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Sixty-eighth session

Diplomatic Protection (Agenda item 82)

Summary of work

Background (source: A/68/100)

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, invited Governments to submit comments concerning the recommendation of the Commission that the Assembly elaborate a convention on the basis of the draft articles, and decided to include in the provisional agenda of its sixty-second session an item entitled “Diplomatic protection” (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 above-mentioned articles (resolution 62/67).

At its sixty-fifth session, the General Assembly commended once again the articles on diplomatic protection to the attention of Governments, and invited them to submit in writing to the Secretary-General any further comments, including comments concerning the recommendation by the Commission to elaborate a convention on the basis of the articles; and 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 and sixty-fifth sessions of the Assembly, the question of a convention on diplomatic protection, or any other appropriate action, on the basis of the abovementioned articles and to also identify any difference of opinion on the articles (resolution 65/27).

Consideration at the sixty-eighth session

The Sixth Committee considered the item at its 15th, 28th and 29th meetings, on 21 October, 8 November and 15 November 2013 (see A/C.6/68/SR.15, 28 and 29).

Pursuant to resolution 65/27, the Committee decided, at its 2nd meeting, on 7 October 2013, 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 and sixty-fifth sessions 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 and also to identify any difference of opinion on the articles. 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 Mr. Thembile Joyini (South Africa), held one meeting, on 23 October 2013.

Statements were made by the representatives of: Cuba (on behalf of the Community of Latin American and Caribbean States (CELAC)), Norway (on behalf of the Nordic countries), Saudi Arabia, the United States of America, Portugal, Zambia, the Philippines, Cuba, Eritrea, the United Kingdom of Great Britain and Northern Ireland, Chile, the Russian Federation and Iran (Islamic Republic of).

Several delegations expressed support for the adoption of the articles on diplomatic protection in the form of a convention. While several delegations underlined that such adoption would enable the harmonization of State practice and jurisprudence in this topic, others pointed to the important role of the draft articles in clarifying and developing norms of customary international law relating to diplomatic protection. The enhancement of legal certainty which a future convention may have was also stressed. Some delegations recalled the positive effect that diplomatic protection had had on human rights protection. It was also stated that a convention would serve the peaceful settlement of disputes, address existing gaps in international law and enhance the rule of law. Despite the link between the draft articles on diplomatic protection and those relating to the responsibility of States for internationally wrongful acts of 2001, the independence of the two sets of draft articles was emphasized. The draft articles on diplomatic protection were considered by some as a good basis for elaborating an international convention. It was also suggested that the draft articles could be finalized by the working group of the Sixth Committee to achieve broader acceptance by Member States.

Several other delegations expressed their preference for not developing a convention on the basis of the draft articles at that stage and for allowing more time to further consider their content. The concern was expressed that attempts to negotiate a convention at that point could risk opening up a debate that may undermine the already substantial contributions of the draft articles. Doubts were expressed that the draft articles satisfied the need for the delicate balance between the rights of individuals and the rights of States, and the view was expressed that the time was not ripe to transform them into an international legally binding instrument. Some also favoured allowing the draft articles some time to inform, influence and settle State practice. It was also stated that any decision to begin negotiating a convention in respect of diplomatic protection would be premature in the absence of a consensus on the elaboration of a convention on the basis of the articles on the responsibility of States for internationally wrongful acts, given the close connection between the two sets of draft articles. Several delegations recommended that, at that juncture, the draft articles should be taken note of and be fully taken into consideration as guidance and inspiration of State practice.

Action taken by the Sixth Committee

At the 28th meeting, on 8 November 2013, the representative of South Africa, on behalf of the Bureau, introduced a draft resolution entitled “Diplomatic protection” (A/C.6/68/L.16). At the 29th meeting, on 15 November 2013, the Committee adopted draft resolution A/C.6/68/L.16 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 seventy-first 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, sixty-fifth and sixty-eighth 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.

The agenda item will be considered next at the seventy-first session (2016).