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Sixth Committee of the 55th General Assembly

Statement by Mr. Ivo Janda, Representative of the Czech Republic on Agenda Item 164, Measures to Eliminate International TerrorismNew York, November 15, 2000 Statement by Mr. Ivo Janda, Representative of the Czech Republic on Agenda Item 159, Report of the International Law Commission on the

  • Statement by Mr. Ivo Janda, Representative of the Czech Republic on Agenda Item 164, Measures to Eliminate International Terrorism
    New York, November 15, 2000

  • Statement by Mr. Ivo Janda, Representative of the Czech Republic on Agenda Item 159, Report of the International Law Commission on the Work of its Fifty-second Session, Chapter V, Diplomatic Protection
    New York, October 31, 2000

  • Statement by Mr. Ivo Janda, Representative of the Czech Republic on Agenda Item 161, Report of the International Law Commission on the Work of its Fifty-second Session, Chapter IV, State Responsibility
    New York, October 23, 2000


Statement by Mr. Ivo Janda, Representative of the Czech Republic on Agenda Item 164, Measures to Eliminate International Terrorism

Mr. Chairman,

At the outset allow me to say that the Czech delegation fully shares the position of the EU in respect of this item and aligned itself with the statement of the EU, delivered on November 13 in the Sixth Committee. The purpose of this national statement is to briefly remind some recent legal activities of the Czech Republic in the field of suppressing of terrorism and to express views of my delegation on the contemporary process of negotiating a comprehensive convention on international terrorism.

The Czech delegation is proud to be actively involved in the work of the Ad Hoc Committee established by the resolution of the General Assembly 51/210 of December 17, 1996. In our view, this body in its short time of existence proved to be a very effective legal instrument in the fight against international terrorism. The Convention for the Suppression of Terrorist Bombings and the Convention for the Suppression of the Financing of Terrorism represent great achievements and the Czech Republic accords great importance to these two treaties. In proof of this, the Czech Republic ratified the Terrorist Bombings Convention and signed the Financing Terrorism Convention last September within the UN Millennium Summit and now is in stage of evaluating necessary legislative steps in the domestic law in order to ratify the Financing Terrorism Convention as soon as possible.

Mr. Chairman,

A good reputation of the Ad Hoc Committee can even be strenghtened if the present negotiations on a comprehensive convention on terrorism will lead to a succesful outcome. In this connection, my delegation is extremely grateful to the delegation of India for putting forward a high-quality draft convention and to dr. Rao for guiding us in our deliberations in the recent session of the working group of the Ad hoc Committee.

Taking from a purely legal point of view, perhaps the international community could do without a general convention in this field. As pointedly expressed in the Monday's statement of the EU: "the sectoral approach has proved highly satisfactory in providing the international community with the means to organizing itself against acts of terrorism". On the other hand, if the comprenhesive convention we have been dealing with will be able to lay down a general definition of terrorism, its legal significance will become enormous and such a convention will provide the international community with a still missing element of the international legal framework in this field. In this connection, my delegation is of the opinion that a general definition of terrorism for the purpose of the comprehensive convention should be based on the model of the latest revised text of Article 2 of the Indian draft and that no new conceptual elements should be added to this text.

One of the major issues of the general convention appears to be for many delegations the question of relationship to the sectoral conventions. My delegation is far from underestimating this problem, however its urgency should not be exaggerated either. Our main goal must be to preserve the mechanisms created by the partial conventions without devaluating a legal value of the general convention. A provision of the general convention on this problem should rather be flexible and open to all possibilities of this relationship. We are convinced that in most of cases the future general convention and the relevant sectoral convention could even be applied simultaneously and that there will be no practical need to deal with the question of precedence of one or the other.

Mr. Chairman,

My delegation was very pleased by a positive atmosphere in which the first round of negotiations on the Indian draft convention was led. This is something which can not be taken for granted bearing in mind a political and legal complexity of these issues. Now we must do our best to keep the momentum and pace with the progress we were able to achieve in early October so that the forthcoming session of the Ad Hoc Committee in February 2001 would move us again closer to the elaboration of a comprehensive convention.

