|Statement by Mr. WANG Chen at the Sixth Committee of the 61st Session of the UN General Assembly on Item 78: Report of the International Law Commission on the work of its fifty-eighth session (Effects of Armed Conflicts on Treaties, the Obligation to Extradite or Prosecute, Fragmentation of International Law)|
I would like to comment on three topics, namely: effects of armed conflicts on treaties, the obligation to extradite or prosecute, and fragmentation of international law.
1. Effects of armed conflicts on treaties
This year, the ILC considered at its 58th session the second report of the Special Rapporteur, which further examined draft articles 1 through 7 based on the comments made by the ILC and the Sixth Committee of the GA on the first report. We appreciate the excellent work of the Special Rapporteur Mr. Brownlie and we agree with his opinion that these articles are preliminary in nature and need to be substantiated and improved upon in the light of proposals from all sides. I would now like to offer some brief comments on this topic.
1) The scope and subject of the study under this topic. We believe that some treaties entered into by international organizations may be related in some way to armed conflicts. In practice, there are a number of precedents in which an international organization was directly involved in an armed conflict. Armed conflicts are therefore very likely to have direct and practical effects on treaties concluded by international organizations, thus affecting the interests of the international organization in question and other States parties to the treaty. In view of the above, treaties entered into by international organizations should be studied under this topic. Furthermore, different views now exist regarding whether the scope of "armed conflicts" in the draft articles should include internal armed conflicts. The Chinese delegation has indicated in the past that military action taken by a State against its internal rebel groups should not be included in the scope of application of this draft article. That does not mean that a State can disregard its international and treaty obligations. What China would like to emphasize is that a State is responsible for implementing treaties at the international level and that internal conflicts in general do not have a direct bearing on the effectiveness of the treaty.
2) The definition of an armed conflict. We believe the definition contained in the relevant 1985 resolution of the Institute of International Law reflects the traditional and universal understanding of an armed conflict and should serve as a reference. However, in the 1995 "Tadic" case, the definition of an armed conflict given by the ICTY includes conflicts among different armed groups within a State. While that might have had a practical and specific relevance for that particular trial, it seems not to have been universally accepted as a general rule.
3) The criterion of the "intention of state parties at the time the treaty was concluded". We believe that the intention of states parties is indeed the basis of the treaty. Nonetheless, as far as the study of this topic is concerned, since the international security order after the Second World War as set out in the Charter of the United Nations explicitly prohibits the recourse to force in international relations, states parties basically do not need to contemplate the difference between laws in peacetime and laws in wartime, and therefore there is no such thing as anticipation of armed conflicts. Consequently, the criterion of intention for determining the effect of armed conflicts on treaties seems outdated. We think it would perhaps be better to determine the continued application of the treaty during an armed conflict on the basis of the viability of the treaty itself and a contextual approach, including examining the object and purpose of the treaty and the nature and extent of the armed conflict.
4) Draft article 3 "Ipso facto termination or suspension". This article provides that an armed conflict does not ipso facto terminate or suspend the operation of treaties. We believe that as a departure from the traditional view that the occurrence of an armed conflict means the termination of the operation of treaties, it provides an important clarification of and justification for contemporary practice since the Second World War, and represents a safeguard for the basic concept of the viability of the treaty. As the starting point of the study and a core article under this topic, it should therefore be retained.
5) Draft article 7. This article lists the types of treaties that remain in operation during armed conflicts in accordance with their objects and purposes. Such a list can be useful to some extent for clarification and reference purposes. At the same time, we believe the ILC should also study and collate common elements in the various types of treaties in operation during armed conflicts, in order to provide better guidance to future practice.
6) The legality of the use of force. Even though this topic is not aimed at examining specifically the question of legality of the use of force, it seems that the scope of the Commission's study should include the relationship between this topic and the provisions of the Charter relating to the use of force and self defense, as well as the different effects on treaty relations of legal and illegal use of force.
2 The obligation to extradite or prosecute.
The ILC considered at its 58th session this year the preliminary report of the Special Rapporteur on "the obligation to extradite or prosecute", which helps to clarify the Commission's focus in the study and identify the direction of its work for the next stage. We appreciate the excellent work of the Special Rapporteur Mr. Galicki. I would like to comment briefly on a few points.
1) The significance and orientation of the study of this topic. Currently, international security and development are faced with grave threats arising from international, transnational and terrorist crimes. The obligation to extradite or prosecute has an important practical significance to the promotion of international cooperation to combat those crimes effectively and to efforts of ending "impunity". China believes that out of policy considerations of strengthening the obligation to cooperate, while compiling existing treaty rules, the study of this topic should perhaps put more emphasis on the progressive development of relevant rules.
2) The focus of the study of this topic. China believes that the pressing task of the study under this topic is to collect and analyze treaty provisions, implementation practice of States, as well as national legislative and judicial practice of States, so as to clarify whether the obligation to extradite or prosecute is purely a treaty obligation or a general obligation under international customary law. Many treaties concluded in recent years contain the obligation to extradite or prosecute in connection with certain crimes. In view of the universality of these treaties, China believes that at least in certain areas, such as that of counter-terrorism, the obligation to extradite and prosecute is gradually obtaining universal acceptance of the international community. Moreover, China believes that a study may be conducted on the relationship between the obligation to extradite or prosecute and principles of international law such as those of sovereignty, human rights protection, and universal jurisdiction as well as their mutual effect on each other.
3) The applicable scope of crimes under the obligation to extradite or prosecute. China believes that the applicable scope of crimes under the obligation to extradite or prosecute should include at least two categories, namely, international offences and transnational crimes. The obligation, as a means to end impunity and to ensure that all crimes are punished, should certainly cover international offences and transnational crimes of the most serious nature including war crimes, crimes against humanity, genocide, torture and terrorist crimes. Furthermore, I believe that, in some cases, certain crimes under domestic law should also be included in the scope of application under this obligation. Indeed, crimes under domestic laws fall primarily under the extradition treaty as applicable targets, but some crimes under domestic law cause significant harm to the State and the public interest of the people, and the degree of harm might be no less than that of international crimes. Some traditional arguments for refusing to extradite have in fact constituted serious impediments to the punishment of the offences mentioned above. Therefore, if the obligation of a State to extradite or prosecute is established against these offences, it will help to ensure that the offenders receive due punishment, thus restoring law and order in the State and upholding justice for the people.
3. Fragmentation of international law
The ILC has completed its consideration of this topic at this year's session. Under the leadership of Mr. Koskenniemi, the study group of this topic has produced a report of great academic value. The conclusions contained in the study regarding major issues relating to fragmentation of international law can serve as an important reference for the practice of international law, and should be studied and analyzed carefully by governments, international organizations and jurists. Here, I would like to extent my heart-felt congratulations to Mr. Koskenniemi and other members of the study group.
Thank you, Mr. Chairman.