Sixty-eighth General Assembly

Sixth Committee

15^th Meeting (AM)

Noting Key Role in International Law, Sixth Committee Delegates Disagree

 

over ‘Fate’ of Drafts on State Responsibility, Diplomatic Protection

 

Despite the more than 40 years it had taken the International Law Commission to finalize its draft articles on State responsibility for internationally wrongful acts, delegates could still not find consensus on whether to codify them in a convention, as the Sixth (Legal) Committee began deliberations on the matter.

While virtually all delegates agreed that the draft articles were a key contribution to the development of international law and being broadly used as reference by international and national tribunals and Governments, they differed on when and what the next step for the texts should be.

Several delegations called for an elaboration of a convention, with Iran’s representative stressing that the rules of State responsibility should be clear and known to all subjects of international law.  The only way to bring that to fruition was to crystallize the texts in the form of a treaty.  Concurring, Indonesia’s representative said an international conference would offer the opportunity to foster ownership of the subject.

However, the United Kingdom’s delegate said that, while aspects of the articles were influential, it was premature to say that they completely reflected settled customary international law.  Pressing ahead to a convention would risk the coherence of the articles. 

In the same vein, she noted that the fate of the draft articles on diplomatic protection, the other topic of today’s deliberations, was closely bound to that of the articles on State responsibility.  Because there was no consensus for a convention on State responsibility, it was too soon to begin negotiating a convention on the articles on diplomatic protection.  The most appropriate final form of the articles, she emphasized, was not necessarily a convention, but that which best served the development of the law.

On the other hand, the Philippines’ representative, noting the long historical relevance of diplomatic protection, said that there had been instances of its misuse as a pretext for intervention in another country’s domestic affairs. In order to avoid the mistakes of the past, such customs should be codified and clarified through a future convention.

Also calling for a convention, Cuba’s delegate said that diplomatic protection was aimed at protecting the rights of persons who faced a wrongful act by a foreign State, as provided for in the draft articles on the responsibility of States.  Both should be given equal importance in the observation of international law.  He recommended that the draft be sent to a working group that would finalize details of a future convention on diplomatic protection.

Also speaking today, on the responsibility of States for internationally wrongful acts were delegates of Australia (also on behalf of Canada and New Zealand), Denmark (on behalf of the Nordic countries), Cuba (also on behalf of CELAC), Belarus, United States, Guatemala, Portugal, Saudi Arabia, India, Chile, Israel, Russian Federation, Malaysia and Venezuela.

Also participating in deliberations on diplomatic protection were representatives of Cuba (on behalf of CELAC), Norway (on behalf of the Nordic countries), Saudi Arabia, United States, Portugal, Zambia, Eritrea, Chile, Russian Federation and Iran.

The Sixth Committee will next convene tomorrow, 22 October at 10:00 a.m. for consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm and would also take up the law of transboundary aquifers.

Background

The Sixth Committee (Legal) met today to take up the matter of the responsibility of States for internationally wrongful acts.  It had before it two reports of the Secretary-General on the topic: Comments and information received from Governments (documents A/68/69 and A/68/69/Add.1) and Compilation of decisions of international courts, tribunals and other bodies (document A/68/72).

It would consider the report of the Secretary-General on Diplomatic protection: comments and information received from Governments, and its related addendum (documents A/68/115 and A/68/115/Add.1).

Statements on the responsibility of States

ANASTASIA CARAYANIDES ( Australia), speaking also for Canada and New Zealand, said that it would not be helpful to try to negotiate the draft articles on the responsibility of States for internationally wrongful acts as a convention.  As they stood, they guided international bodies and Governments through their analysis of sensitive issues and efforts to find resolutions in international law. She expressed concern that their influence might be diluted and the work of the International Law Commission undermined if elaborated into a convention.  “It is more important to preserve the authority of the articles in practice than to codify them in a convention that may not achieve universality,” she stressed.  However, she supported the adoption of a resolution that would endorse the articles and attach them as an annex.

Christian Ejby Stroem Karstensen (Denmark), speaking for the Nordic countries, noted that between February 2010 and January 2013 there had been 56 more cases in which the State responsibility articles were referred to by a wide array of international courts, tribunals and other bodies — both in terms of subject matter and in terms of geographical scope.  Further, whether the articles were invoked as established rules or as part of customary international law, it bore testament to their strong and authoritative impact on international dispute settlement.

