Sixty-fifth General Assembly

Sixth Committee

16^th Meeting (AM)

Legal Committee Discusses Ways to Apply Law Commission Draft Articles

 

On Diplomatic Protection; Further Work Needed Before Decision

 

The 19 draft articles on diplomatic protection should be elaborated into a convention recommended by the International Law Commission, the representative of Chile told the Sixth Committee (Legal) today, as the Committee took up and completed its current consideration of the item, in a debate comparable to its discussion yesterday on State responsibility for internationally wrongful acts.

Speaking for the Rio Group of countries, he said the articles on diplomatic protection reflected both State practice and international norms.  Codifying them into a binding instrument would enhance the rule of law at all levels.  It would also contribute to the peaceful settlement of disputes and improve the protection of human rights for all persons, including refugees, stateless persons and State nationals working in the field of international relations.

The delegate of the Russian Federation agreed, saying the draft articles offered a good basis for drafting a convention.  They incorporated elements that supported the codification and development of international law, helping to define the protection, and also responded to issues such as the protection of corporations.  Some areas, such as the protection of shareholders and legal entities other than corporations, needed work.  But the draft articles as a whole were substantive, and in line with the tenets of State responsibility for internationally wrongful acts.

Libya’s representative was among those who held that elaboration of a convention on diplomatic protection could not be undertaken until agreement was reached on a convention covering State responsibility for internationally wrongful acts.  In addition, agreement on the issues involved in the area of State responsibility would help clarify those involved in diplomatic protection.

The representative of the United States, however, held that neither set of articles should be codified into a convention.  He said both were major contributions to the law and were valuable to States in their present form.  The process of negotiating a convention ran the risk of undermining the contribution they had already made to the law.  The best course was to let the articles inform, influence and “settle into” State practice.

Agreeing about the link between the articles on diplomatic protection and those on State responsibility, Portugal’s delegate said there was no need to link the elaboration of conventions to each other.  Concerns about the scope and content of certain articles could be discussed within the codifying body, and the two texts could eventually serve as parallel conventions for a major step towards the consolidation of law on international responsibility.

Finally, a number of delegations, including those of Malaysia and South Africa, held that the issue of diplomatic protection should remain within the province of national legislation.  They stressed that the exercise of diplomatic protection was a right of States and not an obligation.

Also speaking today were the representatives of Norway (for the Nordic countries), Australia (also for Canada and New Zealand), Germany, United Kingdom, Austria, El Salvador, Belgium, Venezuela, Iran and Cuba.

The Committee will meet again at 10 a.m. on Thursday, 21 October, when the question of transboundary harm will be taken up, along with the Programme of Assistance.

Background

The Sixth Committee (Legal) met today to take up the question of diplomatic protection.

Before the Committee is a report by the Secretary-General on diplomatic protection (document A/65/182 and Add.1) containing comments and information received from Governments on draft articles relating to diplomatic protection.  The articles were adopted in 2006 by the International Law Commission and disseminated to States for views on whether to elaborate them into a convention in line with the Commission’s recommendation.

The report says that written comments had been received from 11 States as of 20 July, with the addendum containing the views of the Netherlands.  The other States were Austria, Czech Republic, Estonia, France, Kuwait, Malaysia, Paraguay, Portugal, Saudi Arabia, United Kingdom and the United States.  Comments on the future of the articles are contained in section II of the report.  Comments on the articles themselves are contained in section III.

ÅSMUND ERIKSEN, (Norway), speaking for the Nordic countries, said the draft articles on diplomatic protection met the satisfaction of the Nordic countries, and the General Assembly should follow the recommendations of the International Law Commission and adopt the articles in the form of a convention.  Doing so would “enhance legal clarity and predictability” on this issue.

He observed that some States viewed the issue as closely linked with the topic of responsibility of States for internationally wrongful acts, and thus they should be treated similarly.  Although there were shared characteristics between the two topics, and it was therefore advantageous that both topics take the form of conventions, he stressed that it was feasible that the draft articles could adopt different approaches with regard to their final forms.

