LEGAL COMMITTEE SEES THREE OPTIONS FOR PURSUING ISSUE OF DIPLOMATIC PROTECTION; IN DEBATE, VIEWS DIFFER ON DESIRED OUTCOME

Sixty-second General Assembly

Sixth Committee

10^th Meeting (AM)

LEGAL COMMITTEE SEES THREE OPTIONS FOR PURSUING ISSUE OF DIPLOMATIC

PROTECTION; IN DEBATE, VIEWS DIFFER ON DESIRED OUTCOME

Three options on the future form of the draft articles on diplomatic protection, adopted by the International Law Commission in 2006, emerged this morning as the Sixth Committee (Legal) concluded debate on the subject.

The first option would be for the Assembly to adopt the articles in a resolution inviting Governments to take account, as appropriate, of the provisions of the articles.  Another option was for the Assembly to establish an ad hoc committee to discuss the question further.  And, finally, there was the suggestion to establish an ad hoc committee to elaborate a convention based on the articles.  A decision was expected to be taken in informal negotiations before final action by the Committee in the form of a draft resolution on the topic.

Portugal’s representative said completion of work by the International Law Commission on the subject in less than 10 years proved that it was indeed “ripe and adequate” for codification and progressive development.  He welcomed the Commission’s recommendation that the draft articles should serve as the basis for elaboration into a convention.  He suggested that an ad hoc committee in the framework of the Sixth Committee be established with a mandate to do so.

The representative of Norway, speaking also for the other Nordic countries ( Denmark, Finland, Iceland and Sweden), said the draft articles struck a good balance between the codification and the progressive development of international law in the field of diplomatic protection.  They continued to believe that the General Assembly should follow the recommendation of the International Law Commission, and in a relatively short time adopt the draft articles in the form of a convention.

Greece’s representative considered that the rules on diplomatic protection, as drafted by the Commission, were ripe for inclusion into the body of international law.  She said the best way for the draft articles to acquire treaty status was for a diplomatic conference to be convened under United Nations auspices to discuss it.  The conference would offer an opportunity for States to present their positions.

The representative of the United Kingdom said Member States should have a period of reflection before any decision on negotiations of the convention.  The relative novelty of the draft articles meant that the United Kingdom had not had the opportunity to put the articles to the test of practical application in State practice or in decisions of international courts and tribunals.  Postponing a decision on the future of the articles would permit the text to be consolidated and refined through application.

Canada, speaking also for Australia and New Zealand, agreed that elaboration of a convention based on the draft articles was not advisable at present.

Malaysia said the articles had not been fully and truly considered by many States because they were adopted fairly recently.  Further development of the subject would be best served by more reflection.

Japan’s delegate said the articles on diplomatic protection were useful in reflecting customary international law, and contained provisions that could be viewed as aiming at progressive development of the law.  The International Court of Justice had referred to the articles in the case concerning Ahmadou Diallo, a foreign national in New York, which could be interpreted as a sign of positive recognition.  But since it was unclear how useful they would prove in practice, they should be left as they were until 2012.

The 19-article draft text on diplomatic protection is elaborated in four parts:  general provisions, nationality, local remedies and miscellaneous provisions.  The International Law Commission formally began work on the topic in 1997, and had earlier noted that an instrument on diplomatic protection would complement its work on State responsibility.  The draft articles are concerned only with the rules governing the circumstances in which diplomatic protection might be exercised and the conditions that must be met before that was done.

Others speaking in the debate were the representatives of Cuba, El Salvador, Guatemala, Venezuela, China, Poland, Mexico, Germany, Austria, South Africa, United States, Kenya, Brazil, Russian Federation, India, Iran and Ecuador.

Also this morning, four draft resolutions were introduced requesting observer status in the work of the General Assembly for four bodies -- the Regional Centre on Small Arms and Light Weapons in the Great Lakes Region, the Horn of Africa and Bordering States; the Italian-Latin American Institute; the Energy Charter Conference; and the Eurasian Development Bank.

