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Diplomacy in Action

55. Legal Adviser Bellinger's statement before UN 6th Committee (ILC report) re "Diplomatic Protection" (October 25, 2006)


United States Statement
UN General Assembly Sixth Committee – October/November 2006
Report of the International Law Commission on the Work of its 58th Session
Chapters I-III & XIII; Diplomatic Protection; International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law (International Liability in Case of Loss from Transboundary Harm Arising out of Hazardous Activities)

Thank you, Mr. Chairman. I am pleased to see you in the Chair and appreciate your guidance and leadership of the Committee on these important topics relating to the International Law Commission.

We commend the International Law Commission for its continued commitment to excellence, as demonstrated by the quality of the report before us. In particular, we would like to thank the Chair of the Commission, Mr. Guillaume Pambou-Tchivounda, for this session and each of the Special Rapporteurs for their stewardship and guidance on these many important – and difficult – topics.

I will keep my comments to the first cluster of items on the agenda, but since a few of these items address the report as a whole let me start by expressing our deep gratitude for the important work of the International Law Commission. Secretary of State Rice has repeatedly emphasized that respect for international law is essential to relations among States. Secretary Rice highlighted this in her participation, along with the President of the International Court of Justice, in the American Society of International Law’s Centennial meeting, which I know many in this room attended. The United States greatly appreciates the central role and important contributions of the International Law Commission in the progressive development and codification of international law as fundamental to this objective.

Diplomatic Protection

With respect to the Commission’s work on Diplomatic Protection, the revised articles and commentaries on Diplomatic Protection represent a significant contribution for which all participants in the process, past and present should be commended. We thank the Chairman of the Commission for his lucid statement introducing the draft articles at the outset of the Committee’s consideration of the ILC report. In addition, we thank the Special Rapporteur, Mr. John Dugard, for his efforts in furthering the Commission’s work on this topic.

Initially, I would like to make two procedural comments. First, the United States does not believe that it would be advisable to attempt to adopt a binding instrument on this topic. On only a limited set of issues do the draft articles deviate from settled customary international law and it is doubtful that those limited issues warrant the expense and other requirements of an international conference. Second, the Commission adopted the draft articles and commentaries this year, and they have only become available recently. Because of the number of issues addressed in the draft articles and commentaries, the volume of the commentaries, and the limited time governments have had to review them, our government will want to study them carefully. Our view is that, at this session, the General Assembly, in its resolution dealing with the ILC report, should thank the Commission for completing its work on this matter, note the receipt of the draft articles and commentaries, and recommend that governments study them carefully.

I would now like to give the views of the United States on a number of aspects of the draft articles and commentaries. Because we plan to continue our review of the commentaries, and look forward to considering the views of other governments as well, my comments on them will only be preliminary.

The United States welcomes the changes the Commission made over the past year to a number of the provisions in preliminary drafts of the articles to reflect customary international law more accurately. We also welcome the commentary’s clarifications that certain articles represent progressive development of the law. We think it is useful that paragraph 8 of the commentary on article 1 makes clear that diplomatic protection does not include demarches or other diplomatic action that do not involve the invocation of the legal responsibility of another State, such as informal requests for corrective action. We are pleased that paragraph 2 of the commentary to article 2 reaffirms that a State is under no obligation to exercise diplomatic protection, since the question of whether to espouse claims formally is a sovereign prerogative, the exercise of which necessarily implicates other considerations of national interest.

We are also pleased that the draft articles honor the established principle of continuity of nationality as a prerequisite to the exercise of diplomatic protection on behalf of natural and corporate persons in articles 5 and 10 and, by implication, in articles 7 and 8. We believe, though, that these articles inappropriately diverge from customary international law in not extending that requirement beyond the date of official presentation of the claim to the date of resolution, except in cases where, subsequent to presentation, the injured person acquires the nationality of the respondent State or, as stated in the commentary, acquires the nationality of a third State in bad faith. In our view, the customary international law rule is that reflected in the clear record of State practice and in the most recent articulation of the rule that appears in the award of the arbitral tribunal in the case of The Loewen Group Inc. v. United States of America. As the Tribunal in that case stated, “[i]n international law parlance, there must be a continuous national identity from the date of the events giving rise to the claim … through the date of the resolution of the claim….” We believe the draft articles inappropriately deviate from customary international law in other respects as well, as we have previously observed in written comments and will detail further in the future.

