Sixth Committee (Legal) — 71st session

Diplomatic protection (Agenda item 79)

Documentation

Summary of work

Background (source: A/71/100)

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, 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, and decided to include in the provisional agenda of its sixty-second session an item entitled “Diplomatic protection” (resolution 61/35).

At its sixty-fifth and sixty-eighth sessions, 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. 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, sixty-fifth and sixty-eighth sessions of the Assembly, 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 (resolutions 65/27 and 68/113).

Consideration at the seventy-first session

The Sixth Committee considered the item at its 9th, 10th, 31st and 32nd meetings, on 7 and 10 October, and 4 and 7 November 2016 (see A/C.6/71/SR.9, 10, 31 and 32). For its consideration of the item, the Committee had before it the report of the Secretary-General (A/71/93 and Corr.1).

Pursuant to General Assembly resolution 68/113 of 16 December 2013, at its 1st meeting, on 3 October, the Committee established a Working Group on Diplomatic Protection 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, sixty-fifth and sixty-eighth sessions of the General Assembly, the question of a convention on diplomatic protection, or any other appropriate action, on the basis of the articles on diplomatic protection and to also identify any difference of opinion on the articles. The Working Group was open to all States Members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency. The Committee elected Mr.  Thembile Joyini (South Africa) as the Chair of the Working Group. The Working Group held two meetings, on 17 and 19 October 2016. At its 31st meeting, on 4 November 2016, the Committee heard and took note of the oral report of the Chair of the Working Group (see A/C.6/71/SR.31).

During the general debate on the item, statements were made by the representatives of the Dominican Republic (on behalf of the Community of Latin and Caribbean States (CELAC)), Australia (also on behalf of Canada and New Zealand (CANZ)), Cuba, El Salvador, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, Portugal, Singapore, Iran (Islamic Republic of), the United States of America, Venezuela (Bolivarian Republic of), Mexico, Togo and the Philippines.

Several delegations expressed support for the adoption of the articles on diplomatic protection in the form of a convention. A number of delegations stressed that a future convention would contribute to the protection of human rights, including protection of refugees and stateless persons, and also underlined the central place of diplomatic protection within international law. Several delegations emphasized the link between the articles and those on the responsibility of States for internationally wrongful acts, adopted in 2001, while the view was additionally expressed that the articles were independent of each other. The view was stressed that the articles clarified and developed key norms of customary international law relating to diplomatic protection, and some delegations reaffirmed their view that the articles were a good basis for the elaboration of an international convention. Some delegations indicated that discussions over a convention would permit improvements to be made to certain aspects of the articles, given remaining questions over the articles.

A number of delegations made specific comments on the contents of the articles.

Several other delegations expressed their preference not to elaborate a convention on the basis of the draft articles at the present stage and to allow more time to further consider their content. The viewpoint was expressed that the draft articles satisfy the need for the delicate balance between the rights of individuals and the rights of States, and stated that the time was not yet ripe to transform them into an international legally binding instrument, including the concern that several articles fail to reflect customary international law and that their codification would create uncertainty and ambiguity. Some delegations 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. Some delegations also maintained that the draft articles, while serving a useful purpose in guiding State practice, went beyond existing customary international law.

Archived videos of plenary meetings

Video   9th meeting (7 October 2016, 3:00pm – 6:00pm)

Video   10th meeting (10 October 2016, 10:00am – 1:00pm)

Video   31st meeting (4 November 2016, 10:00am – 1:00pm)

Video   32nd meeting (7 November 2016, 10:00am – 11:15am)

Action taken by the Sixth Committee

At the 31st meeting, on 4 November 2016, the representative of South Africa, on behalf of the Bureau, introduced a draft resolution entitled “Diplomatic protection” (A/C.6/71/L.14). At the 32nd meeting, on 7 November 2016, the Committee adopted draft resolution A/C.6/71/L.14, 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-fourth 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, sixty-eighth and seventy-first 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.

Subsequent action taken by the General Assembly

The agenda item will be considered next at the seventy-fourth session (2019).

 

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