Tackling State Responsibility, Diplomatic Protection Drafts, Sixth Committee Delegates Argue over Elaborating Texts into Conventions
Scope, Application of Universal Jurisdiction Unresolved after 10 Years, Speakers Say, as Debate on Principle Begins
As the Sixth Committee (Legal) today took up two agenda items, the responsibility of States for internationally wrongful acts and diplomatic protection, delegates held a vigorous debate on the question of elaborating the draft articles addressing both principles into legally binding conventions.
With the Secretary-General’s reports on those topics before them — States responsibility: document A/74/83 and document A/74/156; and diplomatic protection: document A/74/143 — delegates praised the rigorous methodology and expertise of the International Law Commission in producing the draft articles that addressed States responsibility and diplomatic protection.
Greece’s delegate noted that the draft articles on States responsibility dealt with one of the most important and delicate topics of international law and had become the most authoritative statement available on that issue. Ideally, it should take the form of an international convention. However, the elaboration of a convention should not jeopardize the delicate balance of the text, some of which contained important compromises on complex and sometimes controversial legal questions.
Speaking also for Canada and New Zealand, Australia’s representative strongly cautioned against altering the status quo, emphasizing that subjecting the articles to diplomatic negotiation would risk disagreement between Member States over different aspects. This could dilute and undermine the articles’ influence and the decades of careful deliberation that the articles represent, he continued.
However, the Federated State of Micronesia’s delegate found the failure to take meaningful steps in the direction of a convention worrisome. That signals that the General Assembly does not accord the articles sufficient respect, she said, also pointing out that the articles are silent on the special circumstances of small island developing States, which have limited capacity to monitor unlawful conduct by foreign or private persons or entities.
Cuba’s representative stressed: “Justice does not always respond to just values,” as she voiced strong support for the adoption of such a convention. What delays the adoption of a convention is the attitude of some Governments that continue to evade their responsibility and act with impunity reducing justice to “the arithmetic of what two judges decide in a court of three”, she said.
Turning to the topic, diplomatic protection, she also expressed support for a convention to be elaborated on that principle, which offered protection of the fundamental freedoms of individuals, including highly vulnerable groups such as refugees and Stateless persons. A convention would harmonize and integrate all existing practice and jurisprudence.
However, the delegate of the United States said, certain draft articles are inconsistent with well-settled customary international law. Highlighting article 15 on exceptions to the local remedies rule, he noted that his country had opposed this standard as too lenient. Any articles considered in a convention should reflect well-established customary international law.
Diplomatic protection, Portugal’s representative pointed out, has an important function as a subsidiary, last-resort mechanism for a State to protect the human rights of its nationals. Noting that both diplomatic protection and State responsibility traditionally “go hand-in-hand”, he expressed hope that the draft articles on both might soon be part of parallel conventions.
While Cameroon’s delegate agreed that diplomatic protection now exists in parallel with State responsibility, he also outlined the divergent interpretations of that protection. It is necessary to clarify its scope to avoid it being abused for interference into the internal affairs of States under the pretext of human rights, he emphasized.
The Committee also began consideration on the scope and application of the principle of universal jurisdiction, for which it had before it the Secretary‑General’s report (document A/74/144).
Gambia’s representative, speaking for the African Group, underscored that the matter had been before the Committee since February 2009. Expressing concern about the abuse of universal jurisdiction — particularly over African officials, he underlined that it was crucial to address the inclination of non-African States to apply universal jurisdiction on Africans without the consent of African States.
However, Liechtenstein’s delegate stressed that if States are unwilling or unable to bring perpetrators to account, other States with no direct connection to the crime should fill the gap based on universal jurisdiction. He highlighted the important role played by the International, Impartial and Independent Mechanism for Syria and the Independent Mechanism for Myanmar, underscoring that such processes can produce paths to accountability.
At the beginning of the meeting the Sixth Committee revisited the matter of adopting the remainder of its programme of work for the seventy-fourth session, which had been delayed due to continuing issues with the restrictions placed on certain delegations by the host country. (For background, see Press Release GA/L/3597.)