The Committee is expected to meet again at 10:00 a.m. on Monday, 22 October, to take up the report of the United Nations Commission on International Trade Law (UNCITRAL).

Background

The Sixth Committee (Legal) met today on its agenda item on diplomatic protection, and to consider requests to grant observer status in the work of the General Assembly to a number of organizations.

On diplomatic protection, Governments last year were invited to submit comments on the recommendation of the International Law Commission that the Assembly elaborate a convention based on draft articles the Commission had adopted and of which the Assembly had taken note.

A report of the Secretary-General contains comments and observations from 13 Governments (document A/62/118 and Add.1).  The following countries supported the elaboration of a convention on diplomatic protection:   Argentina, Brazil, Cuba, India, Lebanon, Norway (on behalf of Denmark, Finland, Iceland, Norway and Sweden), Portugal and the Russian Federation.

Austria said it was not convinced of the usefulness of such a project, while the Czech Republic said it was not necessary to adopt a convention at this stage.  The United Kingdom said the elaboration of a convention would be unhelpful.  There should be “a period of further reflection on the text of the draft articles and commentary”.  It would ask the General Assembly to defer the decision on the future of the draft articles until 2012.

According to the United States, the negotiation of a convention would risk undermining the very important work that had been undertaken by the International Law Commission on the topic, and it suggested that the General Assembly should adopt a resolution noting the draft articles with the text annexed to it.

France said the draft articles served as a complement to the 2001 text on responsibility of States, and should therefore be considered within the framework of the law of State responsibility.

The 19-article draft text on diplomatic protection is in four parts:  general provisions, nationality, local remedies and miscellaneous provisions.  A commentary on article 1 (definition and scope) states that the draft articles are “concerned only with the rules governing the circumstances in which diplomatic protection may be exercised and the conditions that must be met before it may be exercised”.

It is stated that the draft articles “do not seek to define or describe the internationally wrongful acts that give rise to the responsibility of the State for injury to an alien.  The draft articles, like those on the Responsibility of States for internationally wrongful acts, maintain the distinction between primary and secondary rules and deal only with the latter.”

Part One covers articles 1 and 2 on definition and scope, and the right to exercise diplomatic protection respectively.  Part Two covers articles 3 to 13, dealing with a range of issues such as protection by the State of nationality; multiple nationality and claims against a State; stateless persons and refugees; and State of nationality of a corporation, and protection of shareholders.

Part Three, containing articles 14 and 15, deals with exhaustion of local remedies and exceptions to the local remedies rule; and finally, Part Four contains articles 16 to 19 on topics such as special rules of international law and protection of ships’ crews.  Article 19 is on recommended practice of States.

On the subject of granting observer status to organizations, the Committee had before it a draft resolution on the Regional Centre on Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa (document A/C.6/62/L.2), by which the Assembly would grant that organization observer status in its work, in response to the recommendation of Kenya (document A/62/141), noting in a background paper that the organization is an international and intergovernmental body that serves as a framework for combating the prevalence of such arms in its region.  The paper also states that the organization promotes human security by ensuring that appropriate legislative and administrative measures are put in place by parties to the 2005 Nairobi Declaration, relating to those arms in the region.

A draft resolution on the Italian-Latin American Institute (document A/C.6/62/L.5) would have the Assembly grant observer status in its work to that organization in response to a request of Italy (document A/62/143) on behalf of itself and 12 other States members, namely Argentina, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Peru and Uruguay.  (The background document says the others, of the total of 21 members, are Bolivia, Chile, Cuba, Haiti, Mexico, Panama, Paraguay and Venezuela.)  Founded in 1966, the organization aims to enhance cooperation among its member States through tangible programmes promoting knowledge and development in social, economic, cultural and technological-scientific areas, particularly through its Library and Centre for Documentation.  Recognized for its role in fostering relations between Europe and Latin American countries, the organization has now consolidated its international presence and therefore desires to strengthen and institutionalize relations with the United Nations.

