Statement on 2007 ILC Report and Diplomatic Protection delivered to the sixth committee of the United Nations, on behalf of Canada, New Zealand and Australia
October 19
(As delivered)
Mr Chairman,
I have the honour to speak on behalf of Australia and New Zealand, in addition to Canada.
CANZ would like to thank members of the International Law Commission, and in particular the Special Rapporteur, John Dugard, for their valuable efforts on the topic of diplomatic protection. The subject is an important one and we have welcomed the adoption by the Commission of the draft articles of diplomatic protection and the commentaries thereto.
As the commentaries indicate, there exists a large body of well-established State practice pertaining to much of the subject matter covered by the draft articles. This topic has been largely characterized by customary international law, with developments achieved through State practice and the decisions of international courts and tribunals. CANZ welcomes the clarifications made by the Commission in past years to a number of provisions in preliminary drafts of the articles to more accurately reflect customary international law and to expressly note that some articles represent a progressive development of the law.
CANZ notes the concern expressed by of a number of States about the inclusion of the new article 19 on Arecommended practice@. We also note the terms of Article 7, dealing with "multiple nationality and a claim against a state of nationality", have created some confusion in the area of consular law.
Some have suggested that the obligation of States to notify foreign nationals of their right to contact their consul might be interpreted in light of the concepts of predominant nationality as set out in Article 7. In our view, however, the concepts of predominant nationality set out in Article 7 would not be a basis for altering the primary legal obligation to give consular notice to foreign nationals.
With regard to the proposal of the Commission to elaborate a convention on diplomatic protection, CANZ does not believe it would be advisable to attempt to adopt a legally binding instrument at this time. The draft articles adopted by the ILC were elaborated in a very short time. This matter is of considerable importance to Governments as the draft articles may have far reaching implications. Any attempt to elaborate a convention at this point would risk opening up debate on the draft articles and could quickly undermine the very important consolidating work that the Commission has accomplished on this topic so far. The value of the ILC=s work will be demonstrated over time through the evolution of state practice which in turn will be assisted by the guidance offered by the Commission=s work.
Thank you