I thank you, Mr. Chairman.


Statement by Mr. Ivo Janda, Representative of the Czech Republic on Agenda Item 159, Report of the International Law Commission on the Work of its Fifty-second Session, Chapter V, Diplomatic Protection

Mr. Chairman,

In this statement the Czech delegation would like to focus on the topic of Diplomatic protection.

My delegation studied with interest the first report of prof. John R. Dugard, the Special Rapporteur on this topic and a discussion of the ILC on it. The Czech delegation appreciates that the Special Rapporteur had the courage to go beyond traditional and conservative approaches in this field and instead of a mere survey of well-established rules he set out on a journey of examining new trends which correspond with modern development of international law. A simple collecting of customary norms of diplomatic protection crystallized in international relations many decades ago without their evaluation in respect of contemporary needs and reality of everyday life would not be of much use. My delegation therefore notes with satisfaction that the first set of articles as presented by the Special Rapporteur offers lots of provoking ideas many of which may serve as a good basis for other deliberations of the ILC on this topic.

Mr. Chairman,

The Czech delegation notes with interest that the Special Rapporteur accords great importance to diplomatic protection as an instrument of protection of human rights. So far, the jurisprudence of international law has examined the institute of diplomatic protection predominently in connection with the law of State responsibility and a narrow linkage with the law of human rights has remained rather blurred. The approach of the Special Rapporteur is innovative but my delegation supports it. Bearing in mind the significance of the law of human rights in contemporary international relations, diplomatic protection deserves and needs to be dealt with from this point of view. On the other hand, systemic relations between diplomatic protection and human rights should not be exaggerated. In our opinion, we would go too far if we take the institute of diplomatic protection as part of the law of human rights. The applicability of diplomatic protection may go beyond the field of human rights. It is imaginable that a State takes an action against another State on behalf of its national due to an international wrongful act of the latter State which was not a breach of human rights. Furthermore, let's not lose of sight that diplomatic protection can also be exercised in favour of a legal person. In such a case, diplomatic protection can hardly be evaluated in the context of human rights.

One of the above-mentioned provoking ideas is contained in draft article 4 where the Special Rapporteur boldly departs from the traditional concept of diplomatic protection as a sovereign prerogative of the State exercised in its discretion. Even the Special Rapporteur himself does not deny that such an approach is rather an expression of de lege ferenda than de lege lata. My delegation is nevertheless convinced that the idea of article 4 has its merits and deserves further consideration of the ILC. However, any conclusions of the Special Rapporteur and the Commission in this respect must be based on State practice, not only on the texts of domestic legislations. Domestic laws themselves, without a sufficient case law, do not often reveal to what extent the domestic State is obliged to take action in favour of its national and whether the purpose of such a legislation is not only to explicitly spell out the right of consular protection.

Mr. Chairman,

One of the obligatory preconditions of diplomatic protection is that the right of a state to take over claims is limited to intervention on behalf of its own nationals (the principle of nationality of claims). The scope of a state to extend its nationality to whomsoever it wishes is unlimited but for the purpose of exercise of diplomatic protection a genuine link between the claimant state and its national must exist. This principle introduced by the famous ICJ Nottebohm case represents a key element of the law of diplomatic protection and it is obvious that the Special Rapporteur had to derive from it at his work. In spite of it, even a mere transformation of the Nottebohm case's principles into the articles of diplomatic protection does not have to be easy. An interesting discussion of the Commission on article 6 is a living proof thereof. Different views were expressed on the content of this provision and my delegation admits that Article 6 presents a serious legal problem. Taking from the point of view of legal theory, my delegation supports this provision which in our view fully complies with the spirit of the Nottebohm case as well as the current jurisprudence of international law. However, problems may arise in a practical application of this concept. It is difficult to imagine the case when dominancy of nationality of the claimant State would be so undisputable and manifest that even the respondant State would not resist and would tolerate the exercise of diplomatic protection from the side of the claimant State. In our view, almost every such a case falling under Article 6 is doomed to be objected by the respondent State. The opinion expressed in par. 474 of the Report of the ILC that "...any doubt about the existence of effective or dominant nationality between the claimant State and the respondant State should be resolved in favour of the respondant State" provides a hardly satisfactory solution and rather intensifies doubts about the practical meaning of this provision. My delegation will therefore anxiously expect other results of the Commission's work on article 6.