The Energy Charter Conference is the subject of another draft resolution (document A/C.6/62/L.3) by which observer status would be granted at the request of Japan (document A/62/191).  The background document reports that the Conference is the governing body of the Energy Charter Treaty and its Protocol on Energy Efficiency and Related Environmental Aspects, signed in December 1994 and in force since April 1998.  To date, 51 States and the European Union have signed or acceded to the Treaty, while 19 countries and 13 international institutions participate in Conference activities as observers.  A legally binding multilateral instrument on investment and trade, the Treaty is the only one of its kind dealing specifically with intergovernmental cooperation in the energy sector.  It provides a multilateral framework for energy cooperation while establishing a legal foundation for energy security.

The paper concludes that the granting of observer status to the Conference in activities of the General Assembly would be mutually beneficial to the Conference and to the United Nations, particularly its Commission on Sustainable Development.  Enhanced cooperation would promote the aims of both.  It would also enable them to achieve more complementarity in their work and would widen the potential for more systematic forms of cooperation.

Finally, a draft resolution on the Eurasian Development Bank (document A/C.6/62/L.4) would have the Assembly grant observer status in its activities to that group in response to the request of Kazakhstan (document A/62/194), on behalf of the Bank member States that included itself, Belarus, Kyrgyz Republic, Russian Federation, Tajikistan and Uzbekistan.  The background document states that the Bank is an international intergovernmental organization promoting socio-economic development and integration in the Eurasian area.  It engages in investment activities, advises members on questions of economic development and cooperates with others in the region at all levels.

The Bank’s registered capital was $1.5 billion, the document continues.  Located in Almaty, Kazakhstan, the Bank was expected to have an investment project portfolio in excess of $3.5 billion by the end of 2009, when its assets would reach $5.5 billion.  As the largest integration project in the region in the financial and economic field, the Bank and the United Nations would benefit from the granting of observer status in the General Assembly.

Statements

HUGH ADSETT (Canada), speaking also for Australia and New Zealand, said “diplomatic protection” had largely been characterized by customary international law, with developments achieved through State practice and the decisions of international courts and tribunals.  They welcomed the clarifications made by the International Law Commission in past years to a number of provisions in preliminary drafts of the articles to more accurately reflect customary international law, and to expressly note that some articles represented a progressive development of the law.  He said the concepts of predominant nationality set out in article 7 would not, in their view, be a basis for altering the primary legal obligation to give consular notice to foreign nationals.

On the Commission’s proposal for the elaboration of a convention based on the draft articles, he said they believed that it was not advisable to attempt to do so at present.

ÅSMUND ERIKSEN ( Norway), speaking also for the other Nordic countries ( Denmark, Finland, Iceland and Sweden), said that they had submitted their comments concerning the final form in which the draft articles on diplomatic protection should be adopted.  He said the draft articles met their general satisfaction; the text struck a good balance between the codification and the progressive development of international law in the field of diplomatic protection.

They continued to believe that the General Assembly should follow the recommendation of the International Law Commission and in a relatively short time adopt the draft articles in the form of a convention.

LUÍS SERRADAS TAVARES ( Portugal) said completion of work on the topic in less than 10 years proved that it was indeed “ripe and adequate” for codification and progressive development.  Portugal welcomed the Commission’s recommendation that it should be elaborated into a convention on the basis of the draft articles.  It agreed with the draft articles in general.  He suggested that an ad hoc committee within the framework of the Sixth Committee could be established to further discuss the issue, with a mandate to elaborate the convention.

ADELINA ALLEN ( Cuba) said the articles on diplomatic protection were an important development in the codification of international law in protecting the rights of a person when away from the country of home.  It was an important step for protecting human rights overall, to recognize the extension of diplomatic protection to the rights of those who were refugees or stateless persons.  The articles should be drafted into a convention, which would help to highlight and clarify the legal aspects involved in the question.  The articles should be submitted to a working group for finalization and completion with a view towards promoting the broadest possible consensus and acceptance by Member States.

CLAUDIA VALENZUELA ( El Salvador) recalled that the articles were part of the broader area of State responsibility and should be treated in the same way.  Article 8 on diplomatic protection of stateless persons needed to be clarified.  More time was required to reflect on the articles and analyze them to improve the outcome.  The subject should remain on the Assembly’s agenda.

