Fifty-seventh General Assembly

Sixth Committee

21^st Meeting (AM)

RECENT WORK OF WORLD COURT SHOWS CONCERN FOR ALL AREAS

OF LAW AND JUSTICE, PRESIDENT TELLS LEGAL COMMITTEE

Jurisprudence on Human Rights, Environment Cited; Debate

Continues on Recommendations of International Law Commission

The jurisprudence of the International Court of Justice in the fields of human rights and environmental law showed that it could address all areas of law and justice, the President of the Court, Judge Gilbert Guillaume, told the Sixth Committee (Legal) this morning.

Addressing the Committee for the third successive year, Judge Guillaume observed that the progress that law and justice had made over the past century corresponded to that in society as a whole and in international relations.  The International Court of Justice retained an essential role, he said, and it was the Court alone that could address all areas of law and accord them their proper place.  The Sixth Committee should rest assured that the Court would pursue its efforts in that regard with the renewed confidence of States, he said.

Continuing its review of the report of the International Law Commission, the Sixth Committee heard varied views on the provisions of the draft articles relating to the exhaustion of local remedies and selection of topics for consideration.

Mexico’s representative called for a review of the Commission’s statute to make sure its provisions were still applicable.  On the issue of diplomatic protection, he said his country was moving towards a similar system of protection for its nationals abroad.

The representative of the Czech Republic said exhaustion of the local remedies rule was a generally accepted precondition for exercising diplomatic protection.

The representative of the Netherlands said the Special Rapporteur had made a proposal that breathed new life into the clause relating to waivers to diplomatic protection.  While it was true that an individual did not have a right to diplomatic protection, under international law the person had every right to seek that protection from the State of nationality.

Also speaking this morning on the Commission’s report were the representatives of Japan, Austria, Morocco, Iran, India, Italy and Israel.

The International Law Commission was established by the General Assembly in 1947 to promote the progressive development of international law and its codification.  The Commission, which meets annually, is composed of 34 members who are elected by the General Assembly for five-year terms and who serve in their individual capacity, not as representatives of their Governments.  Most of the Commission's work involves the preparation of drafts on topics of international law, chosen by the Commission and others referred to it by the General Assembly or the Economic and Social Council.

The Committee will meet again at 10 a.m. on Thursday, 31 October, to continue its consideration of the International Law Commission’s report.

      Background

The Sixth Committee (Legal) met this morning to continue its debate on the report of the International Law Commission (ILC) on the work of its fifty-fourth session (document A/57/10 and Corr.1) with particular attention to its introductory chapters as well as the topic, “diplomatic protection”.

Also this morning, the Committee was to hear the introduction of a draft resolution on a report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization.

The ILC, at its session, which took place in Geneva, considered the remaining parts of the second report of its Special Rapporteur on diplomatic protection relating to the exhaustion of local remedies rule, namely articles 12 and 13.  It also considered his third report covering draft articles 14 to 16, dealing with the exceptions to that rule, the question of the burden of proof and the so-called “Calvo” clause, respectively.  (“Calvo” clause is a contractual provision by which an alien waives his/her right to invoke diplomatic immunity.)

The Commission also undertook a general discussion, inter alia, on the scope of the study and held several open-ended informal consultations on the issue of the diplomatic protection of crews and that of corporations and shareholders.  It further adopted articles 1 to 7 on the recommendations of its drafting committee. It also referred to that committee draft articles 14 (a), (b), (c), (d), and (e), concerning futility, waiver and estoppel, voluntary link, territorial connection and undue delay, respectively.

(For more details of the Commission’s report, see Press Release GA/L/3220 of 28 October 2002.)

