Statement of Portugal to the Sixth Committee of the UN General Assembly at its 58th Session

NEW YORK, 30 OCTOBER 2003
STATEMENT BY MR. LUÍS SERRADAS TAVARES, DIRECTOR OF THE DEPARTMENT OF LEGAL AFFAIRS OF THE PORTUGUESE MINISTRY FOR FOREIGN AFFAIRS, TO THE SIXTH COMMITTEE OF THE UN’S GENERAL ASSEMBLY AT ITS 58^th SESSION (Item 152: Report of the International Law Commission on the work of its Fifty-Fifth Session - Chapter V: Diplomatic Protection; Chapter VI: International Liability for injurious consequences arising out of acts not prohibited by International Law [International Liability in case of loss from transboundary harm arising out of hazardous activities])

I have the honour to take the floor today on Chapters V and VI of the Report of the International Law Commission.

Diplomatic Protection (Chapter V of the Report)

Mr. Chairman,

Portugal continues to follow with great interest the work of the Special Rapporteur and of the ILC on the topic of diplomatic protection. We welcome the adoption of draft articles 8 to 10 with their respective commentaries. My delegation would also like to acknowledge the progress made regarding draft articles 17 to 22 as reported in Document A/58/10 on the complex issue of the diplomatic protection of corporations and shareholders and other legal persons.

We appreciate the announcement that the Special Rapporteur aims at submitting his final report in 2004. Portugal will therefore focus mainly on the points contained in Chapter III of the Report.

Mr. Chairman,

Portugal continues to support the extension of the scope of the draft articles to cover diplomatic protection of crewmembers of ships. We believe that the flag State should be entitled to protect the members of a ship’s crew, mainly in the case that the State of nationality cannot exercise this right.

We also think that in principle international organisations should be entitled to exercise diplomatic protection in regard to the nationals employed by it. However, a criterion has to be established for who should have the priority to exercise this right: the international organisation or the State of nationality of the person in question. A possible criterion would be whether the person employed by an international organisation has a permanent link with such organisation in the sense of being an international civil servant. In this case, we would tend to argue that the primary right to protect him or her belongs to the organisation, and only in subsidiary terms to the State of nationality. Furthermore, it has to be examined whether this reasoning should apply to all international organisations or only to the ones that possess an objective international legal personality, separate from member States, and the constitutive instrument attributes to the organisation its own powers.

With regard to the issues that ought to still be considered, my delegation would like to reiterate our comment already made last year that it would be appropriate to consider the question of diplomatic protection in the context where a State or an international organisation administers a foreign territory or State. In particular, the following situations come to our mind:

-          Locals can suffer injury abroad. Who can exercise diplomatic protection in this case?

-          Foreigners can suffer injury in such territories or States. Against whom can the State of nationality exercise its right of diplomatic protection?

While we agree that the topic of Diplomatic Protection is mainly one of codification, we also believe that some areas of progressive development warrant some discussion.

To conclude, my delegation would also like to reiterate the concern voiced last year with regard to the diplomatic protection of stateless persons and refugees (article 7) as the requirement of both lawful and habitual residence sets a threshold that is too high and could lead to a situation of lack of effective protection for the individuals involved. We invite the ILC to give due consideration to this issue when embarking upon the second reading of the draft articles, which are undoubtedly an excellent starting basis for the further work of the Commission.

International Liability in case of loss from transboundary harm arising out of hazardous activities (Chapter VI of the Report)

Mr. Chairman,

Let me turn now to the issue of International Liability. Portugal would like to commend the Special Rapporteur for his very useful report on the legal regime for the allocation of loss. This report raises several issues which deserve our attention concerning the role of both the operator and of the State with regard to the loss, the possibility of limiting such liability and of resorting to insurance and funds to supplement compensation when needed, the final form of the work on this topic, etc.

If you allow me, I shall start with this last issue. My delegation believes that the final form of the work on this topic should be the one of a set of draft articles to complete those ones already adopted on prevention. Prevention was just the first part to the work and the Commission has now moved on to the second part of the liability topic in order to complete it. A parallel approach as to the form of the work is desirable.

We therefore encourage the Commission to proceed with its work on the regime of allocation of loss and into a drafting exercise of concrete articles. Issues that could be addressed in such provisions are, for instance, in the view of my delegation the following:

-          the definition of loss, hazardous activity and operator;

-          the general principle that States and persons under their jurisdiction should not bear the losses resulting from an incident caused by an hazardous activity which does not take place in their territory and with which they have no relationship;

-          operators involved in hazardous activities are liable from losses caused by their activities, must plan for the possibility of an incident and should be ready to put in action a certain number of measures if an incident does happen;

-          the principle of subsidiary or residual liability of the State;

-          the possibility of limiting the liability of the operator;

-          the necessity of having insurance and creating funds for supplementary compensation;

-          the need to put in place adequate remedies for those who suffer the damage;

-          all types of damage should be included, including damage to the environment per se.

These are just some of the issues that could incorporated in the draft articles. Other delegations have already contributed to the debate with extremely interesting comments and we invite the Commission to take them into account.

Thank you Mr. Chairman.