Sixty-first General Assembly

Sixth Committee

10^th Meeting (AM)

DIFFERING APPROACHES ON DIPLOMATIC PROTECTION EMERGE IN LEGAL COMMITTEE

DEBATE ON LAW COMMISSION REPORT; NEED FOR CONVENTION QUESTIONED

Observer Status in General Assembly Recommended for Three Organizations

The Sixth Committee (Legal) this morning approved without a vote draft resolutions recommending observer status for three organizations in the work of the General Assembly, as it continued its consideration of chapters of the report of the International Law Commission dealing with, among others, diplomatic protection of persons and entities and international liability for transboundary harm.

By the resolutions, the General Assembly would invite, respectively, the Organization of the Petroleum Exporting Countries (OPEC)Fund for International Development, the Indian Ocean Commission and the Association of Southeast Asian Nations (ASEAN) to participate in its work as observers. 

Speaking on the report on the fifty-eighth session of the International Law Commission, Argentina’s representative said he agreed both with the definition of diplomatic protection and reserving for the State of nationality the discretionary power for the exercise of such protection.  A State must have the power to assess the best opportunity to invoke the international liability of another State, in agreement with the general goals of its foreign policy. 

The representative of France believed that the importance of the institution of diplomatic protection justified States considering the adoption of an international convention that would allow them to harmonize their practice in that area.

Some States disagreed, with the representative of the United Kingdom noting that further development of the law would be served by a period in which States could become familiar with the draft articles and draw on them in the form in which they now stood.  It would be premature to determine that the present draft articles should form the basis of a convention when there was as yet no consensus that the articles on State responsibility would be elaborated in treaty form.

Addressing the issue of international liability for transboundary harm, the representative of the United States said the principles adopted incorporated such progressive ideas as the responsibility of operators, the desirability of backup financial security measures, the importance of prompt response measures and broad concepts of harm which merited compensation.  The principles also stressed the importance of national, bilateral, regional and sectoral arrangements to carry out those ideas.  It was appropriate that the principles take the form of non-binding standards of conduct and practice.

South Africa’s representative said the strict liability imposed on the operator of hazardous activities advanced the development of international law.  Given the economic benefits derived from hazardous activities, it was consistent with the principle of sustainable development and the notion of integration to hold operators accountable for the attendant social, environmental and economic risks.

Statements were also made by the representatives of Japan, Norway (on behalf of the five Nordic countries), Germany, New Zealand, Canada, Australia, Republic of Korea, Romania, Portugal, Ukraine and Greece.

The Sixth Committee will meet again at 10 a.m. tomorrow, Thursday, 26 October to continue its consideration of the International Law Commission’s report.

Background

The Sixth Committee (Legal) met this morning to continue its discussion of the annual report of the International Law Commission.  It was also expected to take action on three draft resolutions, to approve observer status in the General Assembly for the Indian Ocean Commission, the Organization of Petroleum Exporting Countries (OPEC) Fund for International Development and the Association of Southeast Nations (ASEAN) (A/C.6/61/L.2, L.3, and L.4, respectively).

Statements

HIROSHI TAJIMA ( Japan) said he believed the Commission had been correct in not using the “genuine link” criterion between an injured person or legal person and a State, since the activities of many corporations and individuals extended over several States.  As to the “predominancy” criterion in article 7, the Commission was fully aware that the concept may not be supported by sufficient precedent, and the enumerated factors may not be decisive.  He basically appreciated that the Commission had drafted articles for diplomatic protection of stateless persons and refugees, given the importance of extending protection to such persons.  However, he also appreciated that the Commission had emphasized the discretionary nature of the rights of States.  In a concrete case, the formula regarding the protection of ships’ crews by the State of their nationality and the State of nationality of a ship might cause difficulty in coordinating between two competing claims.  Concerning article 19 on recommended practice, while there was growing support for the view that there was some obligation on States to protect their nationals abroad when they were subjected to significant human rights violations, he had some concerns over the clause.  He said it represented neither codification of customary rule nor progressive development and might change the nature of the draft articles.

As to international liability, he said he believed the final outcome should take the form of draft principles.  He expressed doubts as to whether there was any benefit in reopening a discussion of the “most favoured nations clauses”.

