At its forty-seventh session, in 1995, the International Law Commission, on the basis of the recommendation of a Working Group on the long-term programme of work, decided to include in the Commission’s agenda, subject to the approval of the General Assembly, the topic “Diplomatic Protection”. The Commission noted that work on this topic would complement the Commission’s work on State responsibility and should be of interest to all Member States. The Commission could consider, inter alia, the content and scope of the rule of exhaustion of local remedies; the rule of nationality of claims as applied to both natural and legal persons, including its relation to so-called “functional” protection; and problems of stateless persons and dual nationals. The Commission could also address the effect of dispute settlement clauses on domestic remedies and on the exercise of diplomatic protection. [1]

Extracts from The Work of the International Law Commission, 6th ed., vol. 1

The General Assembly, in resolution 50/45 of 11 December 1995 (E, F, S, R, C, A), took note of the Commission’s suggestion to include the topic in its agenda and invited Governments to submit comments on this suggestion for consideration by the Sixth Committee of the General Assembly at its fifty-first session.

At its forty-eighth session, in 1996, the Commission adopted a general outline of the main legal issues raised under the topic, including explanatory notes, prepared by a Working Group on the long-term programme of work to assist Governments in deciding whether to approve further work. This provisional outline included the following sections:

The Commission noted that the topic would form a companion study to the Commission’s work on State responsibility. The Commission had previously considered issues relating to diplomatic protection in connection with the question of responsibility for injuries to the persons or property of aliens, which was the initial focus of its work on the topic of State responsibility. The Commission also noted that the present study could follow the traditional pattern of articles and commentaries, but leave for future decision the question of its final form, which could be a guide for Governments in handling international claims rather than a convention. [2]

The General Assembly, in resolution 51/160 of 16 December 1996 (E, F, S, R, C, A), invited the Commission to examine further the topic and to indicate its scope and content in the light of the comments and observations made during the debate in the Sixth Committee on the report of the Commission and any written comments submitted by Governments.

At its forty-ninth session, in 1997, the Commission established a Working Group to examine further the topic and to indicate its scope and content in accordance with General Assembly resolution 51/160. The Working Group had before it the general outline adopted by the Commission at its previous session, the topical summary of the discussion held by the Sixth Committee at the fifty-first session of the General Assembly [3]  and the written comments submitted by Governments. [4]  The Working Group attempted to (a) clarify the scope of the topic to the extent possible; and (b) identify the issues that should be studied in the context of the topic. The Commission adopted the report submitted by the Working Group. [5]

As regards the scope of the topic, the Working Group reviewed the general outline and decided to retain only material dealing with diplomatic protection stricto sensu. Thus, the topic would address only indirect harm (harm caused to natural or legal persons whose case is taken up by a State) and not direct harm (harm caused directly to a State or its property). Section 3 of the general outline would not be included. In addition, the Working Group drew attention to the distinction between diplomatic protection properly so called, that is to say a formal claim made by a State in respect of an injury to one of its nationals which has not been redressed through local remedies, and certain diplomatic and consular activities for the assistance and protection of nationals as envisaged by articles 3 and 5, respectively, of the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. Finally, the Working Group recommended limiting the topic to the codification of secondary rules by addressing the requirement of an internationally wrongful act of the State as a prerequisite but not the specific content of the international legal obligation which has been violated.

As to the relevant issues, the Working Group prepared a revised outline of the content of the topic in which it identified a number of issues under four major areas for study by the Commission. The four major areas of study are covered by the following chapters of the outline:

At the forty-ninth session, the Commission also appointed Mr. Mohamed Bennouna as Special Rapporteur for the topic and recommended that the Special Rapporteur submit, at the Commission’s next session, a preliminary report on the basis of the revised outline. [6]

The General Assembly, in resolution 52/156 of 15 December 1997 (E, F, S, R, C, A), endorsed the Commission’s decision to include in its agenda the topic “Diplomatic protection”.

