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Statement by Mr. Duan Jielong Legal adviser Ministry of Foreign Affairs The People's Republic of China At the Sixth Committee of the 65th Session of the UN General Assembly On the Report of the International Law Commission

2010/10/27

Madam Chairperson,

As this is the first time I am taking the floor in the 6th Committee of the General Assembly, please allow me to congratulate you on your election as chairperson of the committee. The Chinese government attaches great importance to the International Law Commission(ILC) and values very much its contribution to the codification and progressive development of the international law. I want to thank Mr. Wismunurti, the chairperson of the ILC, for his comprehensive introduction to the report. On the meetings of yesterday and the day before yesterday, many delegations expressed congratulations to Ms. Xue Hanqin, the former chairperson and Chinese member of the ILC, for her successful election to the International Court of Justice. I am honored on behalf of the Chinese Delegation to extend our gratitudes to all delegations. As a Chinese we are proud of her contribution to the work of the ILC. I'm also confident that the new elected member of the ILC, Mr. Huang Huikang, will also play a constructive role in its work.

I would like to take this opportunity to express our deep condolences on the untimely passing away of Ms. Paula Escarameia, who has served as an important member of the International Law Commission. My condolences also goes to her family and the government and people of Portugal.

Then I want focus my comments on three topics, expulsion of aliens, effects of armed conflicts on treaties and protection of persons in the event of disasters.

Expulsion of Aliens

At the 61st session of the International Law Commission,

Mr. Kamto, Special Rapporteur for the topic, presented a revised version of draft articles on protection of human rights of persons who have been or are being expelled and submitted a draft work plan, both of which were then considered by the Commission at its 62nd session in addition to the 6th report of the Special Rapporteur. China expresses its appreciation to Mr. Kamto for his conscientious and untiring efforts. In order to support the Commission in its work on the topic, the Chinese government, in compliance with the relevant resolution of the General Assembly, submitted to the Secretary General information on its law and practice in respect of the topic. We hope that the information will be referred to for the work on this topic.

The Revised Draft Articles on Protection of Human Rights of Persons Who Have Been or Are Being Expelled

The Chinese delegation appreciates the efforts of the Special Rapporteur to improve the formulation of the draft articles and endorses the concepts and principles embodied therein to address concerns about the human rights of persons who have been or are being expelled. Meanwhile, the Chinese delegation believes that the purpose of the revised draft articles is to establish international legal principles rather than specific implementation standards governing the expulsion of aliens. Consequently, those draft articles should neither be too detailed nor incorporate those rights that are yet to be universally accepted among the international community. There should be no place whatsoever in the revised draft articles for anything that may give rise to unilateral evaluation or review by expelling states on the judicial system and human rights situation in receiving states because it can be easily abused and result in unnecessary disagreements between states.

On the basis of above, the Chinese delegation maintains that proper revisions should be made to paragraph 2 of revised draft article 14 and to paragraph 2 of revised draft article 15.

The 6th report of the Special Raporteur and the seven draft articles contained therein

In the view of the Chinese delegation, the report provides a comprehensive analysis of the relevant issues on the basis of a large collection of legal information and state practice. It is of positive significance for creating a proper procedure of expulsion and for protecting the rights and interests of persons who have been or are being expelled. On the draft articles themselves, I have the following comments to make:

Firstly, on Draft Article A, "prohibition of disguised expulsion". While we agree in principle to activities of codification and progressive development of the international law to be carried out by the ILC in this regard, we also wish that protection of the rights of aliens subject to expulsion and the exercise of sovereignty and administration by expelling states should be taken care of in a balanced manner in the consideration of "disguised expulsion". The current text of the draft article is too general and fails to distinguish with accuracy between disguised expulsion which violates the rights and interests of aliens subject to expulsion and legitimate actions of states for the exercise of administration. It may therefore impose inappropriate constraints on the exercise of state sovereignty.

Secondly, on Draft Article 8, "prohibition of extradition disguised as expulsion". The Chinese delegation does not see anything that should stand in the way of extradition of an alien to a requesting state when all conditions for expulsion are met and the expulsion itself does not contravene either international law or domestic law. With transnational crimes becoming ever more complex and sophisticated, states should be encouraged to identify various ways to cooperate in a flexible, practical and effective manner. For this reason, the Chinese delegation suggests that this draft article be deleted. Should the Commission consider it necessary to retain it, the Chinese delegation hopes that it will be revised in such a way as to reflect the above well-grounded concern.

Thirdly, Draft Article B provides for the conditions under which an alien pending expulsion may be detained. Subparagraph (a) of paragraph 1 stipulates that the detention of an alien pending expulsion must be carried out in an appropriate place other than a facility in which persons sentenced to penalties involving deprivation of liberty are detained. Subparagraph (b) further stipulates that the detention of an alien who has been or is being expelled must not be punitive in nature. The Chinese delegation wishes to point out that the act of expulsion in itself is one of the penalties prescribed under criminal code and the decision to expel an alien may have been the outcome of a due process of criminal proceedings. In these circumstances, detention of such a person has to be punitive in nature and the criminal identity of the person renders it neither possible nor necessary to carry out the detention in a place other than a facility in which persons sentenced to penalties involving deprivation of liberty are detained. Furthermore, this requirement for a separate place of detention may have to depend on whether such capacities do exist in the judicial system of expelling states. In light of the above, the Chinese delegation suggests that the relevant draft article be revised so that flexibility can be built in where appropriate.

