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Sixth Committee of the 57th General Assembly

57th Session of the General Assembly, Sixth Committee, Statement on Agenda Item 156: "Report of the International Law Commission on the work of its fifty-fourth session"New York, October 30, 2002 Statement by Mr. Miloslav Petru, Representative of the Czech Republic in the Sixth

  • 57th Session of the General Assembly, Sixth Committee, Statement on Agenda Item 156: "Report of the International Law Commission on the work of its fifty-fourth session"
    New York, October 30, 2002


Statement by Mr. Miloslav Petru, Representative of the Czech Republic in the Sixth Committee of the 57th UN General Assembly on Agenda Item 156: "Report of the International Law Commission on the work of its fifty-fourth session"
New York, October 30, 2002

Mr. Chairman,

At the outset of the Czech delegation´s address to the Sixth Committee on the agenda item No. 156: "Report of the International Law Commission on the work of its fifty-fourth session" (hereinafter referred to as "the Report"), allow me to convey my delegation´s sincere thanks to Mr. Robert Rosenstock, Chairman of the 54th session of the International Law Commission, for both his dedicated leadership of this year´s session of the Commission and his lucid introduction to Chapters I, II, III and particularly Chapter V of the Report. The Czech delegation would also like to express its gratitude to the distinguished members of the International Law Commission as well as to its Secretariat for the outcome of the Commission´s first session in its new quinquennium.

In this statement my delegation would like to focus on the topic "Diplomatic protection" and later to offer our brief comments concerning the new topics included on the Commission´s agenda.

Mr. Chairman,

We have studied with great interest the third report of Mr. John R. Dugard, Special Rapporteur of the International Law Commission on the topic "Diplomatic protection" as well as the Commission´s deliberations on this topic.

The Czech delegation wishes to commend the Special Rapporteur for continuing a thorough examination and evaluation of the traditional approaches and principles applied in the field of diplomatic protection, in the light of recent developments in international law.

The rule of exhaustion of local remedies has always played an important role not only within the concept of diplomatic protection but also within other concepts of international law concerning the protection of individuals. It is my delegation´s belief that the exhaustion of the local remedies rule is a generally accepted precondition for the exercise of diplomatic protection.

My delegation notes with interest the Special Rapporteur´s profound study on the nature of the exhaustion of the local remedies rule resulting in draft articles 12 and 13. Although we attach certain amount of importance to this subject, we are aware of the controversy of the subject in question, as well as of its rather academic character. In addition, in my delegation´s view, the provisions of draft articles 12 and 13 are, in principle, covered by draft articles 10 and 11. Therefore, we consider draft articles 12 and 13 to be unnecessary.

Special Rapporteur´s draft article 14 and the Commission´s deliberations on it proves how difficult and delicate any attempt to define exceptions from the exhaustion of the local remedies rule can be, in particular with regard to the definition of the requirement of effectiveness of local remedies. My delegation is of the opinion that the Special Rapporteur´s draft article 14, paragraph (a), option 3, can be considered as a solid basis for further Commission´s deliberations on exceptions to the rule of exhaustion of local remedies. Article 44 on Responsibility of states for internationally wrongful acts should be taken into consideration. As to the exhaustive list of exceptions to the rule of exhaustion of local remedies, my delegation considers draft article 14 paragraph (e) and (f) to be already covered by the requirement of effectiveness provided for in draft article 14 paragraph (a) and thus could be omitted.

The Czech delegation would equally like to commend the Special Rapporteur for the Addendum to his third report in which the historic and recent developments of the so-called Calvo Clause are to be found and which will unquestionably serve as an excellent study-material for scholars, international lawyers and other persons interested in this controversial concept. As a result of his thorough study of the so-called Calvo Clause, the Special Rapporteur produced for and presented to the Commission draft article 16. Recalling, in particular, the principle provided for in draft articles 1 and 2, according to which diplomatic protection is the right of a State, and being convinced that the so-called Calvo Clause represents not a rule of international law but merely a contractual stipulation between a State and an individual to be found in so-called diagonal treaties, my delegation is of the opinion that the inclusion of draft article 16 would not be appropriate from the conceptual point of view and that the so-called Calvo Clause should, therefore, not be dealt with within the codification of diplomatic protection.

Turning now to draft articles adopted by the Commission on the first reading the Czech delegation notes with satisfaction the current wording of draft article 1 which confirms the traditional concept of diplomatic protection as the exclusive right of a State to peacefully intervene in favor of its national against another State in case of an injury to that national inflicted by an internationally wrongful act of the latter State, thus clearly differentiates diplomatic protection from other concepts of international law dealing with the protection of individuals. In the view of my delegation, draft article 2 merely reiterates the principle already laid down in draft article 1, i. e. that a State is under no obligation to exercise diplomatic protection. My delegation shares the Commission´s view that even a limited duty of a State to exercise diplomatic protection does not reflect progressive developments of international law.

The Czech delegation further welcomes the Commission´s decision to deal with an important question of diplomatic protection exercised by a State in favor of stateless persons and refugees. Draft article 7, which constitutes an exception to the traditional concept of diplomatic protection as defined in draft article 1, represents in the view of my delegation an example of progressive development of international law, which my delegation fully supports.

As for the Commission´s questions contained in paragraph 27 of the Report, my delegation does not favor the proposal to extend draft articles on diplomatic protection of draft articles on diplomatic protection exercised by the State of nationality of a ship or aircraft on behalf of crew members and passengers who hold the nationality of a State different from the ship´s or aircraft´s State. In this connection my delegation recalls the principle reflected in draft article 3, according to which it is the so-called nationality link between a State and an individual which entitles a State to exercise diplomatic protection on behalf of an individual. Furthermore, my delegation is of the opinion that the inclusion of the above-mentioned questions in the Commission´s consideration of diplomatic protection would prevent the Commission from concluding its work on this topic within the Commission´s current term of office.

Mr. Chairman,

Having finished the topic "Responsibility of States for internationally wrongful acts" during the Commission´s 53rd session it was generally anticipated that this remarkable achievement would be followed by the inclusion of the topic "Responsibility of international organizations" in the Commission´s programme of work.

The growing number of international governmental organizations and consequently the growing number of various relations among those organizations, their member States and non- member States, and an abundance of controversial and frequently discussed questions relating to the responsibility of international organizations, such as the question of attribution of wrongful conduct and the question of the so-called joint responsibility, have made this topic to be of significant relevance in everyday practice and called for a profound study by an appropriate international body.

Therefore, my delegation welcomes the Commission´s decision to commence its study on this topic and supports the Commission´s intentions outlined in Chapter VIII of the Report.

Thank you, Mr. Chairman.