Commission’s Report Entitled Diplomatic Protection.

Mr Chairman,

I have the honour of making this statement on behalf of the Nordic countries, Denmark, Finland, Iceland, Sweden and Norway.

 In line with the general structure of the debate, I will address chapter IV of the Commission’s report entitled Diplomatic Protection.

Let me start by congratulating the Special Rapporteur, Professor John Dugard, for his reports on this topic. It gives us great pleasure to note that his outstanding work has led to the adoption on second reading of a complete set of draft articles and commentaries thereto.

The Nordic countries are very satisfied that the Commission has in such a swift manner concluded its work on this topic. In our view, the end result of the Commission’s work on this topic strikes a good balance between the codification and the progressive development of international law in the field of diplomatic protection.

Mr Chairman,

We will through this statement communicate to the Commission our main observations on the adopted draft articles.

1. The complete set of draft articles meets the general satisfaction of the Nordic countries.

2.  The Nordic countries support the chosen approach reflected in draft Article 2, based on the main premise that States have a right, not a duty, to exercise diplomatic protection.  Moreover, it is important to underline that principles and rules of diplomatic protection are without prejudice to the law of consular protection and other applicable rules of international law, including those pertaining to the law of the sea.

3. In draft Article 5, a requirement for the exercise of diplomatic protection is continuous nationality. An issue has been whether this requirement should apply until the resolution of the dispute or the date of an award or a judgement, and not only until the time of the official presentation of the claim. In practice, however, it can be very difficult to fix the exact point in time of resolution of the dispute. Thus, the Nordic countries support the chosen approach of the Commission, whereby a State may exercise diplomatic protection in respect of a person who was its national at the time of the injury and is a national at the date of the official presentation of the claim.

Consistent with this view, we support the approach taken by the Commission when applying the same solution in draft Article 10 also with regard to corporations. The exception in draft Article 10, paragraph 3, whereby a State may continue to exercise diplomatic protection in respect of a corporation which was its national at the time of the injury and which, as the result of the injury has ceased to exist, appears to be sound.

4.  The Nordic countries strongly support the approach of the Commission in Article 7. In the case of multiple nationality, the State of nationality that is “predominant” both at the time of the injury and at the date of the official presentation of the claim should be entitled to exercise diplomatic protection against another State of nationality of the person concerned. In the view of the Nordic countries, Article 7 constitutes a codification of existing customary international law. This rule has no bearing on the possibilities to provide consular assistance, which are not governed by the law pertaining to diplomatic protection.

5. Moreover, the Nordic countries are particularly pleased that the adopted draft articles include a provision on diplomatic protection on behalf of stateless persons and refugees in certain cases. This article deviates from earlier opinions to the effect that a State should only exercise diplomatic protection on behalf of its own nationals. It is of high importance to be able to offer diplomatic protection to these particularly vulnerable categories of persons.

According to Article 8, paragraph 2, a State may exercise diplomatic protection in respect of persons recognized by that State as a refugee in accordance with internationally accepted standards.

The Nordic countries support that the term “refugee” is not limited to the definitions in the Refugee Convention and its Protocol, as also reflected in the commentaries. We would, however, have preferred a larger extent of flexibility.

Thus, diplomatic protection could in accordance with Article 8 be exercised in respect of persons fulfilling the requirements of territorial connection to the State exercising diplomatic protection, and which in this State’s judgement clearly is in need of protection without necessarily being recognized as a refugee according to internationally accepted standards.

Thus, we would have preferred the previous formulation in the commentaries which left it up to a State to “extend diplomatic protection to any person that it considered and treated as a refugee” (paragraph 8 of the commentaries to article 8 adopted on first reading).

The temporal requirement for the exercise of diplomatic protection proposed in Article 8 is that the stateless person or refugee concerned must have lawful and habitual residence in the State exercising diplomatic protection at the time of the injury and at the date of the official presentation of the claim. In the view of the Nordic countries, such a requirement appears to set an excessively high threshold. In many cases where there is a need of effective diplomatic protection, the injury will in fact have ocurred prior to the entry of the person concerned into the territory of the State exercising diplomatic protection.

Thus, the Nordic countries would have preferred a criteria of “lawful stay” rather than the criteria of “lawful and habitual residence”. “Lawful stay” is the exact wording used in Article 28 of the Convention relating to the Status of Refugees with regard to the issuing of travel documents to refugees, and would have been an appropriate criteria for the exercise of diplomatic protection.

6.  With regard to the exercise of diplomatic protection on behalf of shareholders, the Nordic countries are content that the Commission has ensured overall consistency with the case law of the International Court of Justice, based on the well-known Barcelona Traction cases.

The 1970 judgement of the International Court of Justice strikes a fair balance between the interests of the company and the interests of the shareholders, and enhances legal clarity.

The Nordic countries agree against overturning the basic rule that diplomatic protection on behalf of a company primarily be made by the State of nationality of the company.

Moreover, inability to claim protection from their own government is perhaps one of the commercial risks that shareholders undertake when buying shares in foreign companies.

The Nordic countries support, at the same time, the exceptions suggested in Article 11 a) and b). According to Article 11 b), the State of nationality of the shareholders may exercise diplomatic protection on behalf of such shareholders when the corporation had, at the time of the injury, the nationality of the State alleged to be responsible for the injury, and incorporation in the latter State was required as a precondition for doing business there. A State should not be allowed to require that foreign interests incorporate under local law as a condition for doing business in that State, and then plead such incorporation as the justification for rejecting the exercise of diplomatic protection from the State of nationality of the foreign interests.

The exception in Article 11 b) applies both to cases where the requirement of incorporation under local law as a precondition for doing business is a formal requirement contained in the local legislation, and to cases where the requirement of incorporation is not a formal one, but follows from pressure of informal or political nature on the foreign interests. The Nordic countries support the wording “was required by it as a precondition for doing business there”, which covers both situations. The extension of the exercise of diplomatic protection to situations of informal pressure seems to suggest a sound progressive development of international law.

7.  The Nordic countries fully support the approach in Article 18, whereby the right to exercise of diplomatic protection by the flag State does not exclude the same right to be exercised  by the State of nationality of the members of the crew of a ship and vice versa. This is a very important principle. This solution means that important protective measures established by the law of the sea are consequently not undermined.

8. The new Article 19, whereby a State shall give due consideration to the possibility of exercising diplomatic protection as well as take into account the views of the injured persons in this regard, seems reasonable and is consistent with draft Article 2. In order to obtain compensation to victims of breaches of the international obligations of States other than their State of nationality, it seems fair to establish a recommended practice as reflected in Article 19, paragraph 3, whereby a State should transfer to the injured person any compensation obtained from the responsible State, with a reasonable deduction for ocurred expenses of the State of nationality in connection with the exercise of diplomatic protection.
9. We believe that the General Assembly should follow the recommendation of the Commission, and that the provisions on diplomatic protection should, in a relatively short time, be adopted in the form of a Convention. By doing so, we would enhance the legal clarity and predictability in this important field of law.

I thank you, Mr Chairman