By the draft resolution on the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (document A/C.6/57/L.19), the General Assembly would decide that the Special Committee would hold its next session from 7 to 17 April 2003.  It would ask the Special Committee, at that session, to continue considering proposals for the maintenance of peace and security and also, on a priority basis, the question of implementing the provisions of the Charter related to assisting third States affected by the application of sanctions.  Further, the Committee would be requested to keep the question of the peaceful settlement of disputes on its agenda and to continue considering proposals concerning the Trusteeship Council.  Finally, it would be asked to consider the improvement of its own working methods as a priority. 

Statements on the ILC Report

TOMOAKI ISHIGAKI (Japan) said the seven draft articles adopted on diplomatic protection were well balanced.  They reflected customary international law while also incorporating progressive developments.  They also highlighted the basic principle of diplomatic protection:  that “a State exercises diplomatic protection and the State of nationality is entitled to exercise diplomatic protection”.  Two aspects were taken into account.  One was the overall concept of diplomatic protection as a State’s right.  The other was the consideration of how to ensure an effective remedy for citizens whose rights were infringed by a State.

With the growing awareness of human rights and the increased numbers of international agreements in the area, he said, some had argued that the discretionary nature of the diplomatic protection exercised by States was restricted for the protection of human rights.  That view was reflected in the discussion of protecting stateless persons and refugees, as well as the issue of continuous nationality.  Article 7 had struck an appropriate balance by providing an exception to the principle of State of nationality for stateless persons and refugees.  The increased call for a State to protect its citizens overseas should not be seen as a change in the regime of diplomatic protection itself but as an enhancement of the primary rules for human rights protection.

Further, he said, the Commission had done well in deciding not to refer some of the draft articles on issues such as burden of proof or denial of justice to the Drafting Committee.  While those issues had implications for diplomatic protection, the Commission had been prudent and practical to limit its scope of study to bring the discussion to a timely conclusion.

Two issues were of particular interest, he continued.  One was the diplomatic protection of crews.  In the case of a crew member being injured by an internationally wrongful act on board a ship or aircraft of the flag State or the State of registry, the State could bring a claim directly against a wrongdoing State.  There was no need to resort to diplomatic protection in such an instance.  However, the question of whether protection of the crew of non-nationals was adequately covered by the Law of the Sea Convention was another matter and should be decided on its own merits.  On the issue of diplomatic protection of corporations and shareholders, it should be considered that in the era of globalization vast numbers of people invested in companies incorporated outside their State of nationality.  They took risks in such investments.  It was natural, therefore, to give the State of incorporation the right to protect its company.  While there could be cases where the State of nationality of the shareholders could exercise protection, such exceptions must be clearly stipulated.  

HANS WINKLER (Austria) said the Special Rapporteur on diplomatic protection had raised certain fundamental questions about the scope of his work.  In particular he had shown a reluctance to tackle problems which in his view were not in the centre of the field of diplomatic protection.  But practice had already shown that those problems could become major issues needing clarification.  The representative of Austria added that an example was diplomatic protection exercised by international organizations on behalf of their officials or the diplomatic protection for vessels and aircraft.

He said another issue deserving attention was the right to exercise diplomatic protection being delegated to other States.  He said his delegation did not agree with the Special Rapporteur’s suggestion that the ILC should not consider such a case.  Austrian practice furnished two cases where that problem had arisen or could arise.  He referred to draft articles 12 and 13, dealing with the local remedies rule, and said that contrary to those articles, article 14 was important since it defined the limits on the principle of exhaustion of local remedies.  His delegation could go along with the proposal not to include draft article 15 concerning the distribution of the burden of proof into the set of articles.

With regard to provisionally adopted texts 1 to 7, he said his delegation favoured deletion of the requirement of the recognition of the refugee status provided for in article 7.  The requirement of lawful presence should suffice to exclude an abuse of that right.

President of International Court

The Committee then heard a statement from JUDGE GILBERT GUILLAUME, President of the International Court of Justice (ICJ).  Addressing the Committee for the third time, he drew attention to two less well-known aspects of the Court’s case law, namely human rights and environmental law.  In a period between the two World Wars, he said, the Court had had to address the rights of minorities.  It had also had to rule on a number of occasions on the substance and scope of the United Nations Convention (of 9 December 1948) on the Prevention and Punishment of the Crime of Genocide.