We welcome article 12’s restatement of the customary international law rule that a State of nationality of shareholders can exercise diplomatic protection on their behalf when they have suffered direct losses. We do not believe, however, that draft article 11’s two exceptions to the rule that preclude the diplomatic protection of shareholders with respect to an injury to the corporation reflect customary international law. We note that the International Court of Justice left these questions undecided in its Judgment of February 5, 1970, in the Barcelona Traction case, since the circumstances for their consideration did not arise in the case. Moreover, the Case Concerning Electronica Sicula, S.p.A. (ELSI) involved only claims of direct injury to the shareholders and thus cannot be read to support these exceptions.

We also welcome article 14’s reaffirmation that a State may not present an international claim before the injured person has exhausted all local remedies. Paragraph 14 of the commentary makes clear that this does not preclude the possibility that the exhaustion of local remedies may result from the fact that another person has submitted the substance of the same claim to a court of the respondent State. The United States has taken the position that under customary international law local remedies do not have to be exhausted where the local remedies are obviously futile or manifestly ineffective. We are pleased that, while article 15(a) states the proposition somewhat differently, paragraph 4 of the commentary makes clear that that neither a low possibility of success nor the difficulties and costs of further appeals are sufficient, and that the test is not whether a successful outcome is likely or possible but whether the municipal system of the respondent State is reasonably capable of providing effective relief.

We have had only a limited opportunity to study the valuable and detailed commentaries and are in a position to note only a few preliminary concerns. As I have noted, we will study further the commentaries and their impact on the draft articles.

International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law (International Liability in Case of Loss from Transboundary Harm Arising out of Hazardous Activities)

Like the work on Diplomatic Protection, the principles on international liability for injurious consequences arising out of acts not prohibited by international law also represent a significant contribution for which all participants in the process should be commended. We thank the Chairman of the Commission for his concise introduction of the draft articles, as well as the Special Rapporteur, Mr. P.S. Rao, for his efforts in furthering the Commission’s work on this topic.

We believe that the principles are a positive step toward encouraging States to establish mechanisms to provide prompt and adequate compensation for victims of transboundary harm. They incorporate progressive ideas such as the responsibility of operators, the desirability of backup financial security measures, the importance of prompt response measures, and broad concepts of compensable harm. They also stress the importance of national, bilateral, regional, and sectoral arrangements to carry out these ideas. As a result, they will be an important framework for encouraging State action and for the further development of national and international law on these points.

In addition, we believe that it is particularly appropriate that the principles take the form of non-binding standards of conduct and practice. Indeed, we note and support the commentary’s characterization of this document as a “a non-binding declaration of draft principles.” As we have remarked previously in this forum, the principles are clearly innovative and aspirational in character rather than descriptive of current law or State practice. At present, there is no consensus on “liability” or loss allocation where injurious consequences arise from acts not prohibited by international law. As a result, we welcome the Commission’s recommendation, encourage the General Assembly to welcome the principles as aspirational standards of conduct and practice, and urge States to take national and international action to implement them. The General Assembly should not take any action to convert them into a convention.

New Topics Proposed

Finally, with respect to the new topics proposed for the Commission’s long-term agenda, we would like to note with appreciation how thorough and helpful the background papers on these topics have been.

We believe the Commission should place highest priority on topics that are ripe for development and hold the most promise for making a positive contribution to practical problems. In this regard, we would particularly applaud the Secretariat and the Commission for putting forward the proposed topic on Protection of Persons in the Event of Disasters. Its focus on real-world problems, such as those related to the improvement of coordination among aid providers and the facilitation of access of people and equipment to affected areas, has the potential to generate practical legal tools that will help alleviate human suffering when disaster strikes. This is a noble charge, and we encourage the Commission not only to put this topic on the long-term agenda but to consider moving it quickly to its agenda for active consideration. We note some concern that work on these practical measures could be sidetracked or delayed if the Commission steers its work in the direction of a rights-based approach, and encourage it to keep a sharp focus on the development of concrete legal tools that will directly address problems on the ground.

We see less utility for work by the Commission on the proposed topic of Protection of Personal Data in Transborder Flow of Information. This is a highly complex and technical subject, which is being considered in several other fora and about which there remain significant unresolved political and policy debates. We also question whether the topic meets the Commission’s criteria for addition to the long-term agenda or active consideration in that it does not appear to be “sufficiently advanced in stage in terms of State practice to permit progressive development and codification.”

Thank you, Mr. Chairman.

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