International Law Commission International Law Commission

Last update: February 23, 2018

Analytical Guide to the Work of the International Law Commission

Diplomatic protection

See also: Summary | Texts and Instruments

Mandate

Studies undertaken by the Secretariat and Reports of the Secretary-General

None

Reports of the Working Group or Sub-Committee

  • 49th session of the International Law Commission (1997)
    • Report of the Working Group
  • A/CN.4/L.537 (in ILC Report, A/52/10, 1997, chap. VIII(B), paras. 172–189)
  • ILC Report, A/52/10, 1997, chap. VIII, paras. 169–190
  • 50th session of the International Law Commission (1998)
    • Report of the Working Group

Reports of the Special Rapporteur

  • Raised basic issues underlying the topic and on which the Special Rapporteur sought the views of the Commission. The issues were divided into two broad categories: (a) the legal nature of diplomatic protection; and (b) the nature of the rules governing diplomatic protection.
    • First Report of the Special Rapporteur, Mr. Mohamed Bennouna (50th session of the ILC (1998))
  • Consideration of the definition and scope of the topic, the nature and conditions under which diplomatic protection may be exercised, in particular the requirement of nationality and the modalities for diplomatic protection, addressed in draft articles 1 to 9.
    • First Report on Diplomatic Protection by the Special Rapporteur, Mr.John R. Dugard (52nd session of the ILC (2000))
  • A/CN.4/506, Corr.1 and Add.1
  • ILC report, A/55/10, 2000, chap. V, paras. 411–495
  • ILC report, A/56/10, 2001, chap. VII, paras 167–184 (consideration of A/CN.4/506/Add.1)
  • Consideration of the exhaustion of local remedies rule.
    • Second Report on Diplomatic Protection by the Special Rapporteur, Mr. John R. Dugard (53rd session of the ILC (2001))
  • A/CN.4/514, Corr.1 and Corr.2
  • ILC report, A/56/10, 2001, chap. VII, paras 164–207
  • ILC Report, A/57/10, 2002, chap. V, paras. 150–176 (consideration of draft articles 12 and 13)
  • Overview of the state of the study on the topic. Proposal for draft article 14, covering exceptions to the general principle that local remedies need to be exhausted; as well as for draft article 15 on the burden of proof in the application of the local remedies rule, and draft article 16 on the Calvo Clause.
    • Third Report of the Special Rapporteur, Mr. John R. Dugard, (54th session of the ILC (2002))
  • Review of the diplomatic protection of corporations and of shareholders. Discussion of the Barcelona Traction case, and of the different options open to the Commission. Proposed 6 draft articles (articles 17 to 22), on the protection of corporations and shareholders.
    • Fourth Report of the Special Rapporteur, Mr. John R. Dugard, (55th session of the ILC (2003))
  • Consideration of 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. Proposed 5 additional draft articles (articles 23 to 27).
    • Fifth Report of the Special Rapporteur, Mr. John R. Dugard, (56th session of the ILC (2004))
  • Discussion of the possible inclusion in the draft articles of a provision on the "clean hands" doctrine.
    • Sixth Report of the Special Rapporteur, Mr. John R. Dugard, (57th session of the ILC (2005))
  • Proposals for second reading of draft articles 1 to 19, together with a proposal for a further draft article on the right of the injured national to receive compensation.
    • Seventh Report of the Special Rapporteur, Mr. John R. Dugard, (58th session of the ILC (2006))

Reports of the Drafting Committee

  • 54th session of the International Law Commission (2002)
    • Titles and texts of draft articles 1, 2[3], 3[5], 4[9], 5[7], 6, and 7[8] adopted by the Drafting Committee
  • 55th session of the International Law Commission (2003)
    • Titles and texts of draft articles 8 [10], 9 [11] and 10 [14] adopted by the Drafting Committee
    • Statement of the Chairman of the Drafting Committee
  • 56th session of the International Law Commission (2004)
    • Titles and texts of the draft articles adopted by the Drafting Committee on first reading
    • Statement of the Chairman of the Drafting Committee
  • 58th session of the International Law Commission (2006)
    • Titles and texts of the draft articles adopted by the Drafting Committee on second reading
    • Statement of the Chairman of the Drafting Committee

Comments by Governments

  • 49th session of the International Law Commission (1997)
    • Report of the Secretary-General: comments received from Governments
  • 58th session of the International Law Commission (2006)
    • Comments and observations received from Governments
  • 58th session of the International Law Commission (2006)
    • Comments and observations received from Governments