In response to a request from the General Assembly regarding the conditions under which States might make reservations to that Convention, the Court stated in its opinion of 28 May 1951 that “it was the intention of the United Nations to condemn and punish genocide as ‘a crime under international law’ involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations”.

It accordingly followed in the Court’s view, he said, that “the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligations”.  More recently, he said, the Court for the second time had had to interpret the Genocide Convention, in proceedings brought by Bosnia and Herzegovina against Yugoslavia.  In a judgment of 11 July 1996, it held that it had jurisdiction to rule on Bosnia and Herzegovina’s application.  In its decision, the Court held that where the Genocide Convention was applicable, it was unnecessary to seek to ascertain whether or not the acts complained of were committed in the course of an armed conflict, whether domestic or international.

The Court had also had occasion to rule on the rights of peoples as such.  It was the Namibia cases that provided it with its first opportunity to do so.  In 1950, the Court held that the mandate over South West Africa conferred on South Africa by the League of Nations was given in the interests of the inhabitants of the territory and of humanity in general.  It was an international institution having an international aim:  a secret trust of civilization.  Then, in 1971, the Court held that South Africa had pledged itself in Namibia “to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race”.  The Court had found that the policy of apartheid as then applied by South Africa constituted “a flagrant violation of the purposes and principles of the Charter” and accordingly concluded that South Africa’s presence in Namibia was illegal.  

He said that Opinion concerned only the particular case of the rights of peoples in mandated territories.  Subsequently, in the Western Sahara case, the Court had the occasion to rule more generally on the right of peoples to self-determination under Article 1, paragraph 2, of the United Nations Charter.  The Court had analysed that right in light not only of the Charter, but also of “the subsequent development of international law in regard to non-self-governing territories”, whose application it then clarified, concluding that the decolonization of Western Sahara must be carried out in accordance with the “principle of self-determination through the free and genuine expression of the will of the peoples of the Territory”.

The ICJ President gave examples of a number of rulings the Court had given in the field of humanitarian law.  In an Advisory Opinion of 8 July 1996 on the Legality of the Use or Threat of Use of Nuclear Weapons, given at the request of the General Assembly, the Court carried out a lengthy analysis of the humanitarian law applicable in armed conflicts.  It concluded that the use of nuclear weapons would generally be contrary to that law, but that, in view of the current state of international law and of the elements of fact at its disposal, it could not conclude definitely whether the use of such weapons would be lawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.    

In their written statements, certain States had argued that such a threat or use must be regarded as illegal in view of the limits imposed by current norms in regard to the safeguarding and protection of the environment.  Noting that such norms did not specifically prohibit the use of nuclear weapons, the Court nonetheless stressed that current international law placed particular emphasis on important considerations of an ecological nature which were relevant to issues involving the law governing armed conflicts or to a consideration of the legality of self-defence.

He said that barely a year later the Court had occasion to refer to its opinion in the context of a dispute between Hungary and Slovakia, reiterating “the great significance that it attaches to respect for the environment, not only for States but also for the whole of mankind”.  The Court further noted the emergence of new norms in environmental law, which the parties could agree to take into account in applying the Treaty relating to the Gabcikovo-Nagymaros Project.

The progress that law and justice had made over the past century corresponded to that in society as a whole and in international relations, he said.  The International Court of Justice retained an essential role, and it was the Court alone that could address all areas of law and accord them their proper place within an overall scheme.  Its jurisprudence in the fields of human rights and environmental law seemed to him to show that it had so far achieved that.  He assured the Sixth Committee that the Court would pursue its efforts with the renewed confidence of States. 