The Nordic countries would continue to support the draft articles on State responsibility, which had been widely accepted since their adoption, he said.  The articles were in the strongest possible position as an annex to a resolution, an approach recommended by the International Law Commission.  Despite the different views on specific details, the articles reflected a widely shared consensus.  A diplomatic conference aimed at producing a convention could jeopardize the delicate balance established in the articles.  For those reasons, it was not, for now, advisable to embark on negotiations on a convention on responsibility of States for internationally wrongful acts.

TANIERIS DIEGUEZ LA O ( Cuba), speaking for the Community of Latin American and Caribbean States (CELAC), underscored that the draft articles, a key contribution to the development of international law, had been broadly used as reference by international and national tribunals.  She pointed out that, as recommended by the International Law Commission, Governments must move towards a convention on the draft articles.  Negotiating a convention on the responsibility of States for wrongful acts on the basis of those articles would do much to close the gaps in international law on the matter.  Further, establishing a working group was the right way to go.  More so, the practice and development of the responsibility of States would have a positive impact on diplomatic protection.

ILYA ADAMOV ( Belarus) said the draft articles had already taken their rightful place through the practice of courts and other legal bodies.  The main matter boiled down to expediency and further work on the document.  Noting the need to stick to the provisions of the articles which had been overwhelmingly referred to by courts and diplomats, he said the current situation was characterized by a degree of selectivity.  While drafting a convention could strengthen the work on the subject, the articles could also be subject to radical transformation, which would affect their legal significance and the balanced nature of the document.  In that regard, he said there was a need to pay attention to Qatar’s proposal on the adoption of a General Assembly declaration on the basis of the draft articles which would not rule out further work on an appropriate treaty.  Such a declaration would facilitate the work of States on the document.

TANIERIS DIEGUEZ LA O ( Cuba), emphasizing that the draft articles embodied customary law and practice, expressed support for the elaboration of a convention on their basis.  She observed that some countries were reluctant to codify those norms in the belief that opening them up to negotiation might upset the delicate consensus that currently existed.  However, what was impeding such an elaboration was that some States, noting the absence of required international obligations on the matter, continued to evade their responsibilities and act with impunity.  She favoured reaching a convention without affecting the integrity of the delicate balance in the current texts.  That would establish mandatory criteria for States, would contribute to the elimination of such wrongful acts and could protect States subjected to such acts.

MATEUS KOWALSKI ( Portugal) said that the period of maturation of the draft articles had reached a crucial point.  There was an impressive number of case law and literature supporting a collective assessment of the draft articles as well as of its great merits and imperfections.  It was time to take a definitive stance on the future of the draft articles.  He concurred with others that the draft articles were ready to be submitted to a diplomatic conference with a view to concluding a convention.  In light of the stability enjoyed by the draft articles, there should be no reason to fear “an extensive remake of the International Law Commission project”, he said in conclusion.

STEVEN HILL ( United States) said that his delegation continued to believe the draft articles were most valuable in their present form.  There was little to be gained in terms of additional authority or clarity through the negotiation of a convention.  As evidenced by the draft articles’ application by international courts and tribunals, they already had tremendous influence and importance.  Likewise, those articles had proven to be a useful guide both on what the law was and on how the law might be progressively developed.  A number of States in their written comments had expressed concern that the process of negotiating a convention could risk undermining the work undertaken by the Commission over several decades, particularly if the resulting convention deviated from important existing rules or did not enjoy widespread acceptance.  The better course would be to allow the draft articles to guide and settle the continuing development of the customary international law of State responsibility.

Ana CRISTINA RODRÍGUEZ Pineda( Guatemala), enumerating many reasons she favoured concluding a convention based on the draft articles, said that a convention would create legal certainty.  Further codification of the articles would strengthen multilateralism, protect human rights and strengthen international law, among others.  The norms contained on exceptions were extremely important to the international tribunals that relied on them.  A convention would provide those bodies with clear guidelines to avoid differing interpretations and would also support the United Nations Charter.  In recent years, States had been unable to reconcile their interests with international law.  Non-State actors were increasingly more involved in conflicts. In that regard, a convention could also be useful.  She urged that a binding instrument be established.

MATEUS KOWALSKI ( Portugal) said that the period of maturation of the draft articles had reached a crucial point.  There was an impressive number of case law and literature supporting a collective assessment of the draft articles as well as of its great merits and imperfections.  It was time to take a definitive stance on the future of the draft articles.  He concurred with others that the draft articles were ready to be submitted to a diplomatic conference with a view to concluding a convention.  In light of the stability enjoyed by the draft articles, there should be no reason to fear “an extensive remake of the International Law Commission project”, he said in conclusion.