DIRE TLADI ( South Africa), speaking on diplomatic protection, agreed with the position articulated in article 2 that the right to exercise diplomatic protection rested with the State.  He expressed concern over some of the implications of article 19.  Although it was couched in non-peremptory language, he said, it might, nonetheless, open the door for abuse by nationals who might want to force States to invoke diplomatic protection with respect to frivolous claims.  South Africa’s practice was to extend diplomatic protection to its nationals abroad.  Where a request was made for diplomatic protection, South Africa was unlikely to refuse.  However, under international law, the exercise or not of diplomatic protection was a right of a State and not its duty.

Turning to international liability, he said the strict liability imposed on the operator of hazardous activities advanced the development of international law not only in terms of environmental law but also relating to sustainable development.  The imposition of liability for acts not prohibited by international law might represent a departure from the traditional principle that a duty to compensate arose from a wrongful act.  However, given the economic benefits derived from hazardous activities, holding operators accountable for the attendant social, environmental and economic risks was consistent with the principle of sustainable development and the notion of integration.  He said some of the principles raised practical difficulties such as the quantification of damage.  Also, who was to receive compensation -- was it the State or the community directly affected -- and who would ensure that the compensation was actually used for the purpose of restoration?

OSVALDO MARCICO ( Argentina) said he agreed both with the definition of diplomatic protection and reserving for the State of nationality the discretionary power for the exercise of diplomatic protection.  He said a State must have the power to assess the best opportunity to invoke the international liability of another State, in agreement with the general goals of its foreign policy.  He considered the principle of continuity of nationality to be particularly relevant.  He also believed it was justified to include protection for stateless persons and refugees, given the fragility of their juridical status.  Although Argentina supported, on principle, the adoption of a binding instrument, it did not believe the decision necessarily had to be linked to a decision on the draft on the responsibility of States for wrongful acts.

Argentina, he added, basically agreed with the approach taken on the principles on international liability.  The creation of specific international regimes should include the question of concurrent or supplementary liability of the State of origin of the hazardous activity and the harm caused.

ROLF EINAR FIFE ( Norway), speaking also for the other Nordic countries –- Denmark, Finland, Iceland and Sweden -- said those countries were satisfied that the International Law Commission had swiftly concluded its work on diplomatic protection.  In their view, the result of the Commission’s work on the topic struck a good balance between the codification and the progressive development of international law in that field.  They supported the approach chosen by the Commission in draft article 2, based on the premise that States had a right, not a duty, to exercise diplomatic protection. They underlined the fact that principles and rules of diplomatic protection were without prejudice to the law of consular protection and other applicable rules of international law, including those pertaining to the Law of the Sea.

On article 5 (continuous nationality of a natural person), he said the Nordic countries supported the chosen approach of the Commission, whereby a State might exercise diplomatic protection in respect of a person who was its national at the time of injury and was a national at the date of the official presentation of the claim.  Consistent with that view, they also supported the Commission’s approach when applying the same solution in draft article 10 with regard to corporations.  They strongly supported the Commission’s approach on article 7 (multiple nationality).  In their view, the article constituted a codification of existing customary international law.  That law had no bearing on the possibilities to provide consular assistance, which were not governed by the law pertaining to diplomatic protection.  They also touched upon articles 8, 11, 18 and 19. On article 18 (protection of ship’s crew), they supported the Commission’s approach whereby the right to exercise diplomatic protection by the flag State did not exclude the same right to be exercised by the State of nationality of the members of the crew and vice versa.  They said it was an important principle, which ensured that the protective measures established by the Law of the Sea were not undermined.  The new article 19, whereby a State should give due consideration to the possibility of exercising diplomatic protection as well as taking into account the views of the injured persons, seemed reasonable and consistent with article 2.

GEORG WITSCHEL ( Germany) reiterated his country’s support for the legal position expressed in draft article 2, namely, that the exercise of diplomatic protection constituted a right, but not a duty, of States.  He said the Commission’s recommendation that States should give due consideration to the possibility of exercising diplomatic protection, did not detract from that.  The law remained as it stood; there was no obligation or duty incumbent on a State under international law to exercise diplomatic protection in any given case.

He said he was glad that the definition of the State of nationality with regard to natural persons had been maintained.  In today’s world of migration and globalization, the application of the “genuine link” test would potentially cause hardship to millions of persons who did not possess the nationality of their host States, by depriving them of diplomatic protection by their home State, however tenuous their link with that State might have become in the course of their lives.  On the whole, he said his country agreed with the rules adopted by the Commission for the diplomatic protection of legal persons.

On the question of the future of the articles, he said they were not yet ripe for immediate adoption in the form of a convention.  He said States should be given some more time to study the entire text and to comment on it.  He supported the proposal by some representatives that the General Assembly at its current session should only take note of the draft articles on diplomatic protection and postpone its decision on how to proceed further to a later date.