Other

None

Reports of the International Law Commission

  • Report of the International Law Commission on the work of its forty-seventh session, 2 May to 21 July 1995
    • The Commission decided to propose this topic as a new topic for inclusion in its agenda.
    • Discussion in Plenary: 2416 meeting (13 July 1995)
  • Report of the International Law Commission on the work of its forty-eighth session, 6 May to 26 July 1996
    • The Commission identified this topic as a possible future topic for consideration and set out a general outline of the main legal problems raised (see Addendum 1 of Annex II). Governments were invited to express their views.
    • Discussion in Plenary: 2466th and 2467th meetings (22 and 23 July 1996)
  • Report of the International Law Commission on the work of its forty-ninth session, 12 May to 18 July 1997
    • The Commission, after considering the report of the Working Group on the topic, established at the present session to examine further the topic and to indicate the scope and the content of the topic in the light of the comments and observations made by Governments, endorsed the report and decided that the topic was appropriate for consideration and took note of a more detailed outline on the scope and content of the topic proposed by the Working Group (see A/52/10, paras. 172–189). The Commission appointed Mr. M. Bennouna Special Rapporteur for the topic, who will submit a preliminary report at its fiftieth session on the basis of that outline. It was also the Commission's intention to complete the first reading of the topic by the end of the present quinquennium.
    • Discussion in Plenary: 2477th and 2513th meetings (15 May and 15 July 1997)
  • Report of the International Law Commission on the work of its fiftieth session, 20 April to 12 June 1998 and 27 July to 14 August 1998
    • The Commission considered the preliminary report of the Special Rapporteur, and subsequently established an open-ended Working Group, chaired by the Special Rapporteur, to consider 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 issues which should be covered in the second report of the Special Rapporteur for the fifty-first session of the Commission. The Commission subsequently considered and endorsed the report of the Working Group.
    • Discussion in Plenary: 2520th, 2521st, 2522nd and 2523rd meetings (28 April to 1 May 1998), and 2534th and 2544th meetings (22 May and 9 June 1998, respectively)
  • Report of the International Law Commission on the work of its fifty-first session, 3 May to 23 July 1999
    • Following the resignation of the Special Rapporteur, the Commission appointed Mr. Christopher J.R. Dugard Special Rapporteur for the topic.
  • Report of the International Law Commission on the work of its fifty-second session, 1 May–9 June and 10 July–18 August 2000
    • The Commission had before it the first report of the Special Rapporteur, and considered the first part. It referred articles 1, 3 and 6 to open-ended informal consultations chaired by the Special Rapporteur. Taking into account the report of informal consultations, the Commission referred draft articles 1, 3 and 5 to 8 to the Drafting Committee.
    • Discussion in Plenary: 2617th, 2618th, 2619th and 2620th meetings (9 to 12 May 2000), and 2624th, 2625th, 2626th and 2627th, and 2635th meetings (19 May to 25 May and 9 June 2000, respectively)
  • Report of the International Law Commission on the work of its fifty-third session, 23 April– 1 June and 2 July–10 August 2001
    • The Commission considered the remaining portions of the first report of the Special Rapporteur, dealing with the question of continuous nationality and transferability of claims, and then the first part of his second report. The Commission referred draft articles 9, 10 and 11 to the Drafting Committee.
    • Discussion in Plenary: 2680th, 2685th, 2686th, 2687th meetings (25 May and 9 to 11 July 2001), and 2688th, 2689th and 2690th meetings (12 to 17 July 2001)
  • Report of the International Law Commission on the work of its fifty-fourth session, 29 April –7 June and 22 July–16 August 2002
    • The Commission first considered the remainder of the Second Report of the Special Rapporteur concerning draft articles 12 and 13. Subsequently, it discussed the Third Report, and decided to only refer draft article 14, paragraphs (a), (b), (c), (d) ((c) and (d) both to be considered in connection with paragraph (a)), and (e) to the Drafting Committee. The Commission further considered and adopted the report of the Drafting Committee on draft articles 1 to 7 [8], together with commentaries. The Commission also established an open ended Informal Consultation, to be chaired by the Special Rapporteur, on the question of the diplomatic protection of crews, corporations and shareholders.
    • Discussion in Plenary: 2712th, 2713th, 2714th, 2715th, 2716th, 2717th, 2718th, 2719th meetings (30 April to 14 May 2002), 2725th meeting (24 May 2002), 2727th, 2728th, 2729th, 2730th, 2731st, 2732nd meetings (30 May to 7 June 2002), 2740th (2 August 2002), and 2745th and 2746th meetings (12 and 13 August 2002)
  • Report of the International Law Commission on the work of its fifty-fifth session, 5 May–6 June and 7 July–8 August 2003
    • The Commission had before it the Fourth Report of the Special Rapporteur. It considered draft articles 17 to 22, and decided first of all to establish an open-ended Working Group, chaired by the Special Rapporteur, on article 17, paragraph 2. After having considered the report of the Working Group, the Commission decided to refer article 17 to the Drafting Committee, as proposed by the Working Group, as well as draft articles 18 to 22. The Commission than discussed the report of the Drafting Committee and provisionally adopted draft articles 8 [10], 9 [11] and 10 [14], with commentaries.
    • Discussion in Plenary: 2757th, 2758th, 2759th, 2760th, 2761st, 2762nd meetings (14 May to 23 May 2003), 2764th meeting (28 May 2003), 2768th meeting (5 June 2003), and 2775th, 2776th and 2777th meetings (15, 16 and 18 July 2003))
  • Report of the International Law Commission on the work of its fifty-sixth session, 3 May to 4 June and 5 July to 6 August 2004
    • The Commission had before it the Fifth Report of the Special Rapporteur, covering draft articles 23 to 27. The Commission decided to 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 a set of 19 draft articles on diplomatic protection, with commentaries. 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.
    • During the consideration of the fifth report, 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.
    • Discussion in Plenary: 2791st, 2792nd, 2793rd, 2794th, 2795th, 2796th (3 to 11 May 2004), 2806th (28 May 2004) and 2827th (3 August 2004) meetings.
  • Report of the International Law Commission on the work of its fifty-seventh session, 2 May to 3 June and 11 July to 5 August 2005
    • The Commission had before it the Sixth Report of the Special Rapporteur, covering the doctrine of clean hands. The Commission further considered several other issues regarding the draft articles as adopted on first reading in 2004.
    • Discussion in Plenary: 2844th, 2845th and 2846th (25 to 31 May 2005) meetings.
  • ILC Report, A/60/10, 2005, chap. VII, paras. 207–241
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/560)
  • Report of the International Law Commission on the work of its fifty-eighth session, 1 May to 9 June and 3 July to 11 August 2006
    • The Commission had before it comments and observations received from Governments on the draft articles adopted on first reading in 2004, as well as the seventh report of the Special Rapporteur containing proposals for the consideration of draft articles 1 to 19 on second reading, as well as a proposal for an additional draft article, in light of the comments and observations received from Governments.
    • The Commission subsequently adopted the draft articles on diplomatic protection, on second reading, together with commentaries. In accordance with article 23 of its Statute, the Commission decided to recommend to the General Assembly the elaboration of a convention on the basis of the draft articles.
    • Discussion in Plenary: 2867th, 2868th, 2869th, 2870th, 2871st and 2881st meetings, held from 1 to 5 and 30 May 2006, and 2906th, 2907th, 2908th and 2909th meetings, held on 4, 7 and 8 August 2006.
  • ILC Report, A/61/10, 2006, chap. IV, paras. 34–50
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/577, Add.1 and Add.2)

