authorized representatives of a State.

IVO JANDA (Czech Republic) said he appreciated the fact that the Special Rapporteur had had the courage to go beyond traditional and conservative approaches in the field, and instead of a mere survey of well-established rules, he had set out on a journey of examining new trends, which corresponded with modern development of international law. The first set of draft articles offered many provoking ideas, which could serve as a good basis for other deliberations on the topic.

Bearing in mind the significance of the law of human rights in contemporary international relations, he said, diplomatic protection deserved and needed to be dealt with from that point of view. On the other hand, systemic relations between diplomatic protection and human rights should not be exaggerated to the point of including the institution of diplomatic protection as part of human rights law. The idea in article 4 of departing from the traditional concept of diplomatic protection as a sovereign prerogative of the state exercised in its discretion had merits and deserved further consideration.

However, any conclusions must be based on State practice and not only on the texts of domestic legislation. Article 6 on the principle of nationality of claims presented serious legal problems. He said he supported the ideas expressed in article 8. Treatment of stateless persons and refugees as the equal of nationals was shielded by contemporary international law. He also welcomed the Commission’s decision not to deal with the use of force in connection with diplomatic protection.

ANDREJ GRASSELLI (Slovenia) said the development of contemporary human rights had no doubt affected the traditional notion of diplomatic protection; an examination of the relation between human rights protection mechanisms and diplomatic protection could not be avoided. Bearing in mind the historical abuse of force by powerful States on the one side, and modern obligation erga omnes concerning universally accepted human rights standards on the other, he said, the issue of force should not be dealt with in the framework of diplomatic protection. That did not mean, however, that the issue should not be dealt with in some other framework. The application of the principle of effective link of nationality should not go beyond the limits at which the legislation of one State encroached on the sovereignty of another State. As to the future work of the Commission on the topic, he would like to see priority given to the protection of corporations and continuous nationality.

Turning to unilateral acts of States, he said codification would clarify and organize the general legal principles and customary rules governing those acts. It was too early to structure the draft articles from the viewpoint of a distinction between general rules, which might be applicable to all unilateral acts, and specific rules applicable to individual categories of unilateral acts.

Concerning reservations to treaties, he said the text of the draft guidelines would be useful to States, as reservations were widely employed in State practice. Procedural matters, consideration of which had been deferred due to lack of time, would be of further help for the practice. As to the future work of the Commission, he suggested the topics of responsibility of international organizations, expulsion of aliens and shared natural resources of States.

ROBERTO LAVALLE-VALDES (Guatemala) said his delegation did not agree with the scepticism expressed by some that it was not feasible for general norms applicable to unilateral acts to be developed. He proposed a number of changes to the wording of the draft articles, referred to the inclusion of new articles stipulating that they would not apply to dependent unilateral acts.

He said he shared the concerns expressed by a majority of International Law Commission members about a provision on unilateral acts that conflicted with a norm of fundamental importance to the domestic law of the State formulating it. On the relationship of the draft articles and the 1969 Vienna Convention on the Law of Treaties, he said there was no doubt that the latter could be adapted, although it could be difficult in many cases.

He referred to the declaration made by Egypt over the Suez Canal in the 1950s as an example of a unilateral act of a State.

BERNARDO SEPULVEDA (Mexico), addressing first the topic of State responsibility, said there had been substantial improvements in the structure and scope of the draft articles in the past four years. Given the importance of the issue, it was essential to move forward steadily and cautiously so as to adopt a regime that could be universally supported. He said Mexico was seriously concerned that the matter of settlement of disputes had been put aside. To leave such an important matter pending was also to leave the integrity of the text pending. The application of State responsibility would be jeopardized without a mechanism for the settlement of disputes.

He said the revised draft articles offered an imaginative way of solving the dispute over international crimes. The new article 54 dealt with the most sensitive issue, namely that countermeasures could be taken by States that were not the injured State. That provision opened the door to collective measures being taken in the case of serious breaches of obligations owed to the international community as a whole. Determining that a serious breach had occurred was, in principle, covered by Chapter VII of the Charter, and it was not proper to introduce rules in any regime on State responsibility that would run counter to the Charter. The provisions left it up to any State to determine a serious breach. The regime was too broad and not compatible with the institution created in 1945. Also, de-linking countermeasures from dispute settlements made them even more arbitrary and subjective.