ALEJANDRA QUEZADA ( Chile), speaking for the Rio Group of countries, said this topic was one of the most relevant issues for the codification and the development of international law.  She urged that all States work together so that the International Law Commission’s contribution may lead to international instruments.

Regarding the adoption of a convention on diplomatic protection, she said many articles reflected frequent State practice and international norms.  It was thus important to work towards an international convention which would support the harmonization of State practice and jurisprudence.  She called for a convention on diplomatic protection so that the rule of law could be enhanced at all levels and contribute to the peaceful settlement of disputes, as well as improve the protection of human rights for all persons, including refugees, stateless persons and State nationals working in the field of international relations.

JENNA DONSKY (Australia), speaking also for Canada and New Zealand, said that the articles reflected the large body of State practice in the area and were thus a significant contribution to the law of diplomatic protection in their present form.  It would not be advisable to adopt a legally binding instrument on the matter at present, since the issue was closely tied to State responsibility and there was no agreement on a convention in that regard.

She said the extent to which the draft articles contained elements related to the development of customary international law beyond mere codification was of concern since the elaboration of a convention could reopen the debate on the articles.  That would quickly undermine the Commission’s work.  Rather, as the articles clarified and developed customary international law on diplomatic protection, they would serve the important function of informing and influencing State practice over time.

ABDELRAZAG EL MURTADI ( Libya) said the articles should be codified as quickly as possible.  However, the important topic of diplomatic protection was closely related to the articles on State responsibility, in substance as well as in form.  Until there was agreement on a State responsibility convention, work on a diplomatic protection convention should not begin.  Rather, efforts towards the elaboration of a convention on State responsibility should be intensified; that, in addition, would clarify the issues relating to diplomatic protection.

CHRISTOPH RETZLAFF ( Germany) said he was not convinced of the need for a convention on diplomatic protection but was open to joining consensus.  On the legal core of the issue, it was to be noted that diplomatic protection was a right of States, not of individuals.  Furthermore, it was a right of States and not a duty.  Even where a State was under a constitutional obligation to exercise diplomatic protection in favour of one of its nationals, international law left a large margin for how a State did so.  That was part of customary international law and the situation was adequately reflected in the second article.  Any future codification in the area should not go beyond that well-established rule.

Further, he said that any elaboration of a convention based on the draft articles should include more consideration of the question of a “genuine link” between the individual and the State exercising the right of diplomatic protection.  In the “global world” with people often moving from State to State and frequently for extended periods, the initial link with the country of nationality may be severed, so that it was no longer clearly unique or “genuine”.  A convention intended to address current legal problems of diplomatic protection would need to take into account that feature of current times.

He said article 19 containing recommendations would need to be revisited if the articles were to be elaborated into a convention.  A legally binding instrument must be cast in terms of rights and obligations, not proposals, if it were to serve its purpose.

NATALIA SILKINA ( Russian Federation) commended the International Law Commission’s draft articles on diplomatic protection.  They incorporated elements that supported the codification and development of international law.  They also played an important role in defining the protection of diplomats, as well as refugees and displaced persons.  These articles also responded to such issues as determining the area of protection and the rights of a State to implement these tenets as well as the issue of protection of corporations.

Some areas needed further work, such as the issue of the protection of shareholders and legal entities other than corporations.  However, she said, the draft articles on the whole were substantive and in line with the tenets of State responsibility for internationally wrongful acts.  The draft articles offered a good basis for drafting a convention and her delegation was willing to look at other documents that might make these tenets binding as well.