At its fiftieth session, in 1998, the Commission had before it the preliminary report of the Special Rapporteur, which dealt with the legal nature of diplomatic protection and the nature of the rules governing the topic. [7]  After considering the report, the Commission established a Working Group, chaired by the Special Rapporteur, to consider the possible conclusions which might be drawn on the basis of the discussion as to the approach to the topic and also to provide directions in respect of the issues to be covered in the second report of the Special Rapporteur. The Commission endorsed the report submitted by the Working Group. [8]

As regards the approach to the topic, the Working Group agreed, inter alia, to the following:

As to the second report of the Special Rapporteur, the Working Group suggested that it should concentrate on the issues raised in chapter I, “Basis for diplomatic protection”, of the revised outline adopted by the Commission at its forty-ninth session. [10]

The General Assembly, in resolution 53/102 of 8 December 1998 (E, F, S, R, C, A), invited Governments to submit the most relevant national legislation, decisions of domestic courts and State practice relevant to diplomatic protection in order to assist the Commission in its future work on the topic.

At its fifty-first session, in 1999, the Commission, following Mr. Bennouna’s resignation from the Commission, appointed Christopher John R. Dugard as Special Rapporteur for the topic. [11]

At its fifty-second session, in 2000, the Commission had before it the first report of the newly appointed Special Rapporteur, [12]  which consisted of three parts: (1) an introduction to diplomatic protection examining the history and scope of the topic and suggesting how the right of diplomatic protection could advance the protection of human rights; (2) proposed draft articles and commentaries; and (3) an outline of future work. The Special Rapporteur proposed the following draft articles: 1 (the scope of the draft articles), 2 (the threat or use of force), 3 (the right to exercise diplomatic protection on behalf of a national), 4 (the duty to exercise diplomatic protection in cases of injury arising from a grave breach of a jus cogens norm), 5 (the State of nationality), 6 (the exercise of diplomatic protection on behalf of a dual or multiple national by one State of nationality against another State of nationality), 7 (the exercise of diplomatic protection on behalf of a dual or multiple national against third States), 8 (the exercise of diplomatic protection on behalf of stateless persons and refugees) and 9 (continuous nationality and transferability of claims). After considering the report, the Commission established an open-ended informal consultation, chaired by the Special Rapporteur, on draft articles 1, 3 and 6. After considering the report of the informal consultation, [13]  the Commission referred draft articles 1, 3 and 5 to 8 to the Drafting Committee, together with the report. Due to lack of time, the Commission deferred consideration of the remainder of the first report (draft article 9) to its next session.

At its fifty-third session, in 2001, the Commission had before it the remainder of the Special Rapporteur’s first report as well as the second report [14]  concerning the exhaustion of local remedies and future work on the topic. In the second report, the Special Rapporteur proposed the following draft articles: 10 (the exhaustion of local remedies rule), 11 (the preponderance rule concerning the distinction between “direct” and “indirect” claims for purposes of the exhaustion of local remedies rule), 12 (the exhaustion of local remedies rule as a procedural precondition with respect to an internationally wrongful act which is a violation of domestic law and international law) and 13 (the exhaustion of local remedies rule with respect to a denial of justice regarding a violation of domestic law). After considering the reports, the Commission referred draft articles 9, 10 and 11 to the Drafting Committee. The Commission also established an open-ended informal consultation, chaired by the Special Rapporteur, [15]  to consider draft article 9 with a view to providing the Drafting Committee with guidance on its scope and formulation. Due to lack of time, the Commission deferred consideration of draft articles 12 and 13 to its next session.

At its fifty-fourth session, in 2002, the Commission had before it the remainder of the Special Rapporteur’s second report relating to the exhaustion of local remedies rule as well as the third report [16]  dealing with the exceptions to that rule, the question of the burden of proof and the so-called Calvo clause. In his third report, the Special Rapporteur proposed the following draft articles: 14 (exceptions to the exhaustion of local remedies rule), 15 (burden of proof), and 16 (the Calvo clause). After considering the report, the Commission decided to refer draft article 14, paragraphs (a), (b), (c) and (d) (both to be considered in connection with paragraph (a)) and (e) concerning futility, waiver and estoppel, voluntary link, territorial connection and undue delay, respectively, to the Drafting Committee. The Commission also held a general discussion, inter alia, on the scope of the study. In addition, the Commission established an open-ended informal consultation, chaired by the Special Rapporteur, on the question of the diplomatic protection of crews as well as that of corporations and shareholders. [17]  

