2 November 2005
Move to Accord Diplomatic Protection to Stateless Persons, Refugees Is Commended by Speakers in Assembly's Legal Committee
Issue Raised as Debate Continues on Topics in Law Commission Report
NEW YORK, 1 November (UN Headquarters) -- Speakers this morning applauded the inclusion of a provision to cover stateless persons and refugees in draft articles on diplomatic protection being elaborated by the International Law Commission, as the Sixth Committee (Legal) began its debate on the final topics considered by the Commission at its recent session. The other subjects are "effects of armed conflicts on treaties" and "fragmentation of international law".
The Nordic countries were pleased by the Commission's action on behalf of stateless persons and refugees, said the representative of Norway, who spoke on their behalf. They noted that the draft provision deviated from earlier opinions to the effect that a State should exercise diplomatic protection on behalf of its nationals. It was important that diplomatic protection was extended to such vulnerable categories of persons.
The representative of the Netherlands, also approving the Commission's action, said that provisions on protection for legal persons such as corporations could gain from a fresh look at comparative corporate law and current global economic developments. She noted that the current provision in the draft text excluded the possibility of corporations having dual nationality.
Several representatives said the "clean hands" doctrine should be excluded from the draft articles on diplomatic protection. One said that the few cases falling within the scope of diplomatic protection did not constitute sufficient practice to warrant codification, nor could its inclusion be justified as an exercise in the progressive development of international law.
Also addressing the Committee this morning were the representatives of Iran, China, Finland (like Norway, on behalf of the Nordic countries), Austria, Republic of Korea, Spain, India, Belarus, Italy, Portugal, Germany, Malaysia and Canada.
The Sixth Committee will meet next at 9:30 a.m. tomorrow, Wednesday, 2 November, to continue its discussion of the International Law Commission report.
The Sixth Committee (Legal) met this morning to continue its discussion of topics contained in the report of the International Law Commission. (For further information, see Press Release GA/L/3282 of 24 October.)
HOSSEIN PANAHIAZAR (Iran) said he supported the Special Rapporteur's basic approach on the topic of the "effects of armed conflicts on treaties", in presenting a set of draft articles to clarify the legal position and to promote the security of legal relations between States. However, the subject was not limited to the law of treaties; it had a close relationship with other domains of international law.
Referring to draft article 2 (b) which defined the term "armed conflict", he said the scope had been broadened to include internal conflicts. However, those conflicts should not have any effect on treaties concluded between the State which is facing such a situation and the third State(s). In a case where such State failed to meet its treaty obligations, it should be dealt with under the law of State responsibility. Moreover, the impossibility of performance for a State, which is facing such a situation, should be duly considered. He also offered observations on several other articles, including article 10, saying that it was quite clear and beyond question that the State which exercised the right of self-defence could not be put on the same footing with a State that committed an act of aggression. The draft article was not appropriately drafted, in that it would assist a State in perpetrating a wrongful act.
MA XINMIN (China), referring to the same topic, said the Special Rapporteur's approach of limiting the study to treaties between States was too narrow, because some treaties entered into by international organizations were also affected by armed conflicts. Also, as to the scope of "armed conflict", it was so broad that it was possible that military action taken by a State internally against rebel groups might be inappropriately included. He basically agreed with the view that the outbreak of armed conflict did not necessarily terminate or suspend the operation of treaties. However, he added that comprehensive consideration was needed to determine whether a treaty continued to be valid, and one of the important elements in that consideration was the intention of the States parties when they concluded the treaty. He added that the legitimacy of the use of force had a bearing on treaty relations.
On the subject of diplomatic protection, he agreed it was not necessary to include the "clean hands" doctrine in the draft articles. On another topic, he said that the "fragmentation of international law" was not only of theoretical significance but also of major practical importance.
KIRSTI LINTONEN (Finland), speaking also for the other Nordic countries -- Denmark, Iceland, Norway, Sweden -- said they welcomed the basic approach the Commission had chosen, including the focus on the substantive aspects of the topic "fragmentation of international law". She said the Nordic countries also welcomed the choice of the Vienna Convention on the Law of Treaties as the general frame of analysis. It seemed to the Nordic countries that the Vienna Convention provided a wealth of resources for addressing the difficulties of fragmentation of international law. They expected the outcome of the Commission's work to be of great interest to practitioners of international law, not only in foreign ministries but also in international courts and tribunals.