Michal Mlynár (Slovakia), Chair, informed the Committee that an agreement had been reached with all concerned delegations. In light of the many divergent views, the current cash flow crisis and the need to use available resources and time in the best possible way, the Committee was ready to adopt by consensus the programme of work up until the agenda item on the revitalization of the General Assembly on 11 November. The Committee would then revert to the question of organization of work, offering an opportunity for delegations to take the floor and express concerns, but with the firm understanding that afterwards the Committee would — by consensus — adopt the rest of the programme of work as a whole.
Following the adoption of the partial programme before the Committee, the Russian Federation’s representative stressed that the adoption did not mean the problems had been solved. Her delegation still had not received 18 visas, she said, adding that the Chair and the President of the General Assembly must continue to work on the problem and aim to resolve it fully by the time the Committee takes up revitalization of the work of the General Assembly.
Also speaking on the responsibility of States for internationally wrongful acts were the representatives of Finland (speaking also for Denmark, Iceland, Norway and Sweden), Sierra Leone, Slovakia, Singapore, China, United Kingdom, Sudan, United States, Mexico, El Salvador, Russian Federation, Malaysia, Honduras, Spain, Cyprus, Israel, Iran, and Portugal.
Also speaking on diplomatic protection were the representatives of Norway (also speaking for Denmark, Finland, Iceland and Sweden), Slovakia, Singapore, Sudan, Eritrea, Russian Federation, Malaysia, El Salvador, Iran and Mexico.
Also speaking in the debate on universal jurisdiction were the representatives of Iran (speaking for the Non-Aligned Movement), Sweden (also speaking for Denmark, Finland, Iceland, Norway), Sierra Leone and Australia (also speaking for Canada and New Zealand).
The Sixth Committee will next meet at noon on Wednesday, 16 October, to conclude its consideration of diplomatic protection and continue the debate on the scope and application of the principle of universal jurisdiction.
Statements on Responsibility of States for Internationally Wrongful Acts
NIINA NYRHINEN (Finland), also speaking for Denmark, Iceland, Norway and Sweden, said that the comments made in the Sixth Committee 2001 discussions suggest that Governments were largely content with the systemic structure given to the topic and had found most of the individual provisions acceptable. Thus, it would not be advisable to embark on negotiations for a convention on the matter of responsibility of States for internationally wrongful facts. There is no question about the existence of international responsibility and the articles reflect a widely shared consensus on the main issues, she said. There is a risk that reopening the articles might jeopardize the delicate balance built into them. In addition, it is significant that the present articles provide a framework within which the law has developed for almost twenty years and continues to develop, she said.
CARY SCOTT-KEMMIS (Australia), also speaking for Canada and New Zealand, pointed out that since the General Assembly first commended the draft articles on the responsibility of States for internationally wrongful acts to Governments in 2001, they and international legal bodies have increasingly referred to the articles’ authority to guide their decisions. After consideration of the views of other Member States regarding future action, he said that he has not heard a compelling reason to alter the status quo. These articles — as they now stand — reflect widespread consensus on most issues and have a proven track record of application. Subjecting them to diplomatic negotiation would risk disagreement between Member States over different aspects.
No matter how well intentioned, this approach could dilute and undermine the articles’ influence and the decades of careful deliberation that the articles represent, he continued. In their current form, they provide the most viable framework for guiding international bodies and Governments in their consideration of State-responsibility issues. While the risks of negotiating a convention are too great in the absence of a compelling need to do so, he said he supported the adoption of a resolution endorsing the articles as they currently stand and attaching them as an annex to facilitate their development without undermining them.
MICHAEL IMRAN KANU (Sierra Leone) stressed that the text of the State responsibility articles represents a compromise, “not perfect, but rather balanced and authoritative”. Given their influence on international law jurisprudence, there is value in taking concrete steps to resolve the question of adopting the articles as a convention in the future. States still have the primary role in norm setting at the international level, he said, adding that the fundamental role of States as recipients of the recommendations of the International Law Commission is at the heart of the progressive development and codification of international law. States should have a more frequent opportunity to discuss the question of adoption, he stressed, as the present triennial debate cycle seem to strangulate effective dialogue.
