Sixth Committee
25 October 2006
Report of the International Law Commission on the Work of its 58th Session
Diplomatic Protection
Liability for Injurious Consequences arising out of Acts not prohibited by International Law
Statement by Mia Goldsmith
Adviser
of Australia to the United Nations
(Check against delivery)
Mr Chairman, distinguished members of the International Law Commission,
Australia would like to commend the considerable achievements of the Commission in the past year. The Commission has had a particularly productive session, which is testament to the dedication, commitment and hard work of its members.
Mr Chairman,
Australia would like to comment briefly on the Commission’s recommendations on diplomatic protection.
We acknowledge the outstanding contribution made by the Special Rapporteurs, Mr Mohamed Bennouna and, more recently, Mr John Dugard, to the preparation of the draft articles on diplomatic protection. The completion of the draft articles represents an important achievement in this field, and, as the Commission notes in its Commentary, the draft articles will complement the work of the Commission on State Responsibility.
The issue of diplomatic protection is an important one to Australia. This should not be surprising as, at any one time, approximately one-million Australians, out of a total population of 20 million, are overseas. The Australian Government is committed to providing appropriate consular services to those citizens. As the report notes, consular assistance is largely preventative. Where harm does in fact occur due to an internationally wrongful act, then diplomatic protection is an important potential remedy.
Australia welcomes the fact that the Commission has brought a contemporary perspective to this topic, so balancing the two components of its mandate – the codification and progressive development of international law. The commentary on draft Article 4 demonstrates this, noting that the ‘genuine link’ test established by the International Court of Justice in the Nottebohm case needs to be understood in the context of the peculiar facts of that case, and is not more widely applicable. As the Commentary notes, ‘dual or multiple nationalities is a fact of international life’, and the draft articles appropriately reflect this reality.
Australia endorses the Commission’s view, expressed in draft Article 2, that the exercise of diplomatic protection is a right, rather than a duty, of a State. We also re-iterate our view that the issue of diplomatic protection of a ship’s crew by the flag State is covered adequately by existing international law, and need not be addressed here. Australia also welcomes draft Article 17, which appropriately provides, in effect, that special rules of international law, including those contained in bilateral or multilateral treaties on the protection of investments, prevail over the general rules elaborated in the draft articles.
We note the Commission’s recommendation to the General Assembly to elaborate a new convention on the basis of the draft articles on diplomatic protection. However, we would prefer that the Commission’s draft articles not be used in this way. Exposing these articles to negotiations between States could risk diminishing their substance. And there is a risk that any treaty eventually elaborated would be less than universally ratified, so leading to the problem of ‘reverse codification’.
The draft articles currently represent a sensible mix of codification and progressive development, and would lend themselves to forming the basis of a declaration of the General Assembly.
Mr Chairman,
Australia similarly congratulates the Commission on completion of its work on International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law, also referred to as International Liability in Case of Loss from Transboundary Harm arising out of Hazardous Activities. We commend the efforts of Mr Robert Quentin-Baxter, Mr Julio Barboza and, most recently, Mr Pemmaraju Sreenivasa Rao, who served as Special Rapporteurs.
The Commission’s work on this topic has canvassed two related aspects, being prevention and liability. The Commission’s work on prevention was completed in 2001 with the adoption by the Commission of draft articles on this issue. The second tranche of the Commission’s work was completed this year with the adoption by the Commission of eight draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities.
As with the draft articles on diplomatic protection, Australia notes that the Commission’s draft principles on liability represent a mix of codification and progressive development of international environmental law. In drafting a set of principles to guide States, the Commission has sensibly avoided the difficulties of trying to harmonise national laws and legal systems. Australia is of the view that States should take a period to reflect on the draft principles before taking a collective stance on them.
Mr Chairman,
Australia looks forward to commenting on other aspects of the report as the Committee considers other topics on the Commission’s agenda in the coming days.
Thank you, Mr Chairman.