ANA CRISTINA RODRÍGUEZ-PINEDA ( Guatemala) said she did not oppose the adoption of a convention based on the articles, but they should be considered further before that stage.  It was a sensitive issue and involved complex legal questions related to the protection of citizens on the property of another sovereign State.  Further study should also be devoted to clarifying the relationship between diplomatic protection and the protection of human rights, the reasons for denial of justice and the discretion of States involved from a legal rather than political perspective.

ALEJANDRO MORENO ( Venezuela) stressed the importance of the question of diplomatic protection; the studies on the topic had recognized the difference between diplomatic protection and consular assistance, and the principle of continuity of nationality.

He spoke of the importance of keeping the provisions relating to refugees and people without a nationality, and said he regretted the contents of article 19 because of its provisions telling States which practice was “desirable”.  He said diplomatic protection was an act of a State and the compensation collected would be used in the best interests of the State’s national or nationals.  The Constitution of Venezuela stressed the principle of social justice, and compensation should fit that principle.

MA XINMIN ( China) said the final form of the draft articles on diplomatic protection should be decided upon by the General Assembly.  The issue should be placed on its agenda on a triennial basis.

Commenting on the draft articles, he said the provisions of article 6 could lead to a situation in which, after one State of nationality exercised diplomatic protection in respect of its nationals, other States of nationality might also exercise that protection in respect of their nationals over the same injury.  That was inappropriate, and the article should clearly specify that no protection should be offered over the same case.

He said China agreed that the principle established in article 14 should be premised on the exhaustion by the injured person of all local remedies of the State alleged to be responsible for causing the injury.  The State of nationality of the injured person should not be kept from taking necessary diplomatic protection in respect of the matter.

JAN SANDORSKI ( Poland) said the right to communicate with consuls was the important component of the right to diplomatic protection.  The State of nationality had a legal duty to exercise diplomatic protection on behalf of the injured person upon request.  Without request, it had a legal duty to exercise diplomatic protection of the injury resulting from a grave breach of jus cogens norms of international law attributable to another States.  The International Law Commission should catalogue the relevant peremptory norms of international law, since there was no clear understanding of the meaning and scope of jus cogens.

For such reasons, he said, the draft articles were not yet mature enough to be given the form of a binding international document.  The General Assembly should take note of the articles and commend them to the attention of Governments, without prejudice to the question of their future adoption in the form of a convention, or other appropriate action.  That decision should be postponed.

In the meantime, he said, Poland had published the draft articles in an annual publication, thus implementing Assembly resolutions calling for States to disseminate documents on which the Law Commission had finished work.  In that way, they could be studied and they could “mature and transform”, until being transformed into binding law when appropriate.

ALEJANDRO ALDAY ( Mexico) said diplomatic protection was just one way of protecting the rights of individuals, and that it was a central concern of foreign policy.  The draft articles were appropriate in their present form as related to the principle of the exhaustion of domestic remedies and all other remedies.  A convention should be drafted based on the articles, since it would add clarity and legal certainty to international law.  They would strengthen international law and would be more effective as a convention, since there was a growing trend of nations to dismiss “soft law”.  The development of communications technology and international trade made it necessary to clearly lay down the responsibility of States towards their nationals who were abroad.

THOMAS FITSCHEN ( Germany) said the legal core of the matter was that diplomatic protection was the right of States, not of individuals.  It was also a right, not a duty.  Even where a State was under obligation by its own constitution to exercise diplomatic protection, there was a large margin of discretion on how to do that.  That was part of customary international law, and the situation was adequately reflected in article 2.  Any future codification of the law of diplomatic protection should not go beyond that well-established rule.

