CubaMinrex. Sitio del Ministerio de Relaciones Exteriores de Cuba

Statement by the cuban delegation on the item 80: diplomatic protection. New York, 20 October, 2010.

Madam Chairman,

We appreciate the Report of the Secretary-General on this item, contained in document A/65/182, compiling the opinions of various Member States about the recommendation of the International Law Commission to create a Convention on diplomatic protection.

We take this opportunity to renew once more our recognition and gratitude to the Special Rapporteur, Mr. Christopher John Robert Dugard, for the results attained in the preparation of the draft articles on diplomatic protection, as well as to the International Law Commission for its valuable contributions. We reiterate our willingness to work jointly with all Member States for these significant contributions to become international instruments.

The adoption of a Convention on Diplomatic Protection would enable the harmonization and integration of the whole existing practice and jurisprudence on the matter. Cuba attaches great value to these draft articles including the jurisprudence contained in the rulings of the International Court of Justice, as well as the rules and principles of the customary practice of States.

Cuba considers that a Convention on the basis of the draft articles would contribute to the progressive codification and development of international law, especially to the consolidation of the set of rules referring to conditions that must be met to bring a claim for diplomatic protection.

Regrettably, not all States make a proper use of diplomatic protection as a subsidiary mechanism to protect the rights of their nationals. Instead, sometimes they use it as a pressure mechanism against certain States and in favor of transnational economic interests. Apart from this situation, not all international courts value equally the customary laws established in paradigmatic cases like the Barcelona Traction, disregarding, for convenience, the criteria restricting the exercise of Diplomatic Protection to those natural and legal persons genuinely linked to the claimant States.   

Sometimes, this genuine link between the nationality of the injured person and the claimant States is established violating the criteria for distinguishing between corporate law and the nationality of shareholders’ interests. This is conducive to an environment of insecurity and confusion in international economic relations, aimed at protecting the economic interests of transnational companies to the detriment of developing countries.

The exercise of diplomatic protection constitutes a sovereign right of States, and a vitally important institution for the promotion of the Rule of Law at the international level. It also guarantees a more effective protection of Human Rights and fundamental freedoms of individuals. The recognized applicability of diplomatic protection in said regime to refugees and stateless persons, contributes specially to the protection of the rights of these highly vulnerable groups.

As stated in draft article 1, an international Convention on this matter would strengthen the right of States to invoke, through diplomatic action or other means of peaceful settlement, the responsibility of another State for an injury caused by an internationally wrongful act. 

Likewise, it would contribute to the strengthening of the Rule of Law at the international level and especially the national level, while, as provided in the draft articles, exhaustion of local remedies must be required before exercising diplomatic protection.  
           
Cuba believes these draft articles are closely bound up with the draft articles on the Responsibility of States for internationally wrongful acts. Diplomatic protection is aimed at protecting the rights of people in the face of a wrongful act by a foreign States, provided in the draft articles on the Responsibility of States. Therefore, both issues must be given equal importance, in order to contribute to a better abidance by the international law.

Madam Chairman,

The delegation of Cuba believes that, in order to promote consensus as broad as possible on the realization of these proposals, it is advisable that the draft articles proposed by the International Law Commission are submitted for consideration by a Working Group, in the framework of the Sixth Committee.  

This Working Group would have the role to finalize the details of the future Convention on Diplomatic Protection, so as to polish its text and achieve its greater acceptance by Member States.

We reiterate our total willingness to work in this regard, in order to attain the desired objective of an international convention on Diplomatic Protection. 

Thank you

(Cubaminrex-Misión ONU)

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