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Sixty-second session

Diplomatic protection (agenda item 83)

Summary of work

Background (source: A/62/100)

This item was included in the preliminary list of items to be included in the provisional agenda of the sixty-second session of the General Assembly pursuant to paragraph 3 of Assembly resolution 61/35.

At its sixty-first session, the General Assembly took note of the draft articles on diplomatic protection, adopted by the International Law Commission at its fifty-eighth session, in 2006, and invited Governments to submit comments concerning the recommendation of the Commission that the Assembly elaborate a convention on the basis of the draft articles (resolution 61/35).

Consideration at the sixty-second session

The Sixth Committee considered agenda item 83 at its 10th, 27th and 28th meetings, on 19 October and on 12 and 19 November 2007.

Statements were made by the representatives of Canada (also on behalf of Australia and New Zealand), Norway (on behalf of the Nordic countries, Denmark, Finland, Iceland, Sweden and Norway), Portugal, Cuba, El Salvador, Guatemala, Venezuela, China, Poland, Mexico, Germany, Malaysia, Austria, South Africa, Japan, United States of America, Kenya, Brazil, Greece, the Russian Federation, the United Kingdom, India, Iran (Islamic Rep. of) and Ecuador.

All speakers expressed their gratitude to the International Law Commission, and its Special Rapporteur, Mr. John Dugard (South Africa) for the completion of the work on the draft articles on diplomatic protection.

As regards the recommendation of the Commission that the General Assembly adopt an international convention on the basis of the draft articles, several speakers expressed support for the adoption of the draft articles in the form of a convention. It was proposed that an Ad Hoc Committee be established with a mandate to elaborate an international convention. Other similar suggestions included the establishment of a working group of the Sixth Committee to consider the draft articles.

Several other speakers preferred to allow more time for reflection and for the evolution of State practice on the basis of the draft articles. Proposals included: maintaining the item of the agenda of the General Assembly; including on a triennial basis, or revisiting the topic in 2012; or taking note of the draft articles attaching them to the General Assembly’s resolution and commending them to Governments without prejudice to any future action to be taken on them. Opposition was expressed to attaching the draft articles to a General Assembly resolution, which might render them mere “guidelines”.

In terms of substantive suggestions, it was proposed that draft article 6 be refined to clarify that once diplomatic protection has been exercised by one State another State of nationality would be precluded from doing so too. It was noted that draft article 7, on multiple nationality, had created confusion in the area of consular law. It was maintained that the requirement of preponderance needed to be reconsidered in light of globalization. The view was also expressed that draft article 8, on the protection of refugees and stateless persons, set too high a threshold. Concerns were also expressed regarding draft articles 11 and 12 on the protection of shareholders of companies. Other suggestions included deleting draft article 13 on the protection of other legal persons and 19 on “recommended practice”. It was also suggested that a stronger emphasis be placed on the “right” of the individual to diplomatic protection, especially in the context of jus cogens violations.

Action taken by the Sixth Committee

At the 27th meeting, on 12 November 2007, the delegation of South Africa, on behalf of the Bureau, introduced a draft resolution, entitled “Diplomatic protection” (A/C.6/62/L.13). At the 28th meeting, on 19 November, the Committee adopted draft resolution A/C.6/62/L.13 without a vote.

This agenda item was subsequently considered at the sixty-fifth session (2010)