Agenda Item 144

Report of the International Law Commission on the work of its fifty-sixth session

Diplomatic Protection

New York, November 1, 2004

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Mr. Chairman,

Addressing for the first time the agenda item No. 144: "Report of the International Law Commission on the work of its fifty-sixth session", I would like to thank Mr. Teodor Viorel Melescanu, Chairman of the 56th session of the Commission, for the efficient manner in which he conducted the Commission´s session this year and for his lucid introduction to the first four Chapters of the Report and to Chapters VII and XI of the Report. My delegation also wishes to express its gratitude to the distinguished members of the Commission as well as to the Commission´s Secretariat for an excellent outcome of the 56th session of the Commission as contained in document A/59/10.

Mr. Chairman,

I will limit my intervention today to the topic "Diplomatic Protection". In view of paragraph 23 and 24 of the Report, first, I would like to state comments and observations of the Czech Delegation on draft articles on diplomatic protection as adopted by the Commission on first reading and on the commentaries to them. Then, I would like to offer observations of my delegation concerning the fifth and sixth report of the Special Rapporteur on diplomatic protection.

Mr. Chairman,

The Czech Delegation welcomes the fact that the Commission completed first reading of the draft articles on diplomatic protection at its 56th session. It is our hope that the progress the Commission achieved on diplomatic protection at this year´s session will enable the Commission to conclude its work on this topic in the very near future.

The Czech Republic has been closely following the work of both the two Special Rapporteurs and the Commission on diplomatic protection since this topic had been taken up by the Commission in 1997. The Czech Republic demonstrated its great interest in the topic of diplomatic protection by making oral statements on the subject-matter in the Sixth Committee´s sessions in 2000, 2002 and 2003. I will therefore constraint my intervention today to those comments and observations on the draft articles on diplomatic protection we consider to be the most important ones.

As far as Articles 1, 2 and 3 of the draft articles are concerned, the Czech Delegation notes with satisfaction that the Commission has decided to stick to the traditional concept of diplomatic protection according to which it is the so-called State of nationality who is entitled, not obliged, to present, on its own behalf, an international claim in respect of an injury inflicted on its national, either natural or legal person, by an alleged internationally wrongful act of another State.

As regards Part Two of the draft articles, focusing on various conditions under which a State is entitled to exercise diplomatic protection in respect to an injury a natural or legal person has suffered from an alleged internationally wrongful act of another State, I would recall detailed comments made by the Czech Republic at previous sessions of the Sixth Committee. Having said that, however, I would like to reaffirm my delegation´s satisfaction with the fact that the basic principle of the draft articles concerning the exercise of diplomatic protection of corporation reflects the general rule that the International Court of Justice expounded in its judgement on the Barcelona Traction case, namely that it is a State of nationality of a corporation which has the exclusive right to exercise diplomatic protection in respect of an injury the corporation sustained as a result of an alleged internationally wrongful act of another State. I would also like to state that we support the Commission´s position according to which the rule expounded by the International Court of Justice in the notoriously known Nottebohm case should not be interpreted as a general rule of international law applicable to all States.

Part Three of the draft articles deals with the exhaustion of local remedies rule and exceptions to this rule. The rule, which makes the presentation of an international claim against a State conditional upon the exhaustion of qualified local remedies of that State, is "a well-established rule of customary international law", as stated by the International Court of Justice in its judgement on the Interhandel case, applicable not only to diplomatic protection cases but also to other concepts of international law concerning protection of natural and legal persons. While the exhaustion of local remedies rule is an undisputed part of the current international law, there are many uncertainties and lack of a clear authority in respect of a comprehensive list of situations in which the rule should be applied. My delegation agrees in principle with exceptions to the exhaustion of local remedies rule as articulated in draft article 16, paragraph (a) (the test of "effectiveness" of local remedies), paragraph (c) ("the great hardship" test), and paragraph (d) (the possibility of waiving the requirement of the exhaustion of local remedies). My delegation is not, however, convinced of the need to include a separate provision concerning undue delay or unreasonably prolonged proceedings in the draft articles. In our view, the so-called undue delay, causing remedial proceedings to be ineffective, is already covered by the current wording of paragraph (a) of Article 16. We are therefore of the opinion that paragraph (b) of Article 16 could be omitted.

Turning now to Part Four of the draft articles, Miscellaneous Provisions, my delegation would like to reiterate its misgivings about the extension of the scope of the present draft articles to protection exercised by a flag State in relation to an injury inflicted on members of the crew of a ship who are nationals of a State different from the flag State. As one of the key requirements for the exercise of diplomatic protection is the existence of the so-called nationality link between a State exercising diplomatic protection and a person who has sustained an injury in respect of which diplomatic protection is being exercised, we are of the view that the above-mentioned regime of protection exercised by a flag State does not belong to the scope of the present draft articles. We believe that the existence of such a regime of protection could be reflected in the commentary to Article 17 of the draft articles dealing with actions and procedures under international law other than diplomatic protection.

Mr Chairman,

As I indicated at the beginning of my intervention, I would like to comment briefly on the fifth and sixth report of the Special Rapporteur on diplomatic protection. The Czech Delegation, once again, commends the Special Rapporteur for his swift, yet thorough, and highly valuable work he has done on the topic in question.

As far as the fifth report is concerned, my delegation appreciates in particular observations of the Special Rapporteur concerning the issue of the delegation of the right to exercise diplomatic protection and the issue of the transfer of a claim to diplomatic protection as contained in Chapter B of the fifth report. My delegation concurs with the Special Rapporteur´s conclusions concerning the above-mentioned issues.

The sixth report of the Special Rapporteur deals exclusively with the doctrine of clean hands. Pursuant this doctrine, as invoked in the context of diplomatic protection, a State should be prevented from exercising diplomatic protection in respect to an injury its national has suffered from an internationally wrongful act of another State, when the injury is a consequence of a wrongful act of that national. My delegation would, however, recall that the draft articles on diplomatic protection, as adopted by the Commission on first reading, are based on the traditional concept of diplomatic protection according to which the so-called State of nationality, when exercising diplomatic protection, is adopting in its own right the cause of its national against another State. We are, therefore, of the view that the clean hands doctrine in the context of diplomatic protection may be invoked against a State exercising diplomatic protection only in relation to acts of this State, which are inconsistent with its international law obligations, and not in relation to a misconduct of a national of this State. Having studied the Special Rapporteurs comments pertaining to the existence and applicability of the clean hands doctrine in the context of diplomatic protection, my delegation tends to agree with his conclusions that there is no clear and sufficient authority which would justify the inclusion of a provision on the clean hands doctrine in the draft articles.

I thank you, Mr. Chairman.