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Statement by Mr. Milan Dufek, Head of Public International Law Division, Ministry of Foreign Affairs of the Czech Republic

Agenda Item 78: Report of the International Law Commission, Diplomatic Protection

Statement by

Mr. Milan Dufek
Head of Public International Law Division
Ministry of Foreign Affairs of the Czech Republic


Agenda Item 78:
Report of the International Law Commission
Diplomatic Protection

New York, October 26, 2006


Mr. Chairman,

On behalf of the Czech Republic, I want to thank all members of the International Law Commission for their work. Let me also express our special thanks to the Secretary of the Commission. The Czech Republic greatly appreciates the work of the Commission and the successes it has achieved this year.

In this statement, I would like to focus on the topic of diplomatic protection.

The Czech Republic welcomes the adoption of the final set of draft articles on diplomatic protection at this year´s session of the International Law Commission. We consider this one of the major achievements of the Commission's quinquennium that is now drawing to its close. In this spirit, we would like to express our deep appreciation to the Commission as a whole, and namely to the Special Rapporteur on this topic, Mr. John Dugard, who has continued the work of the first Special Rapporteur, Mr. Mohammed Bennouna. Mr. Dugard´s clear and well-reasoned reports greatly facilitated the work of the Commission and will certainly continue to be valued as an excellent and thorough analysis of the international law rules of diplomatic protection.
Mr. Chairman,

The adopted final version of the draft articles on diplomatic protection, this classical topic of international law, merit much more thorough study and discussion than has been possible in the short time that has elapsed since their publication. Therefore, the Czech delegation would limit itself at this stage to a few general remarks on certain basic elements of the draft articles and their future form.

First, we find the final set of the draft articles satisfactory as a whole. The draft articles, including the commentaries, are a substantial and valuable contribution to the codification and progressive development of international law. In our opinion, it duly reflects the recognized fundamental principles of customary international law in this area. We also appreciate that in the several instances where customary international law does not provide a clear basis for codification, the Commission decided in favour of broader protection of the rights of injured persons. We believe that this was the right course to take - for example, let me mention the adopted draft Article 5, paragraph 1, where the Commission decided that the dies ad quem for the exercise of diplomatic protection of a natural person would be the date of the official presentation of the claim, rather than the date of the resolution of the claim. Another example of this kind is the exemption from the continuous nationality rule in draft Article 5, paragraph 2.

The Czech delegation also welcomes the draft articles that mark a step forward in the progressive development of the international law rules of diplomatic protection. We have in mind, in particular, draft Article 8 concerning the exercise of diplomatic protection in respect of stateless persons and refugees, and draft Article 19 concerning the recommended practice of the State entitled to exercise diplomatic protection in considering whether it should exercise diplomatic protection on behalf of the injured person and in actually exercising the protection. As we have noted in our previous statements on this topic, in our opinion draft Article 8 gives proper effect to the principle of non-discrimination of stateless persons and refugees and closes yet another gap in their international protection. As for draft Article 19, we consider it important mainly because diplomatic protection is often the only effective remedy to secure protection of persons injured as a result of an internationally wrongful act of another State. This happens especially when there is no recourse to the procedures established by international human rights treaties and when other rules of international law, including the rules on the immunities of States and their property, prevent the individual from presenting the claim against the State responsible for the injury. On the other hand, since the Commission attaches great importance to the link between diplomatic protection and the protection of human rights, we would welcome a more detailed commentary on situations where the injured individual dies - particularly as a consequence of a significant injury caused by a foreign State - before the State of nationality of the injured individual officially presents the claim with respect to such injury. We think that the adopted commentaries to the draft articles, including the commentary to draft Article 5 that expressly deals with such situations, do not quite clearly answer all questions posed by these cases in the context of diplomatic protection.

Mr. Chairman,

My last remark concerns the future form of the draft articles. In paragraph 46 of its report from this year´s session, the Commission recommended the General Assembly the elaboration of a convention on the basis of the draft articles. However, the Czech delegation is of the view that the articles should, at least at this stage, remain in a non-binding form and that the General Assembly should treat them as it treated the articles on responsibility of States for internationally wrongful acts adopted in 2001; that is, the General Assembly should adopt a resolution noting and welcoming the draft articles and including an annex with their full text. We believe that even in the non-binding form the articles can serve all practical purposes. Furthermore, there is a connection and similarity, both in terms of substance and nature, between the draft articles on diplomatic protection and the articles on responsibility of States for internationally wrongful acts. Accordingly, we are of the opinion that the future form of the articles on diplomatic protection should be bound up with the final form of the articles on responsibility of States for internationally wrongful acts.

In conclusion, in the view of my delegation the final set of draft articles on diplomatic protection is a significant contribution to the codification and progressive development of international law. Whatever the final form of the adopted draft articles, it will serve in practice as well as in theory as a complex and highly authoritative guideline in the field of diplomatic protection.

Mr. Chairman,

To conclude with, let me just briefly touch upon the issue of the future agenda of the Commission. The Czech Republic believes that the focus should be on topics for which there is abundant case law and established State practice, or topics that reflect the consistence and continuity of the work of the Commission, rather than time-serving interests. From this perspective, topics such as the immunity of State officials from foreign criminal prosecution or jurisdictional immunity of international organizations are perhaps closest to the ideal.


Thank you, Mr Chairman.