JOHN BELLINGER ( United States) said it was not advisable to attempt to adopt a binding instrument on diplomatic protection.  On only a limited set of issues did the draft articles deviate from settled customary international law, and it was doubtful whether those limited issues warranted the expense and other requirements of an international conference.  Further, he said, the articles and commentaries had been adopted this year and had only become available to Governments recently for review.  The United States welcomed the changes the Commission made to the articles to reflect customary international law more accurately.  He said it was useful that the commentary on article 1 had made it clear that diplomatic protection did not include démarches or other diplomatic action that did not involve the invocation of the legal responsibility of another State, such as informal requests for corrective action.  He was also pleased at the affirmation that a State was under no obligation to exercise diplomatic protection, since the question of whether to espouse claims formally was a sovereign prerogative, the exercise of which necessarily implicated other considerations of national interest

He said that while he appreciated the articles honouring the established principle of continuity of nationality as a prerequisite to the exercise of diplomatic protection on behalf of natural and corporate persons, he believed the articles inappropriately deviated from customary international law in several respects, which he would detail further in writing.

He said he welcomed the restatement, in article 12, of the customary international law that a State of nationality of shareholders could exercise diplomatic protection on their behalf when they suffered direct losses.  He also welcomed the provision in the articles that a State may not present an international claim before the injured person had exhausted all local remedies.

The principles on transboundary harm were a positive step towards encouraging States to establish mechanisms to provide prompt and adequate compensation for victims.  They incorporated such progressive ideas as the responsibility of operators, the desirability of backup financial security measures, the importance of prompt response measures and broad concepts of harm entitled to compensation.  They also stressed the importance of national, bilateral, regional and sectoral arrangements to carry out those ideas.  It was appropriate that the principles take the form of non-binding standards of conduct and practice.

As to the new subjects for the Commission, he said he thought the proposed topic on “protection of persons in the event of disasters”, with its focus on such real-world problems as improvement of coordination among aid providers and the facilitation of access of people and equipment to affected areas, had the potential to generate practical legal tools that would help alleviate human suffering when disaster struck.

ROSEMARY BANKS (New Zealand), noting that much of the law commission’s progress depended on the efforts of the Special Rapporteurs, agreed that it was time to revisit the question of providing honoraria to them to assist them in their research.  On diplomatic protection, she said it was wise to have widened the limited exception in article 11 on rule of nationality.  The commentary to article 1 helpfully explained that diplomatic protection did not include démarches or other diplomatic actions not involving the invocation of the legal responsibility of another State.  On the article on recommended practice, it would seem appropriate that a State exercising diplomatic protection should transfer to its injured national any compensation obtained subject to any reasonable deductions.

She said New Zealand had a longstanding interest in the work on transboundary harm.  Its importance had grown with the advent of new technologies and the more widespread use of others.  She said she supported the Commission’s recommendation that the Assembly endorse the draft principles in a separate resolution.

ALAN KESSEL ( Canada) said that his country could support the various proposed amendments and comments in the report of the Commission’s Special Rapporteur.  It was pleased that the Rapporteur had addressed the apparent confusion between diplomatic protection and consular assistance.  It was a real and important legal distinction but one that was no longer normally clearly embodied in structural division between consular and diplomatic services.  He pointed out that a great deal of consular work was done by diplomats and, in protecting the interests of their nationals, those diplomats moved easily between the two roles. 

He said that in addition to the distinction between diplomatic and consular protection, the terms of article 7 had created some confusion in another area of consular law.  He said predominant nationality was not a concept that could lend itself to defining the primary obligation to give consular notice to foreign nationals.  He said it would be useful if the Commission’s commentary on the issue clearly addressed it, to avoid confusion. 

Canada, he continued, had noted the issue raised regarding the appropriate final form the draft articles on diplomatic protection should take.  In its view, the draft articles would be extremely useful to the international community in their present form, and it did not see the need for transforming them into a treaty.

DANIEL BETHLEHEM ( United Kingdom) said the exercise of diplomatic protection was a matter for the discretion of the State.  It was a cardinal principle that stood at the centre of that body of law.  With regard to articles 5 and 10, he said the United Kingdom welcomed the inclusion of a presumption of continuity of nationality where the relevant nationality existed at both the date of injury and the date of official presentation of the claim.  That reflected United Kingdom practice, he said.  Discussing the articles, he said there was an element of inconsistency in the approach regarding natural persons and legal persons on the question of changes in nationality which ought to considered further.  The United Kingdom expressed concern about the inclusion of the new article 19 (recommended practice) which it said was inappropriate; to suggest that States should “consider” the exercise of the right to diplomatic protection risked undermining the well-established rule of customary international law.  On the future of the text, he said that in his country’s view the further development of the law would be served by a period in which States could become familiar with the draft articles and draw on them in the form in which they now stood.  It would be premature to determine that the present draft articles should form the basis of a convention when there was as yet no consensus that the articles on State responsibility would be elaborated in treaty form.