If the articles were to be elaborated into a convention, he continued, more thought should be given to the question of the “genuine link” between the individual and the State that had the right to exercise diplomatic protection.  In today’s global world, more people lived abroad for extended periods and moved back and forth from one country to another.  Under such circumstances, the initial link with their country of nationality may be so severed that it was no longer so clearly unique or “genuine”.  A convention would have to take that feature of modernity into account.  Also, article 19 would need to be revisited.  A legally binding convention needed to be cast in terms of rights and obligations rather than proposals.

KAMAL BAHARIN OMAR ( Malaysia) stressed the importance of account being taken of divergent views on the elaboration of a legally binding convention on diplomatic protection.  He said his delegation aligned itself with the view concerning the close connection between the draft articles on diplomatic protection and those on responsibility of States for internationally wrongful acts.  Therefore, the elaboration of an international convention on one or both topics should be considered in tandem.

He said Malaysia was concerned about the provision of draft article 8 on the right of a State to afford diplomatic protection to stateless persons and refugees.  It was not a party to any treaty relating to stateless persons and refugees, and was therefore not bound by such instruments.  It surmised that the draft articles on diplomatic protection had not been fully and truly considered by many States because they were adopted fairly recently.  Further development of the subject would be best served by more reflection on the draft articles.

KONRAD BUEHLER ( Austria) said the position of his delegation was unchanged, as had been expressed in its response stated in the report of the Secretary-General.  It was not convinced of the usefulness of starting an elaboration of a convention based on the draft articles.  It was necessary for States to have some time to reflect on the draft text.  It would prefer to wait and have the item placed on the Assembly’s agenda for a few years.

THANISA NAIDU ( South Africa) said her country was concerned that the scope of the draft articles went beyond the codification of existing international law, and in some instances required more than States were able or prepared to offer with regard to diplomatic protection.  Specifically that related to the scope of draft article 19, which created a legal right to diplomatic protection.

She indicated that her country favoured the draft articles being negotiated as a convention, and hoped the work would proceed at the current General Assembly session.

TOMOHIRO MIKANAGI ( Japan) said the articles on diplomatic protection were a useful document that reflected customary international law, and included protection provisions that could be viewed as aiming at progressive development of the law.  Some other articles seemed premature, such as the one related to refugees and stateless persons and the one relating to recommended practice.  The International Court of Justice had referred to the draft articles in the case concerning Ahmadou Diallo (in New York), which could be interpreted as a sign of positive recognition.  Still, it was unclear about how useful the articles would prove in actual State practice.  Therefore, the articles should be left as they were to give States time to determine their usefulness.  Five years seemed an appropriate time for revisiting the question.

RODGER YOUNG ( United States) said he still had concerns that the treatment of some topics in the articles deviated from customary international law without a sufficient policy rationale.  Those concerns applied to continuous nationality, extinct corporations, protection of shareholders and the recommended practice of article 19.  There was a large body of well-established State practice pertaining to those issues, and since the articles deviated from settled customary international law there should be no effort to move towards a diplomatic conference for adoption of a convention on diplomatic protection.  Negotiation of a convention could undermine the substantial work already done.  It could reopen topics on which there was now agreement.  A large number of States may not ratify a convention.  Rather, the Assembly should take note of the articles in a resolution, as had been done on State responsibility.

WANJUKI MUCHEMI ( Kenya) said 10 years had passed since the topic was first identified as suitable for codification.  A convention on diplomatic protection should be elaborated, based on the draft articles.  The adoption of that instrument would codify customary practices, promote legal clarity on applicable rules of State practices, and promote the progressive development of international law on the subject.

MARCELO BOHLKE ( Brazil) said diplomatic protection had the greatest relevance to contemporary international law.  Most of the draft articles represented the codification of customary international law, and extended protection to refugees and stateless persons.  However, more specific criteria should be set out on situations involving multiple States.  The concept of article 19 on recommended practice presented a concern and should be revisited.  The development of a convention would help to clarify gaps in existing laws.

MARIA TELALIAN ( Greece) said her country had always supported the codification of the rules on diplomatic protection, as it considered that the topic was largely characterized by customary international law through consistent State practice and abundant international jurisprudence.   Greece had some concerns, specifically nationality of claims, and in particular nationality of a corporation; exhaustion of local remedies; and diplomatic protection regarding the crew of ships.  Those concerns did not, however, raise major objections of principle or any general reservation regarding the work accomplished by the Commission on the topic.

