Report of the International Law Commission
(Diplomatic Protection)

October 30, 2000

 

Mr. Chairman:

Diplomatic Protection is one of the important items currently under consideration by the International Law Commission. At its 52nd session, the Commission considered the first report submitted by the Special Rapporteur Mr. Dugard (A/CN. 4/506 and Add. 1) and made some progress. The Chinese delegation would like to express its appreciation to the Special Rapporteur for having timely submitted of his first report to the Commission.

Mr. Chairman,

Diplomatic protection involves a series of complex theoretical and practical questions and also has a bearing on inter-state relations. It is of important theoretical and practical significance to formulate legal rules on diplomatic protection. Diplomatic protection has not become obsolete as a result of enhanced efforts by the international community aimed at protecting human rights. We support the views of the Special Rapporteur that so long as the state remains the dominant actor in international relations, diplomatic protection will continue to be the most important remedy for protecting the rights of aliens. We believe that on the basis of nationality, a sovereign state is entitled to protect the legitimate rights and interests of its nationals abroad. As a regime of international law, diplomatic protection is basically a regime dealing with inter-state relations aiming at redressing injuries suffered by nationals of a state as a result of acts committed by another state in violation of international law. The right of diplomatic protection is a right that belongs to the state, not to a national of a state. Whether and how to exercise diplomatic protection in a specific case falls within the discretion of a state. In order to prevent power politics and abuse of diplomatic protection in inter-state relations, it is necessary to limit the right of diplomatic protection, especially to prohibit the use or threat of force in exercising such right.

Mr. Chairman,

Turning to the specific issues on which the Commission has asked for comments from governments, my delegation believes that as a condition sine qua none, diplomatic protection can only be exercised when there is a legal bond of nationality between the state extending diplomatic protection and the person on whose behalf the right of diplomatic protection is exercised. In other words, the state extending protection must be able to prove that the person to whom diplomatic protection is to be extended is a national of that state. This requirement is clear-cut in terms of theory, but in terms of practice, its application is rather complicated by the fact that a person may possess two or more nationalities or be stateless. In the case of a person having two or more nationalities, two questions might arise. First, which one of the states whose nationality the person possesses is entitled to put forward a claim against a third state of which the person is not a national? Second, can one state whose nationality a person possesses put forward a claim against the other state whose nationality such person also possesses? On the first question, it is our view that in the light of the relevant provisions of the "The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws" and state practice, a person having two or more nationalities may be regarded as its national by each of the states whose nationality he/she possesses. Therefore, each of the states whose nationality the person possesses is entitled to put forward a claim on his/her behalf against the injuring state and the latter is not entitled to contest the claim of the former by referring to the nationality of the other state. On the second question, unless otherwise agreed, a state may not put forward a claim on behalf of one of its nationals against a state whose nationality such person also possesses. In the case of a stateless person, it has been a traditional rule that no state is entitled to espouse a claim on his/her behalf. However, it might seem permissible if the government of the state where the stateless person is a lawful resident is willing to afford diplomatic protection.

Mr. Chairman,

We noticed that as the Commission had to concentrate on the consideration of the draft articles on State Responsibility with a view to finishing its second reading by 2001, it did not have sufficient time at its 52nd session to consider the topic of Diplomatic Protection. This will affect the Commission's plan to complete the first reading of this topic before the end of the current quinquennium. We have no objection to giving priority to the consideration of the draft articles on State Responsibility, but we hope that once the Commission finishes its second reading of the draft articles on State Responsibility, it should, as a matter of priority, consider the topic of Diplomatic Protection with the view to completing its first reading within two or three years.

Thank you, Mr. Chairman.