Statement of  Ms. Brechje Schwachofer, First Secretary of the Permanent Mission of the Kingdom of the Netherlands

Mr. Chairman,

To begin with, let me reiterate the appreciation of my delegation to the International Law Commission and to its Special Rapporteur on the issue, Professor John Dugard, for the draft Articles on diplomatic protection, as adopted on first reading.

Mr. Chairman,

The Netherlands generally supports the draft Articles on diplomatic protection. It has taken note of the fact that consular assistance is excluded from the draft Articles and believes that clarity would be enhanced if this were to be explicitly stated in the commentary of the ILC.

The Netherlands would also like to note that Special Rapporteur John Dugard wrote in his fifth report that “the customary international law rules on diplomatic protection that have evolved over several centuries, and the more recent principles governing the protection of human rights, complement each other and, ultimately, serve a common goal –the protection of human rights”. I would like to stress that the Netherlands fully endorses this position.

The Netherlands sees that the term “its national” as is used in draft Article 1 (on definition and scope) is more restrictive than necessary and good, because the scope is widened in later ones, as, for instance, in draft Article 8 on stateless persons and refugees.

One of the specific proposals the Netherlands wishes to make in this respect is to reformulate Article 3, paragraph 1, as follows:

 “The State of nationality is the State entitled to exercise diplomatic protection”. This would place greater emphasis on the individual.

The position of the individual is also at stake in draft Article 5 (on continuous nationality). The Netherlands endorses the idea that lies behind that article, namely to protect the individual against unfairness that might otherwise occur. The Netherlands is therefore of the opinion that the rule should read that diplomatic protection may not be exercised by the present State of nationality, rather than “shall not be exercised”, This because “may not” is more in line with the discretionary authority of the State in respect of exercise of diplomatic protection and with the terminology used in draft Articles 7 and 14.

The Netherlands applauds the inclusion of draft Article 8 on diplomatic protection for stateless persons and refugees. Of particular importance here is paragraph 2 of the commentary in respect of refugees. Diplomatic protection by the State of residence is particularly important in the case of refugees, as they are unable or unwilling to avail themselves of the protection of the State of nationality and, if they do so, run the risk of losing refugee status in the State of residence.

Mr. Chairman,

 Let me now turn to the issue of diplomatic protection for legal persons such as corporations. The Netherlands believes that the draft Articles could gain from a fresh look at comparative corporate law and current global economic developments. As the draft Article 9 (on the State of nationality of a corporation), now stands, it excludes the possibility of corporations having dual nationality. In this respect, I would like to note that various such corporations exist in the Netherlands.

Mr. Chairman,

Much has been said on to what extent local remedies should be effectively exhausted before any diplomatic protection could be exercised. No codification can succeed in providing an absolute rule governing all situations. The Netherlands also therefore suggests adopting the following passage in the commentary on Article 14 “No prior exhaustion of local remedies is required for diplomatic action stopping short of bringing an international claim. See Restatement (Third) of the Foreign Relations Law of the United States (1987), paragraph 703, comment d: “The individual’s failure to exhaust domestic remedies is not an obstacle to informal intercession by a state on behalf of an individual”’ A remark to conclude on exhaustion of local remedies: With respect to local remedies, the Netherlands believes no distinction should be made between legal and factual denial.

Mr Chairman, allow me to continue with the last part of the draft Articles, the miscellaneous provisions.

 The Netherlands would like to suggest that in draft Article 17 the words “under international law” be deleted and that the draft Article be formulated as follows:

“The right of States, natural persons or other entities to resort to actions or procedures other than diplomatic protection to secure redress for injury suffered as a result of an internationally wrongful act, are not affected by the present draft articles”.

Mr Chairman,

A final remark on the last, sixth, report of the Special Rapporteur on the clean hands-doctrine. The Netherlands supports the view of the Special Rapporteur on the issue. The few cases falling within the scope of diplomatic protection do not constitute sufficient practice to warrant codification here. Nor can its inclusion be justified as an exercise in the progressive development of international law.

Thank you, Mr. Chairman.