Further Statements on ILC

JOHAN LAMMERS (Netherlands) said the International Law Commission had extensively discussed the draft articles on exhaustion of local remedies, in particular the issue of distinguishing between the principle as a procedural and as a substantive precondition for the exercise of diplomatic protection.  That was a controversial issue that had not been clarified by previous attempts at codification, judicial decisions, State practice or academic opinion. 

The most sympathetic position was the one put forward by the Special Rapporteur in which a distinction was drawn between an injury to an alien under domestic law and an injury under international law.  Two draft articles had been proposed to address the question of when an internationally wrongful act was complete in order to enable the home State to engage in diplomatic protection.  It was regrettable that the articles had not been sent to the Drafting Committee since the “mixed” position clarified the legal intricacies of the issue.  The Commission should keep draft articles 12 and 13 on board to further consideration.

He recalled that he had previously called for a draft article that would contain an overview of situations where there was no need to exhaust local remedies.  He welcomed article 14, which provided that local remedies would not have to be exhausted when there was no voluntary link between the injured individual and the respondent State and in a situation where the internationally wrongful act upon which the international claim was based had not been committed within the territorial jurisdiction of the respondent State.  The question had been raised as to whether a provision concerning the absence of a voluntary link or territorial connection was necessary.  The Special Rapporteur had suggested that the question be dealt with in the context of international liability for damage caused by activities not prohibited by international law.  It was unclear whether the Commission had followed that suggestion.  The provisions could serve a useful purpose.

Finally, he said, the Special Rapporteur had made an interesting proposal to breathe new life into the Calvo clause concerning waivers.  Some in the Commission had said that the right to exercise diplomatic protection belonged to the State and could not be waived by a national of that State.  His position was that the individual did not have a right to diplomatic protection and it was within the discretionary power of the State to grant or deny it.  Under international law, however, nothing prevented an individual from exercising the right to seek that protection from the State of nationality, which was different from a right to be accorded it.  Article 16 accommodated the view that there was no right of the individual to diplomatic protection.  An article could be included to the effect that a contractual stipulation as meant in the article should be construed as a valid waiver of the right to request diplomatic protection.          

MOHAMED BENNOUNA (Morocco) made a distinction between the person enjoying the right of diplomatic protection and the State exercising the protection.  He emphasized that diplomatic protection came into action only once an individual could not gain satisfaction through local remedies.  Concerning the restriction of the scope of the articles and the exclusion of certain issues, he noted that the Commission had asked for the views of governments concerning the protection of flag ships when the crew had another nationality.  He said it was not useful to include the protection of crews in the discussion since it was covered by the Law of the Sea Convention.  Also, the functional protection of an international organization was distinct from diplomatic protection, as the International Court of Justice had determined with regard to the injury suffered by a staff member.  All angles of the question should be considered, such as the instance of injury to former staff members.

In the case of corporations, he said the diplomatic protection should apply to the nationality of the majority of stockholders.  The area of protecting foreign shareholders should receive further study.  The “clean hands” principle should be included in the consideration.

On the rule of the exhaustion of local remedies, he said the rule as it appeared in article 22 on responsibilities of States made it clear that international protection could be pursued only once local remedies had been exhausted.  To consider the rule as a matter of mere procedure was a piece of legal fiction that had entered the discussion.  The date of the violation of international law should be determined and the territorial State allowed to exercise its right to make reparation before international responsibility was invoked.  Articles 12 to 16 should be kept in because the rule was one of substance.  Draft article 14 was important in that it provided for exceptions to the rule of local remedies.  Also, the question of voluntary link had not been adequately addressed.  National courts and judges should decide whether there was a link and the territorial State should have the right to make reparation.  Not everything should be left up to local judges with nothing left up to the Commission, but the Commission should not go too far with the will for perfection.  The draft articles on diplomatic protection should be finalized.  They should serve as a guideline for States.