Ms. AL NASER ( Saudi Arabia) said that the responsibility of States deserved to be embodied in a convention.  That would be the only way to achieve legal certainty and to define the scope of the law.  In that regard, greater attention should be paid to the domestic laws of States, and how to harmonize them into international law while defining internationally wrongful acts and States’ responsibility for them.

AVINASH PANDE (India) noting that the draft articles’ concepts were less complicated for application, pointed out such an example was in the concept of State crimes which had been replaced by the concept of serious breach of an obligation arising under a peremptory norm of general international law.  Some of the most difficult articles had been refashioned to exhibit sensitivity to States’ needs in difficult circumstances, had several merits and presented a delicate balance.  They addressed secondary rules of State responsibility, which would come into play only in case an internationally wrongful act, as defined by a primary rule, had been committed.  In that regard, international law was still striving to achieve the type of universality essential in different fields.  Institutional developments and the development of the international legal system could not be rushed without risking counterproductive effects.  Thus, it would be prudent to maintain the careful balance in the text of draft articles that the International Law Commission had struggled for more than forty years to achieve. 

RUTH TOMLINSON ( United Kingdom) said that in many areas of international law, aspects of the articles had been and continued to be influential.  Judgments of both international and national courts and tribunals had made reference to them, as did Governments in formulating their legal views.  However, the articles’ breadth, in both scope and formulation, meant that it was premature to say that they reflected, in their entirety, settled customary international law or even a settled consensus of views among States.  Pressing ahead to a convention would risk provoking divergences and differences of views and thereby threaten the coherence they sought to instil.  She suggested that the Committee acknowledge their importance but defer further discussion until it was clear that the time was ripe for further action.

José Antonio Gonzalez( Chile) said the adoption of a convention should be the final stage of the articles.  Such an adoption would not mean denying the value of other formal sources of international law, particularly custom.  On the contrary, much of the draft articles were part of customary international law, so much so that many of them were invoked by international tribunals.  Nevertheless, a convention would provide a greater degree of legal certainty.  Furthermore, it was not appropriate for the current subject to be considered every three years by the Committee without progress or a resolution adopted on it.  Recognizing that there remained aspects that merited States’ observation, he said the Committee could, in ad hoc or working groups, identify existing problems in order to consider them at a later date in a conference or a similar forum, eventually adopting them in the form of a convention as proposed by the International Law Commission.  In addition, the possibility of adoption in the form of a declaration could also be considered, so as to generate progress on the decisions adopted in 2001 and to take a step toward the final objective. 

OHAD ZEMET ( Israel) said that the law on State responsibility served to enhance both the rule of law and peace and stability among nations.  However, embarking on negotiations at present might unravel the fragile balance that had been struck in the drafting of the articles.  He echoed the stance taken by other States and called for the progressive development of law and an organic development rather than through multilateral treaty negotiations or international conferences.  “The articles, in their non-binding form, have clearly shown themselves as a useful guide for States and practitioners, and it is […] difficult to see what would be gained from the adoption of a convention at this juncture,” he said in closing.

SERGEY Leonidchenko ( Russian Federation) said the Secretary-General’s report had confirmed that the articles were being applied in practice as a norm of international customary law.  Despite some provisions that required additional work, the articles on the whole represented a through and balanced document and provided a good basis for further work.  Since the goal of the Commission was to promote the progressive development and codification of international law, and also in view of the General Assembly resolution that had called for States attention to the document, he said it was worth considering a draft convention.  In that regard, he expressed support for an international conference with a view to drafting that instrument.

HOSSEIN GHARIBI (Iran), noting that it had taken more than forty years for the Commission to finalize the current draft articles, said that many of their provisions expressed customary international law and were consistent with a number of authoritative pronouncements of international case law.  “State responsibility is the backbone of international law and a cornerstone of the rule of international law in international relations,” he said.  The rules of State responsibility should be clear and known to all subjects of international law.  The only way to materialize that would be to crystallize the rules in the form of a well elaborated convention on State responsibility which could contribute to a better application and promotion of international law.  The time was ripe to convene a diplomatic conference to adopt an international convention on State responsibility.

FARHANI AHMAD TAJUDDIN ( Malaysia) said the draft articles, as comprehensive as they were set out to be, should only be used to guide States.  States needed to be ready to voice their concerns on the “onerous obligations” of the draft texts.  Turning to the relevant text which provided for the ultra vires act of an organ, she said that adopting such an obligation would require States to assume the conduct or wrongdoings of an organ or a person beyond the power authorized to such organ or person by those States.  If a State was found to be in breach of that obligation, that would entail, among others, great financial implications to the State concerned.  For those reasons, further consultation among States was needed, and the draft articles should remain as a guide.