He said Mexico supported the adoption of the draft articles in the form of a convention, since only a binding instrument could guarantee and provide the necessary certainty for injured States to receive reparations for damages caused by internationally wrongful acts.

Turning to diplomatic protection, he said there was abundant State practice, and it was possible quickly to codify international norms and principles applicable to the activities of the State in that field. The work of the International Law Commission should be essentially a codification project. While there existed elements of progressive development of international law, the draft to be accepted should reflect the systematic international practice.

He said the exercise of diplomatic protection required certain conditions: the existence of a wrongful act; an injury to a foreigner or his property linked to the wrongful act; a denial of justice to the injured national; a link of effective nationality; the State of the injured person, and not the individual, must determine whether it was advisable and desirable to exercise the right; and, protection could be provided only after other remedies had been exhausted. In no case could the exercise of diplomatic protection involve the use of force. The Charter and international case law were perfectly clear and irrefutable on the matter. Diplomatic protection was a broad concept and must not be confined to human rights.

FERNANDEZ VALONI (Argentina) said he agreed with the move to codify rules on diplomatic protection, and stressed the idea of a discretionary right of States. Diplomatic protection was not only available for States to protect nationals abroad, he said. It was also linked to mechanisms for protecting human rights and for protecting investments. A balance must be found between two extreme ideas -— the idea that recent developments in international law had rendered obsolete the notion of diplomatic protection, on the one hand, and on the other that diplomatic protection was the most effective means to protect individual rights. Both were oversimplifications. The international community must recognize the advantages and disadvantages of each. They were of a complementary nature and not mutually exclusive.

He expressed concern about draft article 2, saying the renunciation of the use of force in the exercise of the right of diplomatic protection would be a step backward with respect to a centuries-old norm. Referring to protection for legal entities, he said the draft articles must recognize and take account of the possibility that States could claim remedies for companies abroad that had suffered damages. Proof of a link between an individual and a State was a procedural question. A State had to prove the existence of nationality for a claim to be valid. It was much better for a State asserting a claim to demonstrate that the link was clear.

On the matter of unilateral acts of States, he said he agreed with the idea that if a certain type of unilateral act was already regulated by a conventional or customary regime, it should be beyond the scope of the draft articles. As to the attempt to distinguish between general norms, that could be applied to all acts, and specific norms, that could be applied to categories of unilateral acts, he said the Commission could proceed first with specific categories and then move on to extracting some norms that could be applied generally. It was extremely important for the Commission to conduct a detailed study of the abundant State practice in the area.

HUSAIN M. AL BAHARNA (Bahrain) said it would not be advisable to follow the 1969 Vienna Convention on the Law of Treaties too closely in the elaboration of the articles on unilateral acts of States. There were essential differences between treaty law and the law pertaining to unilateral acts, as defined in the report of the Special Rapporteur. There was no parallelism between the two acts, he said. He agreed with the Special Rapporteur that estoppel (principle of preclusion) had no relationship with unilateral acts. The term “autonomy” was an appropriate and an important feature of unilateral acts. He said the reasons given by the Special Rapporteur on his use of the word “acts” as being broader and less restrictive were unconvincing. A unilateral act could not be used in a vacuum. Commenting on the new draft article on persons authorized to formulate unilateral acts on behalf of a State, he said he doubted whether a head of a diplomatic mission could undertake such an important task, which might, by analogy, be equivalent to signing a treaty on behalf of his or her State without specific instructions in the form of full powers.

He said the new draft article on invalidity of unilateral acts appeared to be questionable. The Commission was, therefore, justified in referring the provisions of article 5, dealing with that question, to its working group.

MARTHA DI FELICE (Venezuela), speaking first on diplomatic protection, said the subject was sensitive and complex, both in political and legal terms. Although diplomatic protection and human rights were related, there must be a balance, so that any examination of the topic of diplomatic protection did not become fully absorbed into the issue of human rights. Diplomatic protection was more than a set of measures, it was a long and complicated process, and a study of it should be harmonized with the rules on State responsibility.