MATUS KOSUTH (Slovakia) said that the draft articles on State responsibility for internationally wrongful acts have made an immense contribution to international law and have truly strengthened the rule of law. This achievement can be better upheld and further strengthened if the articles continue to be applied in their current form and status. He stressed that he did not favor elaborating a convention on this matter because subjecting the articles to negotiations at an intergovernmental conference or at the General Assembly, after nearly two decades of widespread application, would risk galvanizing existing differences of views and jeopardize their current level of acceptance and status.
CHUNG YOON JOO (Singapore) said she joined others on the Sixth Committee expressing concerns about the substance of certain provisions of the articles on the responsibility of States for internationally wrongful acts. One option for future action is the negotiation of a convention based on the articles while another is simply leaving the articles to be applied by international courts and tribunals. Whatever the Committee’s decision, it would be in the international community’s best interests for that decision to be made by consensus, considering the significance of the area of law concerned.
YANG XI (China) said the draft articles are well structured, rich in content and contain comprehensive provisions on State responsibility that balance national interests and those of the international community. China is open to various options regarding further action on the articles, he said, but noted that States interpret certain topics therein differently, including “serious breaches of obligations under peremptory norms of general international law,” “countermeasures” and “measures taken by States other than an injured State”. Therefore, it was advisable to ensure that all States were comfortable with any future action taken on the articles in the interest of broad consensus on the major issues where differences remain, he stressed.
SUSAN DICKSON (United Kingdom) recalled that, in the drafting of the articles on the responsibility of States for internationally wrongful acts, the International Law Commission made great efforts to identify and reconcile differing State positions. However, there remain a significant number of articles on which States’ views diverge or that have insufficient or insufficiently uniform State practice to make such a determination. Therefore, it remains premature to assert that all the articles carry a sufficient degree of consensus or are sufficiently grounded in practice to reflect customary international law in their entirety. Hence, she was hesitant about moving to a convention, she said, expressing concern that such an instrument could disturb the previously struck balance. Furthermore, a convention could further provoke divergences and differences of view and jeopardize the very coherence the articles are seeking to instil. She also noted that some academic writings and judicial pronouncements lack clarity about the legal force and status of some International Law Commission output.
YASIR ABDALLA ABDELSALAM AHMED (Sudan) said the question of responsibility of States for internationally wrongful acts assumes major importance, given the increasing number of judgements by various international courts and bodies. It is a fundamental principle of international law stemming from the equal rights and obligations of States and represents the cornerstone of rule of law. Most of the articles are an expression of customary international law, he noted, highlighting the large number of authoritative judgements that have relied on various articles. The elaboration of a legally binding convention can strengthen legal certainty and promote the application of international law. It is also necessary for a mechanism to be included to provide predictability and certainty and to prevent abuse in the form of excessive invoking of counter-measures. Further, he stressed, in spite of the doubts of some States about a convention, it is important to show flexibility and not prejudge the result of negotiations.
JULIAN SIMCOCK (United States) said that the articles are most valuable in their current draft form, a position of his country’s that has not changed. He expressed concern that the negotiation of a convention poses risks to important existing rules. Opening the draft articles to the debate necessary to arrive at a convention could redraft, question or undermine the well-accepted rules documented therein. New rules utilized by States in practice are much more likely to gain widespread acceptance, as opposed to a convention negotiated under the pressure of a condensed timeframe. The best option is to allow the articles to continue to guide States and other litigants as to the content of settled law and to assist States in the progressive development of law, he said.
ADRIÁN ARROCHA OLABUENAGA (Mexico) observed that, because a significant portion of the articles reflect norms of customary international law, their flexible nature generates legal uncertainty. Highlighting the need for a normative framework to regulate State activity and provide legal certainty, he noted his support for a codification process in which the articles are adopted in the form of a treaty. Expressing regret on the impasse so far, he proposed three approaches to progress towards future action on the articles: that the topic be analysed annually by the Sixth Committee; that an inter-State debate be held on the substantive and procedural aspects of the articles’ implementation; and that a debate be held on the practical modalities pursuant to which a draft treaty could be negotiated. In this way, the international community could break the vicious cycle of paralysis on the topic.