On international liability, he said that, while the Commission had addressed some of the United Kingdom’s concerns, many remained.  He referred to the adoption of the threshold of ‘significant harm’ and the inclusion of States within the category of victims of transboundary harm.  His delegation considered that it was useful for the Commission to include in draft principle 3 a specific objective on the protection of the environment per se.  He recalled the United Kingdom’s previous observation that the protection of the environment was a relatively recent concept on which practice was confined to a few, specific concepts.  While the Commission’s commentary now contained further guidance, he said some of the complex questions raised still had not been fully addressed.

He also reiterated his delegation’s previous comments regarding principles 7 and 8, and said that liability regimes, binding at the international level, were complex and time-consuming to negotiate, and that, in many cases, they had experienced little success.

MIA GOLDSMITH ( Australia) said she welcomed the fact that the Commission had brought a contemporary perspective to the topic of diplomatic protection.  She cited the commentary note that “dual or multiple nationalities is a fact of international life,” and the draft articles which appropriately reflected that reality.  She said she endorsed the view that the exercise of diplomatic protection was a right not a duty, and reiterated Australia’s belief that diplomatic protection of a ship’s crew was adequately covered by the flag State and by existing international law; it did not need to be addressed by the draft articles. 

She also welcomed the provision that special rules of international law prevailed over the general rules elaborated in the articles.  As to elaborating a convention on the basis of the draft articles, she said exposing them to negotiations between States could diminish their substance.  She preferred them in the form of a declaration of the Assembly.

In drafting the set of principles on international liability to guide States, she said the Commission had sensibly avoided the difficulties of trying to harmonize national laws and legal systems.  States should take time to reflect on the draft principles before taking a collective stance on them. 

KIM SUN-PYO ( Republic of Korea) said one of the crucial functions of a State nowadays was to protect its nationals abroad in an increasing span of activities.  Extending the protective shield of the State to non-nationals, such as the stateless and refugees, had also become necessary.  In terms of article 5 on continuous nationality, he believed there should be an exemption for a newly independent State from the status of “colony” to exercise diplomatic protection for its nationals who were nationals of the former colonial power, against that power with regard to an injury caused by it before the colony became independent.  The rule that a State should not support a claim of a dual national against another State of nationality was supported by the jurisprudence of case law of international courts.  He noted that the International Court of Justice ruling that a corporation was protected by its State of nationality, and not by the States of nationality of the shareholders, had provoked widespread criticism from jurists.

Turning to international liability, he said it was unclear what qualified as “significant damage”, and who was to decide on the issue.  Also, the notion of the “environment” was rather broad, raising concerns about the rapid increase in claims for damages.  It was also unclear whether compensation in principle 4 was “strict liability” or “absolute liability”.  He added that in some cases, such as space object launch or nuclear power plant, States were eligible to be direct subjects of compensation.  Finally, the current draft of principle 6 was deemed unable to prevent victims from forum shopping, which could lead to a dispute among States especially when awards for damages showed considerable discrepancy.   

COSMIN DINESCU ( Romania) commended the Special Rapporteur for his seventh report, which had enabled the Commission to complete its work on the draft articles on diplomatic protection.  She said her country supported the approach taken by the Commission on draft article 2 (right to exercise diplomatic protection) which, read in conjunction with the new article 19 (recommended practice), represented an important progress on the subject matter.  She stressed the importance of article 8 which covered stateless persons and refugees.  She supported the view that States should be given more time to study the draft articles on diplomatic protection before a final decision was taken on their future form.

On the subject of international liability, she expressed pleasure with the third report of the Commission’s Special Rapporteur, as well as the Commission’s work on the topic in adopting the preamble and the draft principles.  She said she supported their adoption in the form of a resolution by the General Assembly, and favoured encouraging bilateral and regional agreements on liability.  She agreed with the Commission’s view concerning the prompt payment of compensation for transboundary damage; States had a duty to compensate quickly and adequately victims of transboundary harm in order to hold operators accountable without exonerating States of their responsibility under international law.