On the series of studies carried out by the International Law Commission's study group on the topic, she said the Nordic countries said they took note of the conclusion that the maxim "lex specialis derogat legi generali" should not be read as leading to the extinction or total replacement of general law. They valued the consideration of "prohibited lex specialis" -- a notion that referred to non-derogation in situations where the general law was of "jus cogens" nature or where it benefited third parties, including individuals. They said the overall conclusion of the "omnipresence of general law", which they fully supported, might benefit from a more thorough consideration of the concept of "general law", as suggested by the Chairman of the study group.
She said the Nordic countries felt that the work on the topic of fragmentation was on the right track -- even though they might regret that getting a picture of what really was discussed in the study group required the additional effort of asking the Codification Division to send paper copies of the studies which were not available at the Commission's website. As to the final outcome of the study, they said that, ideally, it should reflect the practical orientation of the work while preserving the analysis provided by the background studies. A single document consisting of an analytical part and a condensed set of practice-oriented conclusions would seem to serve both purposes, and they welcomed the study group's intention to submit a draft of both documents for adoption by the Commission next year.
OYVIND HERNES (Norway), also speaking on behalf of the Nordic countries, on the topic "diplomatic protection", responded to the set of questions for which the Commission wanted answers from Governments by 1 January 2006. He said the Nordic countries were satisfied with the set of draft articles on diplomatic protection. They supported the chosen approach of the Commission, based on the main premise that States had a right, not a duty, to exercise diplomatic protection. With regard to draft article 5, they supported the Commission's chosen approach, whereby a State might exercise diplomatic protection in respect of a person who was its national at the time of the injury, and was a national at the date of the official presentation of the claim.
In the case of multiple nationality (article 7), they said the State of nationality that was "predominant", both at the time of the injury and at the date of the official presentation of the claim, should be entitled to exercise diplomatic protection against another State of nationality of the person concerned. In their view, article 7 constituted a codification of existing customary international law. They added, however, that the rule had no bearing on possibilities for the provision of consular assistance, which were not governed by the law pertaining to diplomatic protection.
He said the Nordic countries were particularly pleased that the Commission had drafted a provision on diplomatic protection on behalf of stateless persons and refugees in certain cases. They noted that the article deviated from earlier opinions to the effect that a State should exercise diplomatic protection only on behalf of its nationals. It was important that diplomatic protection was extended to such vulnerable categories of persons. With regard to the exercise of diplomatic protection on behalf of shareholders, they expressed content that the Commission had ensured overall consistency with the case law of the International Court of Justice, based on the Barcelona Traction cases of 1970.
He said they also supported the approach in draft article 19 whereby the right to exercise of diplomatic protection by the flag State did not exclude the same right to be exercised by the State of nationality of the members of the crew of a ship and vice versa. That was a very important principle, and that solution meant, consequently, that important protective measures established by the Law of the Sea were not undermined.
KONRAD BUHLER (Austria) said he agreed with the basic approach regarding the reference to armed conflicts in draft article 2, saying it was certainly not the task of the articles to deal with the legality of armed conflicts. However, he did not believe that the draft articles should also apply to non-international armed conflicts. Draft article 3 should be maintained. However, draft article 4 raised a number of questions and, given the complexity of the problems it dealt with, he would even envisage splitting into several provisions.
As to the draft articles on diplomatic protection, the "clean hands" doctrine should not be included, he said. It was not sufficiently anchored in international law to be considered an established customary rule. Turning to the topic of fragmentation of international law, he said the individual items and the form of the final report were well chosen. Discussions had revealed the existence of certain problems regarding conflicting norms in the international legal order and a lack of instruments to resolve possible conflicts.
KIM SUN-PYO (Republic of Korea) said the Law Commission should restrict the topic of effects of armed conflict on treaties to agreements between States. Differing effects on the parties to treaties, depending on whether they were States or organizations, would make the draft more complicated and unmanageable. As to defining the concept of armed conflict, it would be superfluous and unnecessary for the Commission to try to codify the concept which would be further developed in the field of international humanitarian law.