INDIRA GUARDIA GONZÁLEZ (Cuba), aligning herself with the statement to be made by the Community of Latin American and Caribbean States (CELAC), reiterated her support for negotiations towards adopting a convention on the matter. The reluctance of some countries to move towards the codification of norms should not limit efforts to draw up a convention. While the International Law Commission is not a legislative body, the States assembled together do have the legal powers to draw up a convention, especially as there is adequate jurisprudence to negotiate on a firm basis. Some countries argue that opening the text to negotiations could jeopardize the current consensus. However, what delays the adoption of a convention is the attitude of some Governments that continue to evade their responsibility and act with impunity. These same States will continue to force ambiguous and often contradictory legal pronouncements on the issue since they are allowed to leave such an important matter in the hands of the free and varied will of the judge interpreting the rules. Unfortunately, “justice does not always respond to just values and is reduced to the arithmetic of what two judges decide in a court of three,” she said.
EGRISELDA ARACELY GONZÁLEZ LÓPEZ (El Salvador) said that globalization and other recent developments have created a need to crystallize States’ responsibility as a principle of international law. Highlighting the article concerning the admission of State responsibility for activities that might generate harm for third parties, she said that those texts are the outcome of arduous and methodological work by the International Law Commission. They rightly contain certain norms developed through progressive development of law, she said, noting that chapter 3 posits that grave violations of imperative norm of international law pose a duty on all States to bring an end to such violations. The adoption of a legally binding convention would allow the international community to obtain a better understanding of the different ways of enforcing State responsibility.
ELENA A. MELIKBEKYAN (Russian Federation) observed that the responsibility of States for internationally wrongful acts was one of the few areas of international law not yet codified in an international instrument. Pointing to the impasse regarding further action on the articles, she stated that the problem might be that the articles contain both customary norms of international law and provisions representing the progressive development of international law. These latter provisions should be viewed with caution, particularly “countermeasures” and article 8 dealing with attributing the conduct of a person to a State. Nonetheless, she said she favoured the development of a universal convention based on the articles and supported an international conference to this end.
ALEXANDROS KOLLIOPOULOS (Greece), calling the draft articles on responsibility of States one of the International Law Commission’s greatest achievements, said: “Indeed, the draft articles deal with one of the most important and delicate topics of international law, that is the responsibility of States in case they violate international obligations.” They have become the most authoritative statement available on issues of State responsibility, covering a huge gap in existing international law. They promote the notion of peremptory norms of international law as envisaged in the Vienna Convention on the Law of Treaties, as well as the regime of responsibility for grave violations of such norms. The text, as it stands, reflects a carefully achieved compromise. Ideally, it should take the form of an international convention in order to provide States with authoritative regulatory guidance. However, the elaboration of a convention should not jeopardize the delicate balance of the text, which must remain without any changes to its substantive provisions, some of which contain important compromises with regard to complex and sometimes controversial legal questions, he added.
MOHD SUHAIMI AHMAD TAJUDDIN (Malaysia), echoing other delegates, said a convention should not be initiated at this moment; such a move may unravel the fragile balance in the text of the articles. A convention may find non-universal or at least quasi-universal participation, which might defeat the purpose of its inception. States should continue to acquire even wider experience with the application of the articles in practice, he said, adding that existing mechanisms against internationally wrongful acts such as the International Court of Justice and Security Council resolutions should be strengthened for the maintenance of international peace and security.
YOLANNIE CERRATO (Honduras) said that the responsibility of States is a cross-cutting issue, adding that the adoption of a convention based on the draft articles should be considered substantively. Voicing support for the working group established by the Sixth Committee to take a decision on the convention, she said that there is already practice in jurisprudence that could advance the international community towards an instrument. That treaty could establish clear norms, especially regarding State responsibility in matters concerning the threat and use of force and human rights violations. The articles have been widely used by international courts tribunals as well as municipal courts, she said, expressing support for a conference for beginning negotiations towards a convention.
