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Sixty-fifth session

Diplomatic protection (Agenda item 80)

Summary of work

Background (source: A/65/100)

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 fiftyeighth 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).

At its sixty-second session, the General Assembly decided to further examine, within the framework of a working group of the Sixth Committee, in the light of the written comments of Governments, as well as views expressed in the debates held at the sixty-second session of the Assembly, the question of a convention on diplomatic protection, or any other appropriate action, on the basis of the abovementioned articles (resolution 62/67).

Consideration at the sixty-fifth session

The Sixth Committee considered the item at its 16th and 27th meetings, on 20 October and 5 November 2010, respectively.

Pursuant to resolution 62/67, the Committee decided, at its 1st meeting, on 4 October 2010, to establish a Working Group on Diplomatic Protection, in order to fulfil the mandate conferred by the General Assembly on the Committee, namely, to further examine, in the light of the written comments of Governments as well as views expressed in the debates held at the sixty-second session of the General Assembly, the question of a convention on diplomatic protection, or any other appropriate action, on the basis of the articles drafted by the International Law Commission. At the same meeting, the Committee decided to open the Working Group to all States Members of the United Nations or members of the specialized agencies or of the International Atomic Energy Agency. The Working Group, which was chaired by Ms. Eva Šurková (Slovakia), held one meeting, on 20 October 2010. At the 27th meeting of the Sixth Committee, on 5 November, the Chair of the Working Group presented an oral report on the work of the Working Group.

Statements were made in plenary by the representatives of: Norway (on behalf of the Nordic countries), Chile (on behalf of the RIO Group), Australia (also on behalf of Canada and New Zealand), the Libyan Arab Jamahiriya, Germany, the Russian Federation, Malaysia, the United Kingdom, the United States of America, Portugal, Austria, El Salvador, Belgium, Venezuela (Bolivarian Republic of), Iran (Islamic Republic of), Cuba and South Africa.

Several delegations expressed support for the adoption of the articles on Diplomatic protection in the form of a convention. It was noted that a convention on diplomatic protection would enable the harmonization of State practice and jurisprudence on this topic as well as enhance the rule of law at all levels and contribute to the peaceful settlement of disputes. The view was expressed that while it might be advantageous to adopt the articles in the same form as the articles on the Responsibility of States for internationally wrongful acts of 2001, it was feasible to adopt different approaches and timings in terms of the final form of the two sets of articles. It was also proposed that a working group of the Sixth Committee be established to consider the articles on diplomatic protection.

Several other delegations preferred to allow more time for reflection and for the evolution of State practice on the basis of the articles. Delegations considered that the fate of the articles on diplomatic protection was closely bound up with that of the articles on the Responsibility of States for internationally wrongful acts. In the absence of consensus on the elaboration of a convention on the basis of the articles on the Responsibility of States for internationally wrongful acts, it would be premature to commence negotiations on a convention based on the International Law Commission’s articles on Diplomatic protection. It was proposed that at this stage the articles should be annexed to a General Assembly resolution. The view was also expressed that the General Assembly should take no further action on the articles.

Action taken by the Sixth Committee

At the 27th meeting, on 5 November, the representative of Slovakia, on behalf of the Bureau, introduced a draft resolution entitled “Diplomatic protection” (A/C.6/65/L.9). At the same meeting, the Committee adopted draft resolution A/C.6/65/L.9 without a vote.

Under the terms of the draft resolution, the General Assembly would invite Governments to submit in writing to the Secretary-General any further comments, including comments concerning the recommendation by the International Law Commission to elaborate a convention on the basis of the articles. In addition, the General Assembly would decide to include in the provisional agenda of its sixty-eighth session an item entitled “Diplomatic protection” and, within the framework of a working group of the Sixth Committee, in the light of the written comments of Governments, as well as views expressed in the debates held at the sixty-second and sixty-fifth sessions of the General Assembly, to further examine the question of a convention on diplomatic protection, or any other appropriate action, on the basis of the above-mentioned articles and to also identify any difference of opinion on the articles.

This agenda item was subsequently considered at the sixty-eighth session (2013).