At the same session, the Commission provisionally adopted the following seven draft articles as well as the commentaries thereto: 1 (definition and scope), 2 [3] [18]  (right to exercise diplomatic protection), 3 [5] (State of nationality), 4 [9] (continuous nationality), 5 [7] (multiple nationality and claim against a third State), 6 (multiple nationality and claim against a State of nationality) and 7 [8] (stateless persons and refugees). [19]

At its fifty-fifth session, in 2003, the Commission had before it the Special Rapporteur’s fourth report [20]  relating to the diplomatic protection of corporations, shareholders and other legal persons. The Special Rapporteur proposed the following draft articles on the diplomatic protection of corporations and shareholders: 17 (diplomatic protection of corporations), 18 (diplomatic protection of shareholders of corporations), 19 (classification of claims in the context of the protection of shareholders of corporations), 20 (continuous nationality of corporations), 21 (lex specialis) and 22 (legal persons). The Commission established a Working Group, chaired by the Special Rapporteur, on article 17, paragraph 2, and considered its report as well. After considering these reports, the Commission decided to refer draft article 17, as proposed by the Working Group, as well as draft articles 18 to 22 to the Drafting Committee. [21]

At the same session, the Commission provisionally adopted the following three draft articles as well as commentaries thereto: 8 [10] (exhaustion of local remedies), 9 [11] (category of claims) and 10 [14] (exceptions to the local remedies rule). [22]

At its fifty-sixth session, in 2004, the Commission had before it the fifth report of the Special Rapporteur [23] dealing with the possible expansion of the topic beyond its traditional scope to include: protection by an administering State or international organization; delegation of the right of diplomatic protection and the transfer of claims; protection by an international organization and diplomatic protection; human rights, diplomatic protection and a general saving clause; and diplomatic protection of ships’ crews by the flag State. Five additional draft articles (articles 23 to 27) were proposed. The Commission decided to only refer draft article 26, together with the alternative formulation for draft article 21 as proposed by the Special Rapporteur, to the Drafting Committee. The Commission further decided that the Drafting Committee consider elaborating a provision on the connection between the protection of ships’ crews and diplomatic protection. The Commission considered the report of the Drafting Committee and adopted on first reading the following set of 19 draft articles on diplomatic protection, with commentaries: 1 (Definition and scope), 2 (Right to exercise diplomatic protection), 3 (Protection by the State of nationality), 4 (State of nationality of a natural person), 5 (Continuous nationality), 6 (Multiple nationality and claim against a third State), 7 (Multiple nationality and claim against a State of nationality), 8 (Stateless persons and refugees), 9 (State of nationality of a corporation), 10 (Continuous nationality of a corporation), 11 (Protection of shareholders), 12 (Direct injury to shareholders), 13 (Other legal persons), 14 (Exhaustion of local remedies), 15 (Category of claims), 16 (Exceptions to the local remedies rule), 17 (Actions or procedures other than diplomatic protection), 18 (Special treaty provisions) and 19 (Ships’ crews). The draft articles were divided in four parts: One (General Provisions) includring articles 1 and 2; Two (Nationality) divided in chapters I (General Principles) covering article 3, II (Natural Persons) covering articles 4 to 8), III (Legal Persons) covering articles 9 to 13; Three (Local Remedies) covering articles 14 to 15; and Four (Miscellaneous Provisions) covering articles 16 to 19. The Commission decided, in accordance with articles 16 and 21 of its statute to transmit the draft articles, through the Secretary-General, to Governments for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 January 2006. [24]

During the consideration of the fifth report at the fifty-sixth session in 2004, the Commission requested the Special Rapporteur to consider whether the doctrine of clean hands is relevant to the topic of Diplomatic protection and if so whether it should be reflected in the form of an article. The Special Rapporteur prepared a memorandum on this issue, but the Commission did not have time to consider it and decided to come back to this question at the next session. [25] The memorandum was subsequently issued as the sixth report of the Special Rapporteur [26] which was considered at the fifty-seventh session, in 2005. The Commission agreed with the conclusion of the Special Rapporteur that it was not appropriate to include a provision on the "clean hands" doctrine in the draft articles. [27]

The work of the Commission on the topic as described above has been proceeding in accordance with the successive resolutions [28] adopted by the General Assembly under the item relating to the report of the International Law Commission. In these resolutions, the Assembly has reiterated its invitation to Governments to submit relevant materials to assist the Commission in its work on the topic.

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