There was need for an explicit reference prohibiting the use of force in the exercise of diplomatic protection, she said. The use of force was contrary to the evolution in international relations and in international law itself. The exercise of the right of diplomatic protection was a right that belonged to a State, and not an individual. The effective link between a State and a national was fundamental, although the principle was not always applied in the same way in all cases.

Turning to unilateral acts, she said those acts could be codified and progressively developed. The report of the Special Rapporteur had introduced new aspects, with the aim of helping to reconcile positions. Despite difficulties, progress could be made if States demonstrated the political will to do so. It was not possible to elaborate rules that could apply to the enormous variety of unilateral acts. Nevertheless, despite that diversity, there were some common aspects among the acts, which could be the subject of common rules applicable to all acts. The Commission should first focus on rules common to all and leave specific rules for each category of acts until later.

SEYED HOSSEIN ENAYAT (Iran) said the concept of diplomatic protection should be understood within the meaning it had in international law and the practice of States in the field. While he shared the human rights spirit of the report, diplomatic protection as a means of preventing abuses against persons or properties was a mechanism that should not be confused with human rights protection machinery. The right to take action belonged to the State.

The scope of the draft articles should be based on the principle of the sovereign equality of States and their obligation to protect the rights and property of their nationals. The functional protection exercised by international organizations on behalf of their staff was a separate item that should be discussed in another forum.

He said he supported a provision prohibiting the use of force as a means of diplomatic protection. Iran had difficulty accepting article 4, as it was in conflict with the discretionary exercise of diplomatic protection and with customary international law. He believed the requirement of the exhaustion of local remedies should be mentioned in article 5.

Referring to article 6, he said customary international law recognized the rule of the “non-opposability’ of the diplomatic protection against a State in respect of its own nationals. Concerning article 8 on diplomatic protection of the State of residence on behalf of refugees and stateless persons, he said the issue had not been recognized by the customary international law.

MOHAMMED AL DOURI (Iraq) said the use of armed force as a means of diplomatic protection contradicted international law, particularly the United Nations Charter. He expressed support for the view that human rights legislation should be strengthened in international law. The use of force in defence of human rights ran counter to the Charter, he said. Nationality must be an important criterion for diplomatic protection. He welcomed the work of the International Law Commission’s work on provisions relating to refugees.

Addressing the issue of reservations to treaties, he said existing international law on the subject, had made important contributions, enabling a growing number of States to accede to legal instruments. He referred, in particular, to the 1969 Vienna Convention on the Law of Treaties helping States making reservations; the best way to ensure that the Commission’s efforts to elaborate rules on Reservations to Treaties was to take account of the interests of all States. Consensus should be sought if that was impossible, he said.

On unilateral acts of States, he said there were numerous problems. There should be a framework convention. He observed that some countries promulgated domestic law on unilateral acts that had international implications.

His country had been subjected to embargoes and other sanctions, which had no legal basis, by two permanent members of the Security Council. Those measures represented flagrant violation of international law and were example of unilateral acts which were still going on.

MARIA TELALIAN (Greece) said that, while diplomatic protection could be seen as a tool for the protection of human rights, the very distinct character of the institution should not be overlooked, namely, that it was designed to protect only a State’s own nationals, and its exercise depended on that State’s free will. Although there was rich case law and State practice, she said, the topic remained highly controversial. Work should concentrate on practical suggestions, which would render the institution more functional and more acceptable to States as an inter-State mechanism for the peaceful solution of disputes concerning the treatment of aliens.

Specifically on the draft articles, she said Greece was against any approach which tried to create a legal basis for forcible intervention in the context of diplomatic protection. She suggested the removal of any ambiguity from the scope of draft article 1, concerning the prohibition of the use of

force in the exercise of diplomatic protection. She agreed that diplomatic protection could be triggered only by an internationally wrongful act; it also depended, according to customary law, on the exhaustion of local remedies and a nationality link between the claimant State and the injured individual.

The nationality link raised problems in the case of dual or multiple nationality. She, therefore, agreed with the approach in article 6 that incorporated the principle of effective and dominant nationality, and thus set aside the principle of non-responsibility.

Turning to unilateral acts, she agreed with the suggestion to delimit the scope of the topic, and to concentrate on those acts which produced legal effects. She said a definition of unilateral acts was an extremely useful exercise, the intention of the author State should not be the only criterion for determining the binding effect of a unilateral act.

* *** *