ZACHARIE SERGE RAOUL NYANID (Cameroon), noting that State responsibility for internationally wrongful acts is one of the most complicated areas of international law, said the articles are a precious source of guidance for Governments and courts. Applauding the International Law Commission’s difficult and methodological work, he said that the seventy-fifth anniversary of the United Nations is a good opportunity to send a positive signal on this matter. Regarding the potential uncertainties that might emerge at an international diplomatic conference, he said the articles are not beyond reproach. States have the right to negotiate if they wish. However, by limiting the parameters of the conference to those articles that are not considered part of customary law and by carrying out preparatory work, those potential negative consequences can be contained.
RICARDO GARCÍA LÓPEZ (Spain) said the structural character of the draft articles content are the best incentive for pursuing codification and the progressive development of international law. The articles constitute a symbol of the current and future course of the work of the Sixth Committee, “perhaps even a symptom of its state of mind,” he said. The work completed by the International Law Commission deserves the adoption of an international convention that will ensure greater legal certainty in this area of norms. Raising the concern of possible undesirable effects from a decentralized application of rules, he endorsed the progressive development of dispute settlement mechanisms in this area. Spain, he stressed, is willing to accept the mandatory recourse to international arbitration.
Mr. CHRYSOSTOMOU (Cyprus) said that by adopting draft articles on State responsibility, the International Law Commission codified customary international law. The plethora of case law on the articles, as confirmed by 86 recent decisions taken by international and regional courts, lay rest to any claim to the contrary. The articles must be formally codified through their adoption as a multilateral treaty as quickly as possible, notwithstanding their customary character and hence their universal binding applicability. Further, he said, the Committee’s discussions are increasingly infused with elements that go beyond the scope of holding States accountable for wrongful acts vis-a-vis other States or the international community as a whole. More focus was needed on the consequences of wrongful acts, including judicial and other objective means for assessing the violations and ensuring remedy, he stressed.
SARAH GOLDIE WEISS (Israel) said that notwithstanding her reservations on certain issues, the draft articles are an “undeniable and pertinent legal achievement”. In the current non-binding form, the articles are a useful tool for international courts and tribunals. However, they do not reflect customary international law. Noting that the General Assembly had raised the possibility of requesting the Secretary‑General to provide it with information on all procedural options for possible further action on the basis of the articles, she voiced opposition to commencing negotiations aimed at formulating the articles into a treaty.
ALI NASIMFAR (Iran) said that, while most provisions of the draft articles express customary international law, other provisions such as those contained in article 48 reflect progressive development of international law. Urging that the rule of State responsibility should be clear and known to all subjects of international law, he called for the articles to be crystallized in the form of a binding treaty. A convention on State responsibility could contribute to legal certainty and increased application and promotion of international law. To this end, a diplomatic conference should be convened. He also stressed that it would be imperative to devise a dispute-settlement mechanism for this convention to preclude any abuse in the form of excessive and unjustified invocation of countermeasures against other countries.
MATEUS KOWALSKI (Portugal) pointed out that the draft articles, having gone through a long period of discussion and maturation, has a relevant body of practice and case-law surrounding them. Consequently, inaction by States contributes to the fragmentation of jurisprudence. While some States have concerns about the potential uncertainty of conveying a diplomatic conference and the potential damage to the work of the International Law Commission, defining the conference’s scope and conducting appropriate preparatory work could minimize these risks. A convention would provide the international system with clear rules about State responsibility for internationally wrongful acts, including the threat and use of force in violation of the Charter, human-rights violations or the illegal exploitation of resources. A negotiating process is the best way to address outstanding substantive issues, close potential gaps in international law and provide all States with ownership of the final outcome of the process, he said.
CLEMENT YOW MULALAP (Federated States of Micronesia) recalled the International Law Commission’s recommendation in 2001 that the General Assembly consider convening an intergovernmental conference to examine the articles with a view to concluding a convention. The failure to take meaningful steps in that direction is worrisome; it signals that the General Assembly does not accord the articles sufficient respect. The articles must be given surer footing in international law. Convening an intergovernmental conference must recognize that the articles are carefully crafted to achieve a balance between codification and progressive development. The Sixth Committee must also avoid engaging in a wide-ranging negotiation of substantive provisions unless warranted by significant development in State practice since 2001. A shortcoming of the articles is their silence on the special circumstances of small island developing States. Those countries have limited capacity to monitor unlawful conduct by foreign or private persons or entities exercising apparent governmental powers of regulation without authorization by those States. There has been significant State practice in this regard since 2001, which should be considered in any future intergovernmental examination of the articles.