LUIS SERRADAS TAVARES ( Portugal) said the most appropriate new topic for codification and progressive development, among those adopted by the Commission, was the immunity of State officials from foreign criminal jurisdiction.  He expressed doubt as to the others.  Contending that the interventions of States in the Sixth Committee could not be adequately taken into account by the Law Commission, he said he would welcome opportunities to further reflect on how to continue improving the work of the Commission and its relationship with States.

On diplomatic protection, he said he understood the concerns that the work should not go beyond the traditional topics falling within the subject, namely, nationality of claims and the exhaustion of legal remedies.  Nevertheless, due consideration should have been given to such important issues as the relationship between functional protection by international organizations of their officials and diplomatic protection, as well as to the case where a State or an international organization administers or controls a territory.  He offered specific comments on several of the draft articles.

Turning to international liability, he said the adoption of the principles by an Assembly resolution was a positive step towards the creation of measures allowing prompt and adequate compensation to victims of transboundary damage.  Nevertheless, Portugal believed the final form of work on the topic should have been draft articles and not draft principles.  If Member States opted for a declaration of principles, room must be left for jurisprudence and doctrine to continue to develop.  As to compensation for victims, the State of origin should assume a bigger role. 

EDWIGE BELLIARD ( France) said the current importance of the Commission’s work on international liability must be clear to all.  However, the draft principles on the topic seemed to ask as many questions as they seemed to answer.  There were some sensible provisions such as the one in article 7 calling for no effort to be spared to provide specific arrangements concerning particular categories of hazardous activities. She questioned the language used in articles 5 and 6 concerning compensation, saying it was similar to the terminology used in the law of wrongful acts.

On unilateral acts, she said the Commission should have explicitly indicated that its draft was not meant to be exhaustive.  A link should be made between a unilateral act and the intention expressed by a State.  She questioned the Commission’s work on the topic of fragmentation of international law, saying the Commission appeared to have held only three meetings on the subject and that the study cited was conducted on the sidelines.   France would, therefore, abstain from commenting on the study.

Turning to diplomatic protection, she said the re-reading had allowed important amendments to be made which tangibly improved the text.  Some difficulties remained, though; the Commission should not lose sight of its task by treating subjects that had to deal with other branches of international law.  She said there were also some omissions which diminished the scope of the project.   France believed the importance of the institution of diplomatic protection justified States considering the adoption of an international convention that would allow them to harmonize their practice in that area.

OKSANA PASHENIUK ( Ukraine) appreciated that the Commission had boiled the draft articles down to basic rules and concentrated on secondary norms regarding diplomatic protection.  Any other attempt, such as trying to define the breaches of substantive law, would have faced insurmountable difficulties.  The obligation to exhaust local remedies must be distinguished from the State’s obligation to offer access to its courts.  She agreed with the decision to address neither the “Calvo Clause” nor the “clean hands” doctrine.  She questioned whether other issues, such as the right of international organizations to exercise diplomatic protection, should have been included in the topic.  International organizations still posed major problems with respect to their legal structure.  She then offered more specific comments on several articles.

FANI DASCALOPOULOU-LEVAOA ( Greece) said the articles on diplomatic protection produced by the Commission constituted a largely successful codification of international law in force on the topic.  It was high time the instrument on diplomatic protection was codified and, where appropriate, progressively developed so as to constitute a clear chart when resorted to by States.  Turning to some of the provisions, she said that with regard to article 9, there was no balance between the two possibilities set out for deciding which was the nationality of the legal person in question.  In her view, there was no convincing reason for differentiating between the State of where incorporation took place and the State where the corporation was located, as potential States for the nationality of the corporation.   Greece believed that the conditions set in the case of the State of the seat of the corporation should be reduced.  With regard to articles 16 and 17, she saw no reason for treating the matters dealt with by them separately.  The articles should be merged, she said.

On international liability, she said the Commission should be congratulated for its accomplishment on such a difficult topic.  She considered that the draft principles should apply not only to transboundary damage but also to damage to the global commons, at least in relation to damage arising from response measures undertaken by a State or other entity.  Greece strongly believed that the principles should not only be endorsed by the General Assembly but also constitute the primary material for the future elaboration of a general convention on the topic, provided that a clear definition of “hazardous activities” was adopted to clarify the scope of application.

Action on Drafts

The Committee then approved, without a vote, the three draft resolutions recommending that the General Assembly grant observer status in its work to the Indian Ocean Commission, the OPEC Fund for International Development and ASEAN, respectively.

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