She said Greece considered the rules on diplomatic protection as drafted by the Commission were ripe for their inclusion into the body of international law.  It believed that the best way for the draft articles to acquire treaty status was for a diplomatic conference to be convened under United Nations auspices to discuss it.  She said the conference would offer opportunity to States to present their observations before the finalization of the text.

GENNADY V. KUZMIN ( Russian Federation) said his delegation supported the elaboration of the draft articles on diplomatic protection into a convention, even though it had some concerns about some of the provisions.  The text on diplomatic protection was an essential document.  His country had concerns about the provisions of article 1, on definition and scope.  On the draft article 5, on continuous nationality of a natural person, he said that although it was correctly drafted, Russia had problems with some of the provisions.  It also had problems with article 10, on the continuous nationality of a corporation.

CHANAKA WICKREMASINGHE ( United Kingdom) said his country would prefer that Member States pause for a period of reflection before making any decision about the negotiation of a convention on diplomatic protection.  As it had noted on a number of occasions, there were important elements in the draft articles that constituted proposals for the development of new law, for example, article 8 on the diplomatic protection of stateless persons and refugees.  While the United Kingdom might be willing to accept some of those elements as a desirable direction for the development of customary international law, it was not so comfortable with other aspects.

He said the relative novelty of the draft articles meant there had not been the opportunity to put the articles to the test of practical application in State practice, or in the decisions of international courts and tribunals.  Postponing any decision on the future of the draft articles would allow them to be consolidated and refined through their application in State practice, and by international courts and tribunals.

NEERU CHADHA ( India) said a number of articles still contained elements of concern and would have to be revisited, including article 8 referring to stateless persons and refugees, as well as article 19 on recommended practice.   Even so, the draft articles contributed to the codification of international law and they should be adopted as a convention.

ESMAEIL HAMANEH ( Iran) said the draft articles should not be elaborated into a convention, regardless of how valuable they were in clarifying the rules of international law on diplomatic protection.  States should be given more time to reflect on aspects of the articles and the commentaries, since many elements constituted a progressive development of international law and there were divergent views among States.  It would be more constructive to let States examine the articles until a general agreement emerged on the suitability of a binding instrument on the topic.  Also, the relationship between this topic and that of State responsibility should be clarified.

Commenting on individual articles, he said the Commission had eloquently stated in a commentary that States had a right to determine who their nationals were.  In exercising that right, States should avoid adoption laws that could give rise to dual or multiple nationality or to statelessness.  Extending diplomatic protection to corporations was unnecessary, since procedures for settling disputes in that area were largely regulated by bilateral and multilateral treaties between States.  Judicial authorities could not and should not treat their own citizens and foreigners differently, since equality before the law and non-discrimination were generally accepted principles.

VERÓNICA GÓMEZ ( Ecuador) said a convention should be drafted based on the draft articles.  Diplomatic protection was an important instrument for the protection for persons, particularly in the case of refugees and stateless persons.  Adoption of a convention on the matter would contribute to the codification and development of international law in the field.

Introduction of Drafts on Granting Observer Status

The representative of Kenya introduced the draft on observer status for the Regional Centre on Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa (document A/C.6/62/L.2).  The representatives of Sierra Leone, Lesotho and Nigeria spoke in support of the draft.

Uganda’s representative also endorsed the draft resolution and said the complete name of the resolution was “observer status for the Regional Centre on Small Arms and Light Weapons in the Great Lakes Region, the Horn of Africa and Bordering States”.

The representative of Italy introduced the draft on observer status for the Italian-Latin American Institute (document A/C.6/62/L.5).

Japan’s representative introduced the draft on observer status for the Energy Charter Conference (document A/C.6/62/L.3 and Corr.1).

The representative of Kazakhstan introduced the draft on observer status for the Eurasian Development Bank (document A/C.6/62/L.4).

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