Statements on Diplomatic Protection
Ms. BIERLING (Norway), also speaking for Denmark, Finland, Iceland and Sweden, said that the articles on diplomatic protection drafted by the International Law Commission are generally satisfactory to them. Reiterating that the General Assembly should follow the recommendation of the Commission and elaborate a convention on the basis of the articles, she added that a convention would enhance legal clarity and predictability in this important field of law. However, noting the diverging views on the matter, she also expressed concern that attempts to negotiate a convention at this point in time might risk opening up a debate that may undermine the already substantial contributions of the articles to general international law. Nonetheless, this should not preclude the elaboration into a convention later, she stressed.
PETER NAGY (Slovakia) said that entering into a process of negotiating an international convention on diplomatic protection based on the International Law Commission articles would be premature at this stage. The current form and status of the articles, as a legally non-binding text, have bigger potential to serve the purpose of consolidating the relevant norms of international law and influencing the practice of States. The best and most natural way of strengthening the status and acceptance of the draft articles is to provide sufficient time, in the range of several decades, for them to become authoritative by their use in State practice and in the jurisprudence of courts and tribunals.
LUKE TANG (Singapore) said the Commission’s work on the articles is an important and valuable contribution to the ongoing discussion of diplomatic protection. To the extent they reflect State practice and are consistent with customary international law, the articles provide welcome clarity on the state of the law. Regarding other elements of the articles that demonstrate progressive development of the law, the articles provide a fertile ground for States to continue dialogue on this topic and are a useful reference for those who apply international law. This topic is closely tied to the related topic of State responsibility for international wrongful acts. Any future action on this topic should track the developments on State responsibility for international wrongful acts.
YASIR ABDALLA ABDELSALAM AHMED (Sudan), underscoring that the articles promoted the rule of law at the international level, emphasized that all local remedies should be exhausted before diplomatic protection is exercised. The articles were closely linked to the responsibility of States, including articles 7 and 8 which express public international law relating to stateless persons and refugees. A convention should be elaborated, provided that the instrument protects human rights and the rights of States to protect their citizens. He also expressed hope that the convention would codify, develop and define rules regarding the criteria that must be met before diplomatic protection is requested.
JULIAN SIMCOCK (United States) reiterated that where draft articles on diplomatic protection reflect State practice, they represent a substantial contribution to the law and are valuable to States in their current form. However, certain draft articles are inconsistent with well-settled customary international law, such as article 15 on exceptions to the local remedies rule. In its comments to the International Law Commission, the United States opposed this standard as too lenient, he said, noting that the customary international law standard was that the exhaustion requirement was excused only where the local remedy is “obviously futile” or “manifestly ineffective.” While disagreeing with the Commission’s commentary that the customary international law rule was too burdensome, he said that any articles considered in a convention should reflect well-established customary international law.
INDIRA GUARDIA GONZÁLEZ (Cuba) said a convention on diplomatic protection would harmonize and integrate all existing practice and jurisprudence including ruling by the International Court of Justice. The draft articles contain the customary norms and principles formed by the practice of States. Therefore, a convention would contribute to the progressive development and codification of international law. Regretting that some States use diplomatic protection as a tool to exert pressure on other countries, she said that, on the contrary, it is a vital institution and a guarantee of the protection of the fundamental freedoms of individuals, including highly vulnerable groups such as refugees and stateless persons.
Ms. HAILE (Eritrea) said that the protection of diplomats and consular staff is a clear and sacrosanct obligation according to various international conventions. Noting various actions by host Governments that impede diplomats from exercising their functions, she also condemned violence by non-State armed groups targeting diplomats. Countries must take measures to prevent all acts that endanger the safety and security of diplomatic missions and their staff, she stressed, adding that diplomacy is a tool for the maintenance of international peace and security. Therefore, respecting the immunity of diplomats is not a privilege but a guarantee for the smooth functioning of international relations, as enshrined in the Vienna Conventions on Diplomatic Relations of 1961 and 1963.