He made several observations on the scope of the term "armed conflict" in articles 1 and 2. He suggested that article 4 could be improved upon, since the mere criteria of the intention of the parties might not be enough to determine the termination or suspension of treaties.
After commenting on several other draft article related to armed conflict, he turned to the issue of diplomatic protection. He said the argument for the "clean hands" doctrine to be included overlooked the basic nature and function of diplomatic protection.
BRECHJE SCHWACHÖFER (Netherlands) spoke on two topics -- "effects of armed conflicts on treaties" and "diplomatic protection". On the first, she said the Netherlands supported the general proposition that continuity of treaty obligations in armed conflict, in cases where there was no real need for suspension or termination, should be encouraged. It would be advisable to have the draft articles also apply to treaties that were being provisionally applied. She said the "definition" of armed conflicts should also cover those of the non-international kind, since they could also affect a State's ability to fulfil its treaty obligations. She also said that the fact that a State was under occupation could also affect its ability to fulfil its treaty obligations.
On "diplomatic protection", she said the Netherlands supported the draft articles. It had taken note of the fact that consular assistance had been excluded from the draft articles, and that clarity would be enhanced if that were to be explicitly stated in the Commission's commentary on the draft text. She said draft article 1, on definition and scope, was more restrictive than necessary, because the scope was widened in later provisions, such as draft article 8 on stateless persons and refugees. She proposed the reformulation of draft article 3 (1) to read "The State of nationality is the State entitled to exercise diplomatic protection". That would place greater emphasis on the individual, she said.
The Netherlands applauded the inclusion of draft article 8 on diplomatic protection for stateless persons and refugees. On diplomatic protection for legal "persons", such as corporations, she said the Netherlands believed that the draft articles could gain from a fresh look at comparative corporate law and current global economic developments. The current provision in draft article 9 excluded the possibility of corporations having dual nationality, she said, and added that various such corporations existed in the Netherlands.
On the "clean hands" doctrine, she said her country supported the view of the Special Rapporteur; the few cases falling within the scope of diplomatic protection did not constitute sufficient practice to warrant codification, nor could its inclusion be justified as an exercise in the progressive development of international law.
JULIO GONZALEZ-CAMPOS (Spain), first addressing the topic of fragmentation of international law, said the Commission's analysis must look at the international legal order as a whole, in order to consider the relationship between different groups of international norms, and their complementary nature or the substitution of some norms for others. The International Law Commission had undertaken the study of a complex issue, and he understood why some delegations might have hesitated in their support.
He said an examination required decisions on the selection of the aspects of the study, as well as the scope of results expected. He said he questioned some of the initial announcements concerning the choice of aspects for the study, as well as the goal of issuing guidelines that would be of practical usefulness. He pointed out several legal factors that would need to be taken into consideration in presenting complete guidelines. If only partial guidelines were drafted, he wondered whether it would be appropriate that they be a recommendation of the General Assembly.
GANESH SINGH (India), speaking on the topic of responsibility of international organizations, said the issue of whether all the obligations arising from the rules of an organization were to be considered as international obligations was controversial. He believed the relevant paragraph in the draft articles would apply only to the extent that an obligation arising from the rules of an organization had to be regarded as an obligation under international law; therefore, rules, which were merely procedural or administrative in nature, would not get covered. Also, in certain cases, determination of the responsibility of the organization on the basis of rules of the organization would lead to the assessment of the collective responsibility of the member States who set the organization's policy. He said an action at the behest of an international organization that was in breach of the international legal obligations of the State and the organization required further in-depth examination.
Turning to the topic of shared natural resources, he said difficulties arose from modelling the draft articles on provisions in the 1997 Convention on the Law of Non-Navigational Uses of International Watercourses. The draft articles, he added, were not supported by sufficient State practice. Context-specific agreements and arrangements were the best way to address questions relating to transboundary groundwaters or aquifer systems.
On the subject of the effects of armed conflict on treaties, he said he agreed with the approach of the Special Rapporteur. The topic presented several difficulties, since the nature of the subject was dominated by doctrines and supported with sparse practice.