Another example of the progressive development of international law in the field of diplomatic protection is contained in Article 8. In this case, my delegation has no objections and fully supports the idea expressed in this provision. An equal treatment of stateless persons and refugees as of nationals is shielded by contemporary international law and my delegation agrees with the view of the Special Rapporteur that the absence of any clause on diplomatic protection in existing conventions on stateless persons and refugees is an oversight which must be rectified.

Mr. Chairman,

The only major concern for my delegation was Article 2 as drafted by the Special Rapporteur. My delegation is of the view that the adjective "diplomatic" in the term " diplomatic protection" predetermines that this means of protection should always be construed as a concept of peaceful assistance to injured nationals. My delegation therefore welcomes the Commission's decision not to deal with the use of force in connection with diplomatic protection in future deliberations on this topic.

Thank you, Mr. Chairman.


Statement by Mr. Ivo Janda, Representative of the Czech Republic on Agenda Item 161, Report of the International Law Commission on the Work of its Fifty-second Session, Chapter IV, State Responsibility

Mr. Chairman,

Since my delegation is taking the floor for the first time in the current session of the Sixth Committee, let me start with congratulating you on your election. My delegation is convinced that thanks to your well-known professional skills and experience this Committee will achieve a valuable outcome to which end my delegation is ready to fully cooperate with you. We also congratulate the other members of the Bureau on their election.

Turning my attention to the item under consideration, I take this opportunity to commend the International Law Commission for yet another productive session and its Chairman, Ambassador Chusei Yamada, for his insightful introduction of the first chapters of the Commission's report.

Mr. Chairman,

The Czech delegation appreciates the decision of the Commission to complete its work on State responsibility within its next session in 2001. It is a difficult and ambitious task but bearing in mind vast legal skills and experience of members of the Commission and impressive deep analysis of the Special Rapporteur Mr. James Crawford in his reports we have no doubts about the Commission's success in this regard.

My delegation carefully studied the third report of the Special Rapporteur, the discussion of the Commission on it as well as the attached draft articles provisionally adopted by the Drafting Committee on second reading and would like to offer at this stage its views on this outcome:

Taking individual draft articles in a chronological order as presented by the Special Rapporteur let me start with the provision on cessation and non-repetition. Some members of the Commission expressed their misgivings about the relevance and viability of the concept of the assurances of non-repetition in contemporary international relations. Others see this kind of statement as a rather political or moral commitment than as a legal term. My delegation does not share these concerns and supports the incorporation of this principle into articles on State responsibility. We admit that the concept of non-repetition has a limited application but in principle still has its place in daily diplomatic practice. As regards its political or legal nature, my delegation has doubts about the relevance of such a distinction for the purpose of this subject. This question should be rather dealt with in the context of the Commission's work on unilateral acts. With regard to State responsiblity the assurances of non-repetition are closely and logically related to the obligation to cease the wrongful act and in a certain context can offer a tangible proof that the State which has committed an internationally wrongful act recognises its unlawful conduct. As far as the wording of this provision is concerned, having compared the text of the Special Rapporteur on the one hand and the proposal of the Drafting Committee on the other, the Czech Republic has a slight preference for the latter version. In spite of the above-mentioned linkage between cessation and non-repetition it is necessary to reflect them as two seperate concepts as done in the title of the Drafting Committee text. My delegation is also honoured that the Drafting Committee took into consideration the Czech proposal to add the words "if circumstances require" to the paragraph on non-repetition. As the Commission we also believe that with this amendment the provision better expresses dependence of this concept on the particular context.