General Assembly Action

  • Resolution 50/45 of 11 December 1995
    • Noted the suggestion of the Commission to include in its agenda this topic and decided to invite Governments to submit comments on this suggestion through the Secretary-General for consideration by the Sixth Committee during the fifty-first session of the Assembly.
  • See topical summary of debate in the Sixth Committee (A/CN.4/472 and Add.1)
  • Resolution 51/160 of 16 December 1996
    • Inviting the Commission further to examine 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 that Governments may wish to submit.
  • Resolution 52/156 of 15 December 1997
    • Endorsing the decision of the Commission to include the topic in its agenda.
  • See topical summary of debate in the Sixth Committee (A/CN.4/483)
  • Resolution 53/102 of 8 December 1998
    • 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 International Law Commission in its future work on the topic.
  • See topical summary of debate in the Sixth Committee (A/CN.4/496)
  • Resolution 54/111 of 9 December 1999
    • Reiterated its invitation to Governments to submit the most relevant national legislation, decisions of domestic courts and State practice relevant to diplomatic protection in order to assist the International Law Commission in its future work on the topic.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/504 and Add.1)
  • Resolution 55/152 of 12 December 2000
    • Reiterated its invitation to Governments to submit the most relevant national legislation, decisions of domestic courts and State practice relevant to diplomatic protection in order to assist the International Law Commission in its work on the topic.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/513)
  • Resolution 56/82 of 12 December 2001
    • Reiterated its invitation to Governments to submit the most relevant national legislation, decisions of domestic courts and State practice relevant to diplomatic protection in order to assist the International Law Commission in its work on the topic.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/521 and Corr.1)
  • Resolution 57/21 of 19 November 2002
    • Reiterated its invitation to Governments to submit the most relevant national legislation, decisions of domestic courts and State practice relevant to diplomatic protection in order to assist the International Law Commission in its work on the topic.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/529)
  • Resolution 59/41 of 2 December 2004
    • Expressed its appreciation to the International Law Commission for the completion of the first reading of the draft articles on Diplomatic protection. Drew the attention of Governments to the importance for the International Law Commission of having their views on the draft articles and commentary on Diplomatic protection.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/549 and Add.1)
  • Resolution 60/22 of 23 November 2005
    • Drew the attention of Governments to the importance for the International Law Commission of having their views on the draft articles and commentary on diplomatic protection; which were adopted by the Commission at its fifty-sixth session.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/560)
  • Resolution 61/34 of 4 December 2006
    • Expressed its appreciation to the International Law Commission for the work accomplished at its fifty-eighth session, inter alia, for the completion of the second reading of the draft articles on diplomatic protection.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/577, Add.1 and Add.2)

