Thank you, Mr. Chairman.
Thank you to the Secretary General and to the Committee for their engagement on this topic. As we stated in 2016 and 2019, the United States shares the view that where the draft articles on diplomatic protection reflect State practice, they represent a substantial contribution to the law on the topic and are thus valuable to States in their current form.
The United States has concerns, however, that certain draft articles are inconsistent with well-settled customary international law. For example, Draft Article 15 would require exhaustion of local remedies except where there is no “reasonably available” local remedy for effective redress, or the local remedies provide no “reasonable possibility” of such redress. We have opposed this standard as too lenient and have noted that the customary international law standard only excuses the exhaustion requirement where the local remedy is “obviously futile” or “manifestly ineffective.” Other topics that do not necessarily reflect customary international law standards include continuous nationality, extinct corporations, the protection of shareholders, and recommended practice.
The United States maintains that any articles considered in a convention on diplomatic protection should reflect the well-established customary international law on this subject. Moreover, negotiation of a convention could undermine the Commission’s substantial work to date by reopening topics on which States had agreed, raising the risk that a significant number of States might not ratify a convention.
Thank you, Chair. We look forward to engaging further on this agenda item.
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