ARY APRIANTO (Indonesia), welcoming the sustained discussion of the draft articles, said the responsibility of States for internationally wrongful acts was instrumental to international law and relations between States, especially for the peaceful resolution of conflicts.  He said continuing the discussion through an international conference, with the aim of establishing a convention on the matter, would offer the opportunity to discuss the articles in depth and foster ownership of the subject.

GLENNA CABELLO DE DABOIN ( Venezuela) expressed concern that the Committee had not been able to decide on what next do with the work done by the International Law Commission.  The item was of primary importance towards preserving international order and relations among States and strengthening the rule of law at the international level.  As such, more concrete initiatives should be decided on at the current session.  The adoption of a declaration or the convening of an international conference to adopt the articles would be a provisional prior step toward the definitive codification of all the work done by the Commission. “The work by the Commission should not be left in a vacuum.”  A call for a conference did not mean that some points of disagreement could not be agreed upon at a later time.

Statements on Diplomatic Protection

Oscar León González (Cuba), speaking for CELAC, said that the International Law Commission had urged Governments to adopt a convention based on the articles on diplomatic protection so that harmonization of national law with the draft texts could be permitted.  Such a convention would address existing gaps in international law and would promote legal clarity and predictability.  Further, it would enhance the rule of law in the areas of human rights, including the protection of refugees and stateless persons and guarantee the right of every State to protect its nationals.  He said that the proper path was to establish a working group of the Sixth Committee toward a possible international convention on the basis of the draft articles.

MARIA BERGRAM AAS ( Norway), speaking on behalf of the Nordic countries, said that the draft articles on diplomatic protection had made an important contribution to general international law in the field of diplomatic protection.  However, noting the diverging views between Member States on the draft articles, including the question of their final form, she said the Nordic countries stood ready to consider all options that would safeguard the core elements of the articles and ensure their position as a source of inspiration and guidance for States in exercising the right to diplomatic protection.  Attempts to negotiate a convention might open up a debate that could undermine the already substantial contributions of the draft articles.  In that regard, she recommended that the draft articles be taken note of and be fully taken into consideration as guidance and inspiration for State practice.

Ms. AL SHEBEL ( Saudi Arabia) said that the importance of diplomatic protection was growing with the development of modern technology, which had led to new forms of international relations.  That, in turn, had led to an increase in international injury via those technologies.  States had a right to follow their nationals abroad and those nationals were entitled to the right to protection from their countries.  Diplomatic protection could protect individual rights and State interests in the international community.  The rights and interests of the injured person must also be considered.  Stressing the importance of issuing a convention on diplomatic protection, she said that it should be elaborated in accordance with international law without breaching national law.

STEVEN HILL ( United States), reiterating his delegations’ previous statements, said that no further action on the draft articles should be taken at the current time.  Where the draft articles reflected the large body of State practice in the area, they represented a major contribution to the law of diplomatic protection, and were thus valuable to States in their present form.  However, a limited number of articles were inconsistent with well-settled customary international law.  Similar to his position on the draft articles on State responsibility, he expressed concern that the process of negotiating a convention would risk undermining the substantial contribution already achieved by the draft articles.  The better course was to allow the draft articles some time to inform, influence and settle State practice in that area.

MATEUS KOWALSKI ( Portugal) said that the completion of 19 draft articles on diplomatic protection by the International Law Commission in less than ten years proved that the topic was ripe and adequate for codification and useful to international relations.  Diplomatic protection had an important function as a device of last resort in the protection of human rights.  Citing the Special Rapporteurs on the topic, he said, “`Diplomatic protection remains an important weapon in the arsenal of human rights protection.’”  Although his delegation had disagreed with certain aspects of the articles during Sixth Committee debates, he said that they were suitable for an international convention.  Issues on which there was disagreement could be discussed within a body preparing a convention.

KASWAMU KATOTA ( Zambia) said that any acts of violence against diplomatic agents and other internationally protected persons created a serious threat to the maintenance of normal international relations.  The Vienna Convention on Diplomatic Relations had established that the premises of the mission were inviolable and that the host State was under a special duty to protect the premises of the missions.  There was a need to increase efforts to protect diplomats and consular officials and to prevent attacks against them, including arbitrary arrests from security officers of host countries.  In addition to existing international legal instruments, he said his delegation welcomed all measures that were necessary to protect diplomatic representatives and looked forward to the negotiations of a convention on diplomatic protection.