ELENA A. MELIKBEKYAN (Russian Federation) said that the draft articles play an important role in the development and clarification of customary international law for States to protect their citizens from the actions of other States. The articles strike a balance between codifying existing principles and the progressive development of international law. Further, they answer many questions relating to diplomatic protection, including its definition and scope, the rights of States to exercise diplomatic protection and the protection of corporations. Consequently, there are grounds to develop an international convention on diplomatic protection, she said.
MATEUS KOWALSKI (Portugal) stated that, despite his view that self-emancipation of the individual is the path to be followed in international social relations, diplomatic protection conducted by a State remains an important remedy. Such protection has an important function as a subsidiary, last-resort mechanism for a State to protect the human rights of its nationals and is one of the pillars of the principle of sovereign equality. He expressed hope that these articles, along with those on responsibility of States, can soon be part of parallel conventions as these topics traditionally “go hand in hand”.
ZACHARIE SERGE RAOUL NYANID (Cameroon) said that diplomatic protection, as a sovereign right of States, is expressly important for the functioning of rule of law. Noting that this principle now exists in parallel with other concepts such as State responsibility and the jurisdiction of international tribunals, he said that it gives rise to divergent interpretations. While some States question the relevance of the concept, others believe it necessary to draw a distinction between diplomatic protection and the protection of human rights. Yet others look at it as a process for the peaceful settlement of disputes. It is necessary to clarify the scope of diplomatic protection to avoid it being abused for interference into the internal affairs of States using the pretext of human rights. Voicing support for the continuation of work towards a draft convention on the matter, he said that the convention would be governed by the international law of treaties which would result in better use of the principle.
SARAH ZAHIRAH BINTI RUHAMA (Malaysia) said that there are no novel issues to be considered at this juncture on this agenda item. Reiterating her country’s position, she stressed that while Malaysia is committed to ensuring that its nationals abroad are fairly treated, the exercise of diplomatic protections shall remain within the sovereign prerogative and discretion of a State. Furthermore, draft article 19 is premature, even from the point of view of progressive development of international law. Further deliberations on this agenda item would be best embarked upon the conclusion of the agenda item concerning responsibility of States for internationally wrongful acts, she added.
EGRISELDA ARACELY GONZÁLEZ LÓPEZ (El Salvador) said that difficulties might arise in the exercise of diplomatic protection in actual practice in different international scenarios. Many of these relate to the nationality of the individual for whom such protection is claimed, as where the individual may not have a relationship of nationality to the country in which they reside or where the individual has dual nationality. There may also be cases involving legal persons where there is no place of incorporation. It is helpful to have a legal framework to bolster diplomatic protection, she said, reiterating support for the draft articles to be incorporated into an international instrument of binding nature.
ALI NASIMFAR (Iran) said that any legal regime on diplomatic protection should be based on a thorough understanding of and proper balance between the rights of individuals and the rights of States. Voicing doubt that the present set of draft articles satisfy these concerns, he said that they could not be deemed as reflective of customary international law. Further, while the International Law Commission has pointed out in its commentary that the articles do not deal with primary rules, some provisions are contrary to this. States still need more time to consider the content of the draft articles, he stressed, adding that the time is not ripe to elaborate the drafts articles into a legally binding instrument.
Ms. FIERRO (Mexico), expressing support for the elaboration of a convention, said that instrument should reflect the principle that the exercise of diplomatic protection does not constitute interference in the domestic affairs of the State that committed the internationally wrongful act. Draft article 7 — relating to predominant nationality — is not sufficiently grounded in State practice and could give rise to disputes. Recognition of predominant nationality should be regulated by lex specialis between States that wish to do so. She called for the Sixth Committee to advance its consideration of diplomatic protection.
Statements on Scope and Application of Universal Jurisdiction
ALI NASIMFAR (Iran), speaking for the Non-Aligned Movement, stressed that the immunity of State officials, which is deeply rooted in the Charter of the United Nations, should be fully respected. Recalling that, in February 2009, the African Group requested the inclusion of this agenda item in the Sixth Committee to address the issue of the principle’s uncertain scope and application, as well as its abuse, he expressed alarm about the implications of its application on the immunity of States officials and consequently, the sovereignty of States concerned.
