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Statement by Mr. XU Hong Director General of the Department of Treaty and Law, Ministry of Foreign Affairs, People's Republic of China At the 71st Session of the UN General Assembly On Agenda Item 78 Report of the International Law Commission on the work of its sixty-eighth session (Part 1: Chapters1, 2, 3, 4, 5, 6,13)

2016/10/24

Mr. Chairman,

It is a pleasure to once again meet with colleagues in New York. Since this is the first time that I take the floor in the Sixth Committee at this session of the General Assembly as the representative of China, please allow me to congratulate you on your election to the chairmanship. I am confident that you will steer this session to a successful conclusion. I also wish to thank the Chairman of International Law Commission(“ILC”) for his introduction to the report on the work of the 68th session of the Commission. It is very helpful to our discussions.

Important progress has been made at the 68th session of the ILC, including the consideration of the topic “Jus cogens” for the first time, the adoption on second reading of the entire set of draft articles on “the protection of persons in the event of disasters” and their commentaries, and the adoption on first reading draft conclusions on “identification of customary international law” and those on “subsequent agreements and subsequent practice in relation to the interpretation of treaties”. In addition, new progress was made on such topics as “Immunity of State officials from foreign criminal jurisdiction”, “Crimes against humanity”, and “Protection of the atmosphere”. The Chinese delegation appreciates and supports the proactive work of the Commission.

Mr. Chairman,

I would like to begin by stating the Chinese delegation’s views on the topic “Protection of Persons in the Event of Disaster”. My delegation noted that the 68th session of the ILC adopted on second reading the entire set of draft articles comprising a preamble and 18 provisions, together with commentaries thereto, which represented significant progress on the basis of the first reading. The Chinese delegation appreciates the outstanding contribution made by Special Rapporteur Mr. Valencia-Ospina and would like to thank him for that. Our thanks also go to other members of the Commission for their efforts and wisdom.

Compared with previous drafts, the draft articles adopted on second reading have drawn on some comments submitted by states and international organizations and made adjustments to the rights and obligations of both the affected states and the assisting parties. A higher threshold was set for the duty of an affected state to seek external assistance by changing the phrase “a disaster exceeds a State’s national response capacity” into “a disaster manifestly exceeds a State’s national response capacity”. The previous expression that assisting parties “have the right to” provide assistance was changed to “may” which is not legally binding. And the latest draft also added the obligation of assisting parties to expeditiously give due consideration and reply to the request for assistance of an affected state. China believes that these adjustments improve the parity and balance between the two sides in terms of rights and obligations, and are conducive to enhancing the effectiveness of international disaster relief cooperation. As such, they have my delegation’s support.

On the other hand, we have noticed that the draft is still rather heavy on Lex Ferenda, such as the obligations of the affected state to seek external assistance and to not arbitrarily withhold consent to external assistance. Although these provisions are a positive factor in the progressive development of the norms of international law governing disaster relief and in strengthening the protection of affected personnel, they are not widely recognized state practice and hence far from becoming Lex Lata. Whether they are binding on a state in the future depends on the acceptance of that state.

Mr. Chairman,

With respect to the topic “Identification of customary international law”, the Commission considered the fourth report of Special Rapporteur Mr. Wood, and adopted the whole set of 16 draft conclusions and commentaries thereto on first reading. The Chinese delegation appreciates the excellent work of the Commission and the Special Rapporteur. On the basis of our previous statements on this topic, I wish to emphasize the following four points:

1. Practice of states is the most important evidence of the formation of rules of customary international law, therefore it should be comprehensive, consistent and fully representative, comprising both past state practice and current state practice. Since the founding of the United Nations, developing countries have become increasingly active on the international stage, playing an ever more visible role in the development of international norms and international order. State practice of developing countries should be accorded enough attention and regarded as important evidence of the formation of rules of customary international law.

We have noted that Draft Conclusion 4 on “Requirement of practice” states that “conduct of other actors” “may be relevant” when assessing the practice of states and international organizations. We are of the view that, in principle, non-state entity or non-governmental international organization is not subject of the international law, and therefore their conduct cannot contribute to the formation of customary international law. Moreover, the expression “may be relevant” is rather ambiguous. Whether it is necessary to keep such an ambiguous expression in Draft Conclusion 4 is still an open question.

2. We need to exercise caution when considering whether "inaction" can serve as evidence for opinio juris. Consent of state, including implied consent, is the foundation of customary international law. However "inaction" cannot be treated simply as "implied consent". We are of the view that, when determining whether “inaction” could be treated as “implied consent”, we should give comprehensive consideration to various factors, such as whether a state has knowledge of the relevant rules and whether it is obligated and in a position to react and so on, in order to decide the true intention of the state.

3. The role of decisions of national courts and the theories of authoritative public law scholars should be viewed properly. Decisions of a national court are merely judicial practice of that state, reflecting only a particular legal system. Their reflection of and impact on international law are extremely limited. Historically, theories of authoritative public law scholars had served as important basis for the existence of international law. However, with the increase of international legislation, international treaties have become the most important source of international law whereas theories of public law scholars are more expressions of their own views. Therefore, decisions of national courts and theories of authoritative public law scholars only play a limited subsidiary role in the formation of customary international law.

4. The provision of Draft Conclusion 15 on “Persistent objector” is still debatable. According to the draft conclusion, if a state is clearly, continually and consistently against a rule of customary international law in the process of formation, the state should not be bound by such rule. We are of the view that, it should not be arbitrarily determined whether a state constitutes “persistent objector” without taking various factors into full consideration in light of the realistic situations, including whether the state has a knowledge of such rule, and whether the state is under the obligation to make clear, continual and consistent opposition.

In addition, we believe that in the identification and application of the rules of customary international law, there should be deterrence against evading in bad faith explicit treaty obligations through selective application of customary international law.

Mr. Chairman,

With regard to the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, the Commission considered the 4th report of Special Rapporteur Mr. Nolte and adopted on first reading 13 Draft Conclusions and the commentaries thereto. The Chinese delegation appreciates the results achieved by the Commission and the Special Rapporteur. We believe that under this topic, the role of subsequent agreements and subsequent practice in the interpretation of treaties has been examined and clarified, which provides a helpful guidance to the interpretation of treaties.

The Chinese delegation is of the view that interpretation of treaties should strictly follow Article 31 of the 1969 Vienna Convention on the Law of Treaties, and be conducted in good faith according to the wording and context and in light of the objects and purposes of the treaties. Subsequent agreements and subsequent practice only play a supplementary role in the interpretation of treaties. We want to emphasize that international legislation should be made through expansion of interpretation, and in this regard, subsequent practice should not contravene the objects and purposes of the treaty, nor should it be used as a tool to expand the scope of interpretation or even to amend the treaty covertly.

Regarding draft conclusion 13 “pronouncements of expert treaty bodies”, the Chinese delegation is of the view that, whether a pronouncement of expert treaty body may give rise to subsequent agreement or subsequent practice should be treated in a prudent way. Any expert treaty body, when making such pronouncement, should pay special attention not to act beyond its authorization, and should listen fully to the opinions of contracting parties, so as to avoid any confusion in understanding of the treaty obligations.

Thank you, Mr. Chairman.

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