LYUDMILA KAMENKOVA (Belarus) said her country supported the approach taken by the International Law Commission in the drafting of the articles on the "effects of armed conflicts on treaties". She noted that the nature of armed conflicts frequently made it impossible for treaties to be applied. Belarus favoured the use of criteria relating to intentions of parties to a conflict in drawing up the provisions. The effects of armed conflicts on treaties should be minimized. She welcomed the provisions of draft article 7, which dealt with the operation of certain treaties during armed conflict, including those applicable in case of such conflict, and treaties for the protection of human rights and the protection of the environment. She said Article 103 of the United Nations Charter should also be included on the list. The Commission should also circulate to Governments a questionnaire on the draft articles being prepared.
She said she welcomed the progress the Law Commission had made on the topic of "diplomatic protection". The Commission should not confine itself to the provisions of the Vienna Convention of the Laws of Treaties. The exercise of diplomatic protection should be discretionary, and States should have the freedom to choose. She said the "clean hands" doctrine should be excluded from the draft text as it was not related to the topic. Belarus granted diplomatic protection to its citizens abroad on the basis of its Constitution, she said.
On "unilateral acts of States", she called on the Commission to establish clear distinction between legal acts and political statements. States should be given the freedom to make political statements without suffering legal consequences. She supported the view that unilateral legal acts should be carried out only in accordance with international law.
GIUSEPPI NESI (Italy), speaking on the "effects of armed conflicts on treaties", said a clear distinction should be drawn between the effects of armed conflicts on relations between States that were a party to a conflict and the question of the effects those conflicts could have on a third State. The question of effects of hostilities on a third State did not call for specific rules. The Commission should conduct further examination of the practice of States, without excluding those in existence during the Second World War. Jurisprudence of large number of countries should also be taken into account, he said.
LUIS SERRADAS TAVARES (Portugal) raised several questions in regard to the definitions of "treaty" and "armed conflict", in the draft articles on effects of armed conflict on treaties. He said it was yet to be determined whether the draft articles were placed under the general subject of the law of treaties or under the one regarding the law on the use of force. Issues regarding the set of general principles of law would guide the draft articles, and the customary law in each field would have to be carefully examined. Concerning the issue of termination or suspension of a treaty during armed conflicts, a general principle of continuity in such cases sounded rather unrealistic, he said, pointing out that during the Second World War most treaties were terminated or suspended.
On the draft articles on diplomatic protection, he said he supported the approach taken by the Special Rapporteur to the "clean hands" doctrine. He welcomed the innovative way the Commission was dealing with the topic of fragmentation of international law. It was exploring new subjects not often dealt with by doctrine, and working methods that might produce a significant contribution to the progressive development of international law.
THOMAS FITSCHEN (Germany), addressing the fragmentation of international law, said he did not agree that the effects of the European Community joining international treaties together with its member States was a "negative" phenomenon leading to unwelcome fragmentation of international law. He said he would admit, though, that from the point of view of third States, it might sometimes be difficult in practice to tell the difference between the European Union applying the treaty or the applicable community law, or to foresee exactly on which basis the European Union acted in a certain case. But in legal terms, that did not call into question the scope or applicability of the treaty as such, and, therefore, should not be a cause of concern to the other parties to that treaty.
PEH SUAN YONG (Malaysia), addressing the topic of reservations to treaties, said he favoured the practice of States objecting to a reservation that they considered incompatible with the object and purpose of a treaty, but without opposing the entry into force of the treaty between themselves and the author of the reservation. If a reservation were incompatible with the treaty's purpose, then it would be ineffective, irrespective of whether any State objected to such reservation. He made comments and proposals on specific draft guidelines, saying that the draft guidelines required further discussions from Member States and further in-depth analysis before they could be adopted.
JOHN CURRIE (Canada), speaking on diplomatic protection, said the status of the "clean hands" doctrine was at best inconclusive in customary law. In addition, from a practical point of view, application of that doctrine in relation to the admissibility of diplomatic protection would weaken the universal application of human rights protection. The clean hands doctrine should more appropriately be raised at the merits stage, as it related to attenuation or exoneration of responsibility rather than to admissibility.
In relation to diplomatic protection, in general, he reiterated Canada's policy to provide diplomatic protection to Canadian citizens, regardless of any other nationalities that they might possess. Canada rejected the notion that a State of nationality might not exercise diplomatic protection in respect of a person against a State of which that person was also a national.
* *** *