The statement was held on November 1st under Agenda Item 144 "Report of the International Law Commission", and went as follows:
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 already led to the adoption on first reading of a complete set of articles and commentaries thereto.
The Commission has asked for our comments on all draft articles and the commentaries. We will in due course respond to this request, within the deadline of 1 January 2006. Let me however already at this stage express the Nordic countries’ general satisfaction at the proposed thrust and on the envisaged end result. At the time this topic was placed on the Commission’s agenda, the Nordic countries were among those States that called for clear and unambiguous provisions which responded to the need of practitioners. We believe that the Commission has heeded that call.
Let me at this stage offer a few brief observations on behalf of the Nordic countries to the draft articles. The report of the chairman of the drafting committee reveals that there were lengthy debates in relation to articles 5 and 10. An issue was whether or not the rule of continuous nationality should apply not only until the time of the official presentation of the claim but until the resolution of the dispute or the date of an award or a judgement. In practice, however, it can be very difficult to fix the exact point in time of resolution of the dispute. We agree that there are arguments both in favour of the approach followed by the Commission and of an approach which requires relevant ties between the person or corporation and a State exercising diplomatic protection even after the official presentation of the claim. We therefore look forward to other States’ comments on this issue and an even more elaborate discussion by the Commission.
The Nordic countries are particularly pleased that the Commission has drafted a provision on diplomatic protection on behalf of stateless persons and refugees (article 8), as such individuals may very well be exposed to vulnerable situations. It is true that this article would seem to deviate from the traditional rule that a State may only exercise diplomatic protection on behalf of its nationals. We note from the commentaries that the term "refugee" is not necessarily limited to those who fall within the definitions in the Refugee Convention and its Protocol. The commentaries introduce an element of flexibility when they leave it up to a State to "extend diplomatic protection to any person that it considered and treated as a refugee" (paragraph 8 of commentaries to article 8). On our part, we take it that a State may exercise diplomatic protection also on behalf of a foreign national, lawfully and habitually residing in that State, and which in this State’s judgement clearly is in need of protection without necessarily formally qualifying for status as a refugee.
We are content that the Commission in codifying the rules on diplomatic protection with regard to legal persons based its work on the rules which derive from the 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. Furthermore, we are pleased to note that the draft articles on diplomatic protection will not exclude protection exercised by a flag State and vice versa. Important protective measures established by the law of the sea are consequently not undermined.
We believe that there is merit in proceeding rather swiftly to the adoption of the articles on second reading. In the view of the Nordic countries, we are yet again faced with an important contribution of the International Law Commission to public international law. As the final result, we would hope that provisions on diplomatic protection could, 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.