Final Outcome

International Law Commission (58th session, 2006)

  • The Commission adopted the draft articles on diplomatic protection, on second reading, together with commentaries.
  • In accordance with article 23 of its Statute, the Commission decided to recommend to the General Assembly the elaboration of a convention on the basis of the draft articles.
 

General Assembly

  • Resolution 61/35 of 4 December 2006
    • Took note of the draft articles on diplomatic protection, presented by the Commission, and invited Governments to submit comments concerning the recommendation by the Commission to elaborate a convention on the basis of the articles.
    • Decided to include in the provisional agenda of its sixty-second session (2007) an item entitled “Diplomatic protection”.
  • See the website of the Sixth Committee of the General Assembly and the topical summary of debate in the Sixth Committee (A/CN.4/577, Add.1 and Add.2)
  • Resolution 62/67 of 6 December 2007
    • Welcomed the conclusion of the work of the International Law Commission on diplomatic protection and its adoption of the draft articles and commentary on the topic.
    • Commended the articles on diplomatic protection presented by the Commission, the text of which was annexed to the resolution, to the attention of Governments, and invited them to submit in writing to the Secretary-General any further comments concerning the recommendation by the Commission to elaborate a convention on the basis of the articles.
    • Decided to include in the provisional agenda of its sixty-fifth session (2010) an item entitled “Diplomatic protection” and to further examine, within the framework of a working group of the Sixth Committee, in light of the written comments of Governments, as well as views expressed in the debates held at the sixty-second session of the General Assembly, the question of a convention on diplomatic protection, or any other appropriate action, on the basis of the articles.
  • See the website of the Sixth Committee of the General Assembly
  • Resolution 65/27 of 6 December 2010
    • Commended once again the articles on diplomatic protection to the attention of Governments, and invited them to submit in writing to the Secretary-General any further comments concerning the recommendation by the Commission to elaborate a convention on the basis of the articles.
    • Decided to include in the provisional agenda of its sixty-eighth session (2013) an item entitled “Diplomatic protection” and, within the framework of a working group of the Sixth Committee, in the light of the written comments of Governments, as well as views expressed in the debates held at the sixty-second and sixty-fifth sessions of the General Assembly, to further examine the question of a convention on diplomatic protection, or any other appropriate action, on the basis of the articles and to also identify any difference of opinion on the articles.
  • See the website of the Sixth Committee of the General Assembly
  • Resolution 68/113 of 16 December 2013
    • Commended once again the articles on diplomatic protection to the attention of Governments, and invited them to submit in writing to the Secretary-General any further comments, including comments concerning the recommendation by the Commission to elaborate a convention on the basis of the articles.
    • Decided to include in the provisional agenda of its seventy-first session (2016) an item entitled “Diplomatic protection” and, within the framework of a working group of the Sixth Committee, in the light of the written comments of Governments, as well as views expressed in the debates held at the sixty-second, sixty-fifth and sixty-eighth sessions of the General Assembly, to continue to examine the question of a convention on diplomatic protection, or any other appropriate action, on the basis of the articles and to also identify any difference of opinion on the articles.
  • See the website of the Sixth Committee of the General Assembly
  • Resolution 71/142 of 13 December 2016
    • Commended once again the articles on diplomatic protection to the attention of Governments, and invites them to submit in writing to the Secretary-General any further comments, including comments concerning the recommendation by the International Law Commission to elaborate a convention on the basis of the articles;
    • Decided to include in the provisional agenda of its seventy-fourth session the item entitled “Diplomatic protection” and, within the framework of a working group of the Sixth Committee, in the light of the written comments of Governments, as well as views expressed in the debates held at the sixty-second, sixty-fifth, sixty-eighth and seventy-first sessions of the General Assembly, to continue to examine the question of a convention on diplomatic protection, or any other appropriate action, on the basis of the above-mentioned articles and to also identify any difference of opinion on the articles.
  • See the website of the Sixth Committee of the General Assembly