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Diplomatic Protection
Mr Chairman
New Zealand thanks the Special Rapporteur, Mr. John Dugard, for his fifth report on the topic of “Diplomatic Protection” and his continuing careful and thorough work.
We noted last year that this codification exercise is essentially a residual one given the existence of such a large range of relevant treaties especially in the field of human rights and bilateral investment. But the work is no less valuable because of this. Diplomatic protection remains a useful tool not be overlooked or abandoned especially since there are few effective procedural remedies in international law available to individuals or corporations injured by a foreign State. The possibility of the State of nationality taking up the case with a foreign State may be the only hope for redress for those injured.
The draft articles adopted by the Commission at first reading are generally codification rather than progressive development. It is clear that in some areas the Special Rapporteur’s proposals included a degree of progressive development beyond that which the Commission after full deliberation was prepared to accept. In some cases New Zealand preferred those proposals but we understand why the Commission as a whole has been slightly more cautious. In their present form, the draft articles represent a sound product incorporating a reasonable mix of codification and sensible progressive development.
In particular, we acknowledge the wisdom of a number of important legal points incorporated in the draft articles. These include not requiring proof of the so-called “genuine link” between the injured individual and the claimant’s State of nationality; incorporating in draft article 5 a significant exception to the continuous nationality rule; casting the rules relating to the diplomatic protection of dual nationals in a way whicHEnhances their prospects of obtaining appropriate protection; recognising a limited exception to the Barcelona Traction rule on the nationality of corporations to enable protection by the state of nationality of shareholders in certain circumstances; including a useful widening of the exception to the exhaustion of local remedies rule; providing for the extension of diplomatic protection to refugees and stateless persons; and recognising formally the right of both the State of nationality and the flag State to seek redress for injury suffered by ships’ crews.
We encourage the Commission to conclude its work on this topic next year by adopting draft articles at second reading, taking into account the comments of governments on the articles as adopted at first reading.
Fragmentation of International Law
Mr. Chairman
We continue to support the Commission’s very useful work on the topic of “Fragmentation of International Law” and thank the Chairman of the Study Group, Mr. Martti Koskenniemi, for his intellectual leadership. In our view the Commission’s study of this topic will undoubtedly contribute to a wider understanding of the underlying linkages and overall coherence of the international legal system. It may well prove to be a good example of the kind of useful work of a non traditional type that might be included in future work programmes of the Commission. Like others, we agree that the results of the work on this topic should be of practical value to legal advisers. We are pleased that the Commission has kept this goal firmly in mind.
The report of the Study Group this year provides a useful overview of the work undertaken and the progress to date, including the consideration of some of the studies that have been carried out on various aspects of the law of treaties.
In procedural terms, we strongly support the Commission’s plan for a two-part outcome. We agree that a key part of the product should be a practical set of concise statements intended to help legal advisers deal with and think through fragmentation issues that they may encounter. Equally, we believe this condensed set of statements needs to be complemented by a significant analytical study, which would synthesise the various individual studies undertaken by members of the Study Group. This longer analytical study will act much like the commentaries to a set of draft articles. It will be the substantive source that explains and backs up the concise statements.
Perhaps even more so than other topics being considered by the Commission the further progress of this topic as a whole, across all its component parts, is strongly linked to the Commission’s membership for the current quinquennium. We therefore strongly encourage the Commission to work to complete discussion of the remaining studies and draft conclusions drawn from those areas early in its session next year, thus enabling it to consider and adopt the full two-part outcome for this important topic by the end of the session and the current quinquennium.
International liability for transboundary harm
Mr. Chairman
We would like to conclude by making a brief comment on the topic of “International liability in case of loss from transboundary harm arising out of hazardous activities.” The topic was not on the Commission’s agenda this year as the draft principles adopted by the Commission last year were still open for comments by governments.
This is a topic in which New Zealand has had a longstanding interest. We continue to believe that the risk of transboundary harm from hazardous activities is an issue that can only grow in importance with the advent of new technologies. Prevention is certainly a key to the issue. But, as we have said on many occasions, we cannot ignore the question of who has to carry the loss in circumstances where despite the application of the best known prevention measures loss occurs.
We believe that the Commission achieved significant and valuable progress with the draft principles it adopted last year and we again commend the work of the Special Rapporteur Mr P.S.Rao. The principles strike a fair balance between the rights and obligations of the operator as the beneficiary of the activity and the victim of the harm. They are general and residual in nature and would undoubtedly help to fill a significant gap in the international legal order while providing guidance for appropriate sector-specific regimes at the global or regional level.
We strongly urge the Commission to conclude its work on this topic next year by adopting the draft principles at second reading taking into account the comments of governments on the principles at first reading.
Thank you,
Mr. Chairman
