October 16, 2018

Statement by the Representative of Cyprus to the 6th Committee Ambassador A.J. Jacovides – Report of the International Law Commission (Diplomatic Protection, Unilateral Acts of States)

Mr. Chairman,

The purpose of my present statement is to briefly provide the position of Cyprus on the two sub-topics of the Report of the International Law Commission, which have been the subject of examination in the Sixth Committee for the past two days, viz. Diplomatic Protection and Unilateral Acts of States.

These sub-topics, though interesting and important, are completely dissimilar from each other in terms of their place in public international law. Diplomatic Protection is an area of classical or traditional international law, while Unilateral Acts of States lies on unchartered and untested ground.

Before I proceed any further, I wish to once again express our deep appreciation to the Chairman of the ILC Ambassador Chusei Yamada, for his clear and very helpful introduction of the respective chapters of the ILC Report (A/55/10) last Friday and to the two Special Rapporteurs, Professor John Dugard and Ambassador Victor Rodriguez Cedeno, for their conscientious and most commendable efforts which have resulted in substantial progress on their respective topics, even though (as already noted) the main focus of the ILC’s attention in the past session has been the topic of State Responsibility.

If I may be allowed an observation at the personal level, in 1960, as a graduate student and a member of a small team of researchers working for Professors Richard Baxter and Louis Sohn at the Harvard Law School on the draft Convention of “State Responsibility for Injury to Aliens”, I spent several months on surveying in depth the then existing law on “The Right of a State to Waive, Compromise or Settle Claims of its Nationals”. Already at that time this was a developed area of international law, both in terms of customary law and in terms of treaty law. Revisiting the subject forty years later, one has the feeling that there has not been very much change.

Turning to Chapter V of the Report, on “Diplomatic Protection”, we have carefully noted the contents of the first report of Professor Dugard, consisting of nine draft articles and agree with his basic thesis that, despite the emergence of various dispute settlement mechanisms to which individuals have been given access, diplomatic protection remains an important tool for the protection of individuals in the international arena. We also sympathize with his wish to view diplomatic protection as a means of advancing human rights.

Regarding Article 1, which describes the topic, while the view that diplomatic protection is the right of the individual may be in keeping with the progressive thinking of our time and we are sympathetic to it; the prevalent view is that diplomatic protection is the discretionary right of the State. A State has the right to espouse and present a claim to another State for the wrongful act committed by the latter, but there is no obligation in international law (independently of any such obligation which may in certain cases exist in constitutional law) on the State to present a claim on behalf of the injured national and, if I may add my conclusion of four decades earlier, a State can indeed waive, compromise or settle claims of its nationals once it has espoused and put them forward at the international level.

Regarding draft Article 2, on the issue on whether forcible intervention is permitted in international law to protect nationals, we certainly share the view that the matter comes under the broader topic of State Responsibility and that the use of force to protect nationals abroad should not be considered in isolation from the whole topic of the use of force and the relevant provisions of the United Nations Charter and jus cogens, or peremptory norms of international law.

With regard to draft Article 3, on the issue of whose right was asserted when the State of nationality involved the responsibility of another State for injury caused to its nationals, as already indicated, it should be recognized that diplomatic protection is a right attached to the State which the State can exercise at its discretion. We also agree with the position that in practice, a State will probably refrain from asserting its rights when the person affected has an individual remedy, or it might join the individual in asserting his / her right under the relevant treaty. Cyprus can point to several instances where this occurred, for example before the appropriate organs of the Council of Europe. Indeed, the approach in Article 3 properly incorporates the traditional view derived from the Mavrommatis Palestine Concessions case (PCIJ) to the effect that diplomatic protection is the right of the State, which does not act as the agent of its injured nationals.

With regard to draft Article 4, while we sympathize with the intentions of the Special Rapporteur, as earlier indicated, the proposition that constitutional law clauses providing a right to diplomatic protection should be extended to international law, finds no support in State practice.

Similarly, on draft Article 5, on the requirement of nationality for diplomatic protection the traditional view, supported in the Nottebohm Decision of the International Court of Justice, represents the current position. Indeed, the issue is linked with the familiar requirements of denial of justice and the exhaustion of local remedies.

We have an open mind on the issues raised in draft Articles 6, 7 and 8, on multiple nationalities, dominant nationality, stateless persons, refugees, etc. Here, in our view, there is room for the ILC to make a more substantive counteraction in developing the relevant rules in accordance with progressive, contemporary notions beyond the traditional customary law rules.

Turning now to the topic of “Unilateral Acts of States”, we welcome the substantial progress made in this unchartered and unsettled topic, as a result of the valiant efforts of Ambassador Victor Rodriguez Cedeno, the Special Rapporteur, in his third report, despite the fact that he received not as extensive a guidance as he would have been entitled to, in response to the questionnaire sent to States.

We note and generally agree with the reformulations to draft Articles 1 to 7 submitted in his earlier report. While there is a great diversity of unilateral acts present in the practice of States and this renders difficult a general exercise of codification of this topic, nonetheless the Commission and the Special Rapporteur are engaged in more than providing a simple survey of State practice in this area as a result of decisions already taken some years ago.

We agree with the reformulation of draft Article 1, defining a unilateral act of a State as “an unequivocal expression of will which is formulated by a State with the intention of producing legal effects…” We have an open mind on whether estoppel can be taken up within the context of unilateral acts of States and we generally agree with the points concerning further work on this topic reported by the Working Group, and more particularly that the draft articles could be structured around a distinction between general rules which may be applicable to all unilateral acts and specific rules applicable to individual categories of unilateral acts; and that particular attention should be paid to practice in future efforts under this topic.

Since I have the floor, and in order not to make a separate statement I would like with your permission, Mr. Chairman, to make two further brief comments:

On Chapter VII of the report, “Reservations to Treaties”, our position has been that while the relevant articles of the 1969 Vienna Convention on the Law of Treaties rightly provide the basic rules on this subject, the intervening developments on this topical and sensitive area of reservations and interpretative declarations make it useful to develop a Guide to Practice relating to this regime. Professor Alain Pellet, the Special Rapporteur, is making a valuable contribution and we look forward to the early completion of this project.

Similarly, on Chapter VIII, “International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law”, we welcome the focus on the matter of prevention, which is of special value to international environmental law, and commend the Special Rapporteur, P.S. Rao, for his efforts toward the full fruition of this topic in the not too distant future.

Thank you, Mr. Chairman.