Calling for further clarification to prevent any misapplication, he said that universal jurisdiction shall not replace any other jurisdictional bases, namely territoriality and nationality. Further, it should only be asserted for the most serious crimes. Expansion of the principle to include any less than the most heinous crimes could call into question its legitimacy. It is premature to request the International Law Commission to undertake a study on different aspects of universal jurisdiction, he said, adding that responsible and judicious application of the principle will ensure its credibility.
AMADOU JAITEH (Gambia), speaking for the African Group and associating himself with the Non-Aligned Movement, recalled the African Group’s concern regarding the abuse of the principle of universal jurisdiction — particularly over African officials — since February 2009. For 10 years, the Sixth Committee has failed to address these concerns and the scope of universal jurisdiction remains uncertain. He called on the Committee to take steps to address the inclination of non-African States to apply the principle on Africans without the consent of African States and outside the safeguards of cooperation within the international system. Consent and cooperation, when regulated within the multilateral system, can limit the abuse and misuse of universal jurisdiction, he stressed.
CECILIA ANDERBERG (Sweden), also speaking for Denmark, Finland, Iceland and Norway, said that the principle of universal jurisdiction is an important instrument in the pursuit of ending impunity. While it draws on the developments in international law, including State practice and jurisprudence, it is a continuing development that should be allowed to evolve further. Therefore, it is not advisable to attempt to develop an exhaustive list of crimes for which universal jurisdiction would apply. Highlighting the role of the International Criminal Court as a court of last resort, she said that Court provides an avenue for prosecution when States do not exercise their jurisdiction.
Turning to the development of other bodies, such as the International, Impartial and Independent Mechanisms for Syria and the Fact-finding Mission for Myanmar, she said that since these mechanisms do not have prosecutorial mandates, national prosecution offices, applying the principle of universal jurisdiction, can contribute to filling the current gap at the international level. The role of these investigative bodies and other possible future mechanism may also help shape the development of the application of the principle. The primary responsibility for exercising jurisdiction for international crimes rests with States.
SINA ALAVI (Liechtenstein) said that, while the primary responsibility to prosecute perpetrators of the most serious international crimes rests with those States on whose territory the crimes were committed, other jurisdictional links such as the nationality of the perpetrator or the victims are also widely accepted. If States are unwilling or unable to bring perpetrators to account, other States with no direct connection to the crime should fill the gap based on universal jurisdiction. He noted the important role played by the International, Impartial and Independent Mechanism for Syria and encouraged States to cooperate with it. Also pointing out the Independent Mechanism for Myanmar, he said that such processes of this nature can produce paths to accountability if complemented by prosecutions. He called for funding from the Organization’s regular budget to support those procedures.
Mr. KONE (Sierra Leone), associating himself with the Non-Aligned Movement, said that his country embraces a form of universal jurisdiction for grave breaches of the Geneva Conventions of 1949 and the Additional Protocols of 1977. The Sixth Committee has been discussing the topic for ten years, he noted, adding that after a decade of discussions without substantial progress, the decision to place the topic on the long-term programme of work of the International Law Commission is a welcomed one. Expressing concern about the inertia that the Committee currently faces on the topic, he said that, like other African States, Sierra Leone is concerned about the abuse of the principle. It is necessary to distinguish between issues of immunity and universality. The Commission, with its sound working methods and membership of independent experts, is well-placed to address this complex legal question.
CARY SCOTT-KEMMIS (Australia), also speaking for Canada and New Zealand, stressed that universal jurisdiction offers a complementary framework to ensure that perpetrators are held to account in circumstances where the territorial State is unwilling or unable to exercise jurisdiction. His country, along with the others for whom he is speaking, have recognized the principle for the most serious international crimes: genocide, crimes against humanity, war crimes, slavery, torture and piracy.
He reiterated that the primary responsibility for investigating and prosecuting these crimes rests with the State in which the conduct occurs and the State of nationality of the perpetrator, as these States are often in the best position to achieve justice. Emphasizing the importance of exercising universal jurisdiction in good faith and consistent with international law — including that related to diplomatic relations, privileges and immunities — he encouraged all States to incorporate the principle into domestic legislation.