HENRY SUN AGONG ANAK DAGANG ( Malaysia) said the exercise of diplomatic protection should remain within the sovereign prerogative and integral discretion of a State.  It would therefore be premature to elaborate an international convention on this topic, as there was an absence of consensus on the topic of the responsibility of the State for internationally wrongful acts.  He said he agreed with the Special Rapporteur that the fate of the draft articles on diplomatic protection was “closely bound” with the fate of the draft articles on State responsibility.

Continuing, he said an attempt to elaborate a convention at this time would risk undermining the work of the International Law Commission, especially if the resulting convention was not ratified by a significant number of States.  He stressed, in conclusion, that it was not necessary or desirable to begin discussions or negotiations towards an international instrument on this issue. 

NICK MINOGUE ( United Kingdom) said that the articles on diplomatic protection and the draft articles on the responsibility of States in internationally wrongful acts were closely bound together; in the absence of a consensus on State responsibility, any decision to begin negotiating a convention on diplomatic protection would be “premature”.  The draft articles on diplomatic protection went beyond the codification of current law, containing elements which would contribute to progressive development of customary international law.  In his view, this risked opening up a debate on the articles which might undermine the important work and commentary that had already been undertaken. 

He said that some of the progressive development of law conflicted with his country’s current practice and thus raised some concerns, specifically on the absolute discretion of a State to decide whether or not to exercise diplomatic protection.  The elaboration of a convention should not be seen as “the only possible successful conclusion” of the draft articles.  Rather, the final form should best serve the development of the law.  In this regard, he urged that the draft articles be allowed to inform and influence State practice, without moving towards negotiating a convention.

DARIN JOHNSON ( United States) reiterated his view that no further action should be taken with regard to the draft articles on diplomatic protection at present.  He said the articles reflected the large body of State practice in the area and were a major contribution to the law, and thus valuable to States in their present form.  However, it was of concern that some articles were inconsistent with well-established customary law.  As with the articles on State responsibility, the process of negotiating a convention ran the risk of undermining the substantial contribution the articles had also made to the law.  Therefore, it was best to allow time for the articles to inform, influence and “settle into” State practice. 

MATEUS KOWALSKI (Portugal), speaking for Miguel de Serpa Soares, Director of Legal Affairs in the Foreign Affairs Ministry of Portugal, said he favoured the elaboration of a draft convention on diplomatic protection based on the 19 draft articles the Law Commission had adopted.  The fact that the work had been completed in a mere 10 years proved that the subject was ripe and adequate for codification.

He said that while there certainly was a link between the articles on diplomatic protection and those on State responsibility, there was no need to link the timing of the elaboration of conventions on those issues to each other.  Concerns about the scope and content of certain articles could be discussed within the body preparing the convention.

Ultimately, he said, the draft articles on diplomatic protection and those on State responsibility should be elaborated into parallel conventions since the issues traditionally went “hand in hand” together.  Once those conventions were adopted, a major step would have been taken for the consolidation of the law on international responsibility.

ULRIKE KÖHLER ( Austria) said that her country’s position remained unchanged from previous sessions, and these views were included in the Secretary-General’s report on the issue.  She was not convinced that work on an elaboration of a convention should start immediately.  Because of the short amount of time regarding the second reading, she believed that States needed to have more time.  Her preference was to keep the item on the agenda for a few years so that the necessary steps could be taken through various working methods, among them a codification committee.  This would offer States appropriate time to review and consider the draft articles.

CLAUDIA VALENZUELA ( El Salvador) said that her country attached great importance to this item.  Diplomatic protection was a matter of greatest importance in the codification and development of norms for international law.  She said she welcomed the draft articles, which were the result of a lengthy process started by the International Law Commission in 1995.  It was a “classic in international law”, and she said that action on this topic must ensure consistency.  Consideration should be given to provisions regarding persons when there were multiple nationals and when a third State was involved.  It was also important to include customary practice in diplomatic practice. 