SAEID MIRZAEE-YENGEJEH (Iran) said customary law should form the basis of the Commission’s work, while being open-minded about the topic of diplomatic protection.  His delegation generally supported the conclusion of the Special Rapporteur that the draft articles should be confined to issues relating to nationality of claims and to the exhaustion of the “local remedies” rule, to ensure the finalization of the topic during the Commission’s current term.

The question of functional protection by international organizations of their officials was an exception to the nationality principle, and was exercised in the interest of the organization concerned.  Crew and passengers on ships and aircraft should not be covered by diplomatic protection, as had been observed by the Special Rapporteur.  He said issues pertaining to the exhaustion of local remedies were mainly academic in nature.  He agreed with the view that the proposed draft articles added nothing more to the present article 11, which should be deleted.

He said the Commission should continue to reflect on the ways and means of incorporating the Calvo clause in the draft articles while giving due consideration to recent developments.

SHRI THIRUNAVUKKARASU (India) said the right of a State to protect its subjects when injured by another State in contradiction of international law (and when unable to obtain satisfaction through ordinary channels in the injurious State) had been recognized as an elementary principle of international law.  The right was exercised with discretion, as each State was free to accept or refuse to exercise diplomatic protection as it saw fit.  The Commission’s work on diplomatic protection should be limited to precedent and practice.  The institution had undergone tremendous changes since the development of communications had expanded the capabilities of an individual to espouse a claim.  States were now reluctant to take up individual cases and convert private claims into State claims.

In view of that, he said, diplomatic protection should serve the interest of nationals.  The concerns of the involved individuals should not be stretched to the point where the State of nationality was obliged to espouse the claim, ignoring political or other sensitivities.  The diplomatic protection in article 7 on behalf of stateless persons and refugees was an undesirable extension of diplomatic protection.  It was susceptible to mischief by the State of a refugee’s habitual residence.  The definition of refugee should not be watered down for the purpose of fitting into the extension.

On the question of whether the principle of exhausting local remedies was procedural or substantive, he said it was a part of customary international law and central to triggering diplomatic protection.  The principle must be stated clearly and unambiguously.  Exhausting the entire range of available remedies would raise questions about standards of justice in the State.  Variations in standards should not give rise to questioning as long as the standards conformed to the principles of natural justice.  Great caution should be used with regard to exceptions to the local remedy rule, to strike a proper balance; likewise with regard to waiver, since it was difficult to devise any objective test for implied waiver.  The question of diplomatic protection of vessels, crews, passengers and shareholders should be handled separately.    

UMBERTO LEANZA (Italy) said that with regard to article 14, on exhaustion of local remedies, his delegation preferred a second option proposed by the Special Rapporteur.  This dealt with remedies that did not offer reasonable prospect of success.  Rules were necessary for the practice of diplomatic protection.  On article 15, which dealt with the claimant and respondent State sharing the burden of proof, he noted the differences between common law practice and that of Roman law, and said the Commission should further examine the provisions. 

He said the provisions of article 16 “Calvo” clause, commonly applied in Latin American States, should not be dramatized; nothing would stop an individual claimant from seeking diplomatic protection as a remedy.

The question of extension of provision of diplomatic protection to crew and passengers of ships and aircraft would have to be analyzed in great detail.

MILOSLAV PETRU (Czech Republic) said the exhaustion of the local remedies rule was a generally accepted precondition for exercising diplomatic protection.  Draft articles 12 and 13 on local remedies were unnecessary since articles 10 and 11 covered their provisions.  Draft article 14 and the Commission’s deliberations showed how difficult and delicate was the attempt to define exceptions to the exhaustion of the local remedies rule.  Article 44 on state responsibility for internationally wrongful acts should be taken into consideration.  An exhaustive list of exceptions was not necessary.           

Reviewing other articles in a similar vein, he said he welcomed the Commission’s decision to deal with the important question of diplomatic protection exercised by a State in favor of stateless persons and refugees.  Draft article 7 constituted an exception to the traditional concept of diplomatic protection and was an example of progressive development of international law.