Igor Garlit Bailen(Philippines), noting the long historical relevance of diplomatic protection, said that regrettably, there had been instances of its misuse through use of force as a pretext for intervention in another country’s domestic affairs.  Diplomatic protection was a delicate and sensitive matter, notably in the case of a State taking action against another State on behalf of an injured national.  Such protection was a discretionary, sovereign prerogative, which existed under customary international law.  In order to avoid the mistakes of the past, such customs should be codified and clarified through a future convention.  He expressed interest in clarifications of several draft articles, including the relevant text that addressed seafarers, of whom a quarter in the world today were Filipino.

LEON GONZALEZ ( Cuba) said a convention would make it possible to harmonize existing law, and contribute to the codification of international law and to the consolidation of norms of conditions that must be in place for a request of diplomatic protection.  The recognized applicability in that regime to refugee and stateless persons had contributed to the protection of those highly valuable groups and to strengthening the rule of law at international level.  The draft articles closely related to the responsibility of States.  Diplomatic protection was aimed at protecting the rights of persons facing a wrongful act by a foreign State provided for in the draft of responsibility of States.  Both should be given equal importance to contribute to the observance of international law.  To promote the broadest possible consensus on the operationalization of those principles, he recommended that the draft be sent to a working group, which would then finalize details on a future convention on diplomatic protection.

SEMERE AZAZI ( Eritrea) said that States must fulfil their obligations under all relevant instruments to allow foreign representatives to accomplish their official duties peacefully.  Diplomacy in the twenty-first century required more transparency, access and openness to the general public.  Those with criminal intent had taken advantage by putting diplomatic personnel at risk.  Left unchecked, such actions could prevent diplomats, especially from developing countries, from carrying out their duties and from properly and safely performing their tasks.  Therefore, more vigilance and cooperation were required from all sides to prevent criminal acts and to ensure the protection of diplomatic and consular missions.

RUTH TOMLINSON ( United Kingdom) said that the fate of the draft articles on diplomatic protection was closely bound to that of the articles on State responsibility.  Thus, in the absence of consensus on the elaboration of a convention on State responsibility, a decision to begin negotiating a convention on diplomatic protection was premature.  Further, the straightforward codification of the current law contained elements that would amount to progressive development of customary international law on the topic.  Her delegation did not view some of those elements favourably.  The most appropriate final form of the articles was not necessarily a convention, but that which best served the development of the law.  She suggested further consideration be given to the matter until it was clear that the time was ripe for further action.

José Antonio Gonzalez( Chile) said diplomatic protection was one of the most important items in the codification and progressive development of the norms of international law.  For that reason, the final stage of the draft articles should be the adoption of a convention.  That would provide for certain greater legal certainty and would be the appropriate instrument to reflect the new contributions of international law.  Noting the seven years since adoption, in which States were considering the draft text, he said that while his delegation was of the view that the convention on the responsibility of States should have greater priority, it stood ready to work on the convention on diplomatic protection.

SERGEY Leonidchenko ( Russian Federation) said that the articles on diplomatic protection had reached the best possible correlation in codifying existing States’ practice and progressive development of the international law.  They were balanced and satisfied a number of questions associated with the matter, in particular, the definition and scope of application of diplomatic protection; the right of States to exercise it; the citizenship of persons subject to it; and protection of corporations.  As an independent document, the draft successfully supplemented the draft articles on responsibility of States.  While the draft articles could serve as the basis for elaborating an international convention on diplomatic protection, he was also prepared to examine other ways to make them legally binding, also in the context of the “fate” of the articles on the responsibility of States.

HOSSEIN GHARIBI ( Iran) said any legal regime on diplomatic protection should observe a delicate balance between the rights of individuals and the rights of States.  It was doubtful that the present set of draft articles as proposed by the Commission could satisfy those concerns.  They had been adopted in a considerably shorter period of time compared to the Commission’s other works.  Perhaps it was for that reason that some of the draft articles could not be deemed reflective of customary international law.  Also, the present draft articles had left some areas of diplomatic protection unanswered.  Member States’ differing views on the future of the texts were indicative of Governments still needing more time to further assess how much the articles reflected State practice and how the articles were reflected in State practice.  It was still not ripe enough to elaborate the draft articles into a legally binding instrument until and unless certain concerns of Member States were duly met. 

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