She said diplomatic protection for stateless persons and refugees was a complex legal issue.  It was essential to acknowledge the human and social background of the persons as they were in a particularly vulnerable situation, either because they were not receiving protection from the State they belonged to, or were stateless.  She said diplomatic protection was an effective instrument for individual rights; these draft articles did not just reflect the existing situation but could lead to progress. 

Her country was “no foreigner in diplomatic protection”; the right was enshrined in El Salvador’s Constitution and foreigners in El Salvador could invoke diplomatic protection in the appropriate situation.  She said care was taken to ensure that actions were in harmony with the “humanistic spirit” of her country’s Constitution, which recognized the human being. 

She said in conclusion that the International Law Commission’s contributions were significant steps and that the draft could lead to a convention supporting the right of all States to protect their nationals in certain situations.

JEAN-CÉDRIC JANSSENS DE BISTHOVEN ( Belgium) said he was not convinced about the point of transforming the articles on diplomatic protection into a convention.  They served their purpose in their present form, as proven by the reference to them in a wide body of international jurisprudence.

ADELA LEAL PERDOMO ( Venezuela) said the articles aimed to codify the rules of diplomatic protection by taking into consideration international customary law as well as relevant jurisprudence.  They would be much stronger as a convention.  Some of them would need clarification on points such as the relationship between diplomatic protection and consular assistance, or the timing of submitting complaints.  She said the articles did clarify other issues, such as the difference between corporations and shareholders and who would be entitled to diplomatic protection if the articles were to be elaborated into a convention.

Overall, she continued, the articles would need to be closely examined during the elaboration process.  For example, in their present formulation, those relating to stateless persons gave no indication of how such persons could gain access to diplomatic protection.  The articles should refer to diplomatic protection as a State right but also as an obligation serving as a basis for the development of standards such as reparations.

ALIREZA KAZEMI ABADI ( Iran) said that the consideration of diplomatic protection was a complex process, since it involved both the rights of individuals and the rights of States.  Thus any legal regime on diplomatic protection needed to correspond with the delicate balance between these two entities.  He said it was highly doubtful the current draft articles met that requirement.

He commented that the time taken in drafting these articles was shorter than for others undertaken by the International Law Commission; he asked if that was because they did not seem to reflect customary international law, notably with regard to diplomatic protection of stateless persons or individuals with dual nationality.  The diverging views of States on this issue, he said, pointed to the need for additional time to consider the draft articles; it was premature to elaborate them into a legally binding instrument.  It might be beneficial to annex them to a General Assembly resolution.

LESTER DELGADO SÁNCHEZ ( Cuba) said it was important for the draft articles to be elaborated into a convention which would contribute towards the codification of international law, but it was regrettable that the mechanism of diplomatic protection had been engaged as a way for certain States to pressure other States.  He said that not all international courts gave equal value to customary rules contained in case law.  This limited the criteria of the exercise of diplomatic protection for, among others, businesses and commercial ventures, as well as shareholders.

He said the exercise of diplomatic protection also was an expression of the sovereign rights of States and it guaranteed the protection of fundamental and human rights, in particular when pertaining to refugees and displaced persons.  A convention could therefore contribute to the strengthening of the rule of law on both national and international levels.  Because the aim of the draft articles on diplomatic protection was to protect people from illegal acts by States, it needed to be given the same importance as the draft articles on the responsibility of States in internationally wrongful acts.  He urged that a working group on this topic be convened towards developing consensus.

DIRE TLADI ( South Africa) said draft article 19 on recommended practice should be reformulated since it could potentially be used to make an argument that States were required to extend diplomatic protections to individuals.  Even in situations where individuals were injured by third-party States, diplomatic protection was exercised as a right and not as an obligation.  He said that in his country, nationals had a right to request diplomatic protection and they had a right to have the request rationally considered by the State, but the obligation did not go further.

Laws on diplomatic protection should be regulated at the national level, he added, and not the international, and the articles should definitely not refer to State obligations in the area.  The appropriate remedy for complaints about State practice in the area was the continued development of international law on such matters.

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