Mr. Chairman,

Turning to the set of articles on reparation, my delegation is of the opinion that among many partial issues in this regard two questions are of the utmost importance: the first, is it realistic and justifiable to aim at full reparation or should we reconcile with the goal of as much reparation as possible to remedy the consequences of the wrongful act?; the second, whether a priority should be established with respect to the forms of reparation.

There are undoubtedly situations in which unmerciful insisting on full reparation can do more harm than good and history knows such cases. This historic experience shows that deciding on the amount of reparations must be made fully conscious of the specific context of each case and that the injured state should not blindly abide by a theoretical legal concept at all costs. On the other hand, mistakes of the past do not prove the legal principle of full reparation to be wrong. The principle itself has no defects and there is no reason to depart from it.

The concept of full reparation is also directly related to the former article 42, paragraph 3, which provided that reparation must not result in depriving the population of a State of its own means of subsistence. My delegation is of the view that these two approaches do not contradict each other and can co-exist. In no case full reparation should lead to beggaring a State. Protection of items required for livelihood should always be a limit for application of the principle of full reparation.

As regards a priority between the forms of reparation, my delegation is aware that while restitution has frequently occurred in the past it is more rare today. A large number of cases now involve expropriation disputes, where it is politically difficult for the state concerned to return to multinational companies expropriated property. Monetary compensation is therefore clearly of importance in reparation. In spite of the fact, my delegation believes that principles laid down in the Chorzów Factory case before the PCIJ in 1928 still remain valid in contemporary international law. Restitution should therefore remain as a primary means of reparation. Only when this way of solution is practically impossible, compensation should come as a secondary instrument. This succession of forms of reparation seems to be sufficiently expressed in the draft articles adopted by the Drafting Committee but in our view, this priority rule should also be reflected in the provision concerning invocation of responsibility by an injured State. The current text as drafted by the Drafting Committee (Article 44, par.2) gives an injured State full discretion to decide what form of reparation should be applied. Referring to the above-mentioned the Czech delegation is of the view that an injured State is at first obliged to demand restitution if this way of reparation seems to be materially possible.

In regard to satisfaction as the third form of reparation, my delegation notes with concern that the text of the Drafting Committee left the concept of non-material or moral injury. This new approach probably reflects the views in the Commission according to which the term of non-material or moral injury narrows the applicability of satisfaction too much and gives no room for a right to satisfaction in the context of material injury. However, my delegation is convinced that satisfaction is especially tailored to the reparation for an injury not having material character. In case of material injury we can imagine satisfaction as an additional form of reparation accompanying restitution or compensation but hardly as an equal alternative to the first two forms. In case of material damage this form of reparation does not seem to be proportionate and sufficient. The linkage between satisfaction and non-material injury should therefore be kept.

Mr. Chairman,

In conclusion, I would like to briefly touch upon the provision on "mitigation of responsibility" as introduced by the Special Rapporteur in his report. Shortly, my delegation has no problems with this concept and is in favour of its incorporation into the articles. On the other hand, we perceive some contradiction in the title of this provision. We doubt if it is legally precise to speak about mitigation of responsibility. Legal responsibility either exists or does not and there is nothing in between. In our view, this principle should work analogically with the criminal law concept of mitigating circumstances. The application of mitigating circumstances in criminal law does not diminish criminal responsibility of the offender but may moderate a punishment for the offender. Similarly, in the context of State responsibility this principle can not mitigate responsibility of a State but can make legal consequences of the wrongful act less severe or intense for that State. For this reason, we propose to replace the term " mitigation of responsibility" by the words "mitigation of legal consequences of an internationally wrongful act".

Thank you, Mr. Chairman.