As to extending the draft articles on diplomatic protection with regard to crews, he said he did not favour the proposal.  Draft article 3 had stated the terms of the so-called nationality link between a State and an individual that entitled a State to exercise diplomatic protection on behalf of an individual.  Consideration of the question would prevent the Commission from finishing its work on the topic during its current term.  Including the topic of responsibility of international organizations on the Commission’s agenda was a timely and highly appropriate decision.   

YORAM DINSTEIN (Israel), speaking on the subject of diplomatic protection, said the scope of the draft articles should be confined to the traditional boundaries of nationality of claims and the exhaustion of local remedies.  Attempts to “push the envelope” and “go out of the box” were attractive at first glance.  However, in the absence of firm support in customary international law, they were likely to complicate the Commission’s work.  The danger of going into uncharted territory had been demonstrated by the Commission this year.  Of the five articles with which the Commission had been seized, three had not gone to the Drafting Committee.

Turning to other issues in the Commission’s report, he addressed three questions with regard to reservations to treaties.  One concerned electronic communications and another the admissibility of reservations.  The third concerned the withdrawal of reservations, which he said was a matter of profound significance.  The reserving State retained full and exclusive control over its reservation.  Withdrawal of reservation was a part of sovereign prerogative from which no entity could detract.

With regard to injurious consequences of acts not prohibited by international law, he said the field was a largely unploughed territory.  The working group had identified eight areas to be studied, including such areas as the circumstances of innocent victims, the development of regimes for ultra-hazardous activities and the harm caused to the global commons.  Finally, on the question of whether responsibility should be limited for internationally wrongful acts, he said the new study should be limited to internationally wrongful acts and should not spin off into other subjects.  The pre-eminent question would concern whether to attribute such an act to an international organization or to its member states.  Also, only intergovernmental organizations should be considered since only they possessed international legal personality.  

JUAN MANUEL GOMEZ ROBLEDO (Mexico), speaking on diplomatic protection, said his delegation believed that the Commission’s work on the topic should be restricted to “natural persons”.  It was encouraged by the step-by-step approach adopted by the Commission in its work, and expressed appreciation for its decision to conclude work on the topic during its current term.

He said his delegation did not agree with the proposal by the Special Rapporteur on diplomatic protection that articles 12 and 13 not be referred to the Commission’s drafting committee.  The two articles dealt with the rule on exhaustion of local remedies.  His delegation, however, commended the Commission for referring article 14 on waiver of diplomatic protection to the drafting committee.

Mexico, he continued, was moving towards a system of protection for its nationals abroad similar in form to diplomatic protection.  There must be examples giving scope and application in the draft articles, he said.  The draft articles should provide States the assurance that their domestic laws had primacy.  There should be more study of the question of the article 15 dealing with burden of proof.  He said his delegation deeply regretted that the Commission did not refer article 16 to the drafting committee.  That article refers to a contractual stipulation between an alien and a State in which he carried on business, by which the former would be satisfied with local remedies or that no dispute arising out of the contract would be settled by means of an international claim.  That provision, by which the alien in effect would waive diplomatic protection, was also known as the “Calvo” clause.  The Mexican representative said the rule had been incorporated in his country’s constitution.  It did not impede mutual agreements on protection of investments.  The Commission must review its decision on the provision.  It was the sovereign right of States to decide to provide diplomatic protection, not individuals.

On future topics, he said he welcomed the selection of fragmentation of international law for study by the Commission.  He agreed with the Commission that it was an important topic, given the diversification and proliferation of international law.  Nevertheless his delegation had concerns about the scope of the study and the final form it should take.  It believed that there should be an analysis of the outcome of study before the task was undertaken.

He also called for a review of the Commission’s Statute since the Commission itself had, in practice, been modifying its approach to its projects.  It was clear that some of the Statute’s provisions, particularly article 26, paragraph 3, were no longer applicable at present.

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