Effects of Armed Conflicts on Treaties

Before commenting on "Effects of Armed Conflicts on Treaties", the Chinese delegation wishes to express its condolences for the passing away of Sir Ian Brownlie. With his life long dedication, Sir Ian Brownlie made significant contributions to the development of international law.

I also wish to express my appreciation for the efforts of Mr. Caflisch, current Special Rapporteur for the topic. The ILC considered at its 62nd session the first report submitted by the Special Rapporteur, including the 17 draft articles which the Special Rapporteur reformulated, taking into account the comments and observations of states. The Chinese delegation wishes to make the following comments:

Draft Article 2

We have no objection to the inclusion of domestic armed conflicts in the definition on "armed conflicts" so as to bring the characteristics of contemporary armed conflicts into its scope.

However we have taken note of the fact that the definition used in the current draft article is the one used by the International Tribunal for the Former Yugoslavia in the Tadic decision, which describes domestic armed conflicts as "protracted" armed conflicts between government authorities and organized armed groups. While acknowledging the succinctness of the definition, we consider the use of the term "protracted" as a threshold to determine whether an armed conflict falls within the scope of the draft articles, as not conducive to the stability of treaty relations as it may result in the inclusion of any and all use of armed force in the category of armed conflicts as defined by the draft articles regardless of the effects they may or may not have on the application of treaties.

In order to achieve a definition with sufficient accuracy and stringency in the draft article that can enjoy broad support among the international community, we prefer the possibility of drawing on the definition contained in the Geneva Conventions of 1949 and the 1977 Additional Protocol II. We hope that the Commission will improve the draft article on this basis.

(2) Draft Article 5

We have taken note of the categories of treaties enumerated in paragraph 2 of Draft Article 5, whose operation is considered beyond the effects of armed conflicts. However, they do not match the list of categories of treaties in the Annex to Draft Article 5. This discrepancy may very well give rise to misgivings about the relationship between the treaties enumerated in paragraph 2 and those listed in the Annex and whether the enumeration in paragraph 2 is exhaustive. One possible interpretation is that those enumerated in paragraph 2 are treaties whose operation is absolutely beyond the effects of armed conflicts in any circumstances but we doubt if it can find sufficient support in international practice. Since the draft article does not have a conclusive answer about what specific factors may determine the continued operation of a treaty, we in fact have doubts about whether the incorporation of paragraph 2 is going to enhance the understanding and application of the draft article unless it is based on a definite conclusion and its enumeration is exhaustive.

In our view, it will be more conducive to the understanding and application of the draft articles to include in an annex, an indicative list of treaties whose operation will not be affected in the incidence of armed conflicts, as was done in the first reading of the draft articles. We hope that this approach will be followed again and clarifications be made in the commentary to the effect that the list is indicative rather than exhaustive in nature and does not constitute an absolute preclusion of termination or suspension of the operation of treaties listed therein in all circumstances

Draft Article 15

We have taken note of the disagreement on the inclusion in Draft Article 15 of a reference to resolution 3314 (XXIX) of the General Assembly of the United Nations as a basis for the qualification of acts of aggression. Although we believe that as a legal basis or reference documents for the qualification of acts of aggression, the Charter of the United Nations and GA resolution 3314 (XXIX) offer practical guidance that cannot be ignored, we suggest that if the reference is to be retained, the formulation of Draft Article 15 be revised to avoid the impression that the resolution has the same effect as the Charter of the United Nations.

Protection of Persons in the Event of Disasters

Natural disasters are among the serious threats to human life and the safety of people's property. Many countries and their people have suffered tremendously from the ravages of natural disasters. This spring, a powerful earthquake hit the region of Yushu in China's Qinghai Province. In summer, vast areas in southern China were inundated by torrential floods. Those natural disasters caused enormous loss of life and property. The Chinese government responded promptly in the aftermaths of the disasters with measures to mobilize all sectors of society in an unprecedented effort to recover loss and rebuild areas hit by the disasters. In the course of it, the international community offered timely and generous assistance, which was of great help to our efforts in response to the disasters. The government and people of China wish to express their heartfelt thanks. As a country frequently hit by natural disasters, China considers the work carried by the ILC to be of great and practical significance.

The Chinese delegation takes note of the fact that the ILC considered at its 62nd session the 3rd report submitted by Special Rapporteur Valencia-Ospina under this topic while the drafting committee provisionally adopted the three draft articles contained therein. In addition to the three draft articles which cover humanitarian principles, human dignity and primary responsibility of the affected state respectively, another draft articles was added on protection of human rights. We express our appreciation and gratitude to the Commission and Special Rapporteur for their work and wish to make the following comments on the draft articles:

Draft Article 6, "Humanitarian Principles in Disaster Response"

We endorse the view that disaster response should take place in accordance with the principles of humanity, neutrality and impartiality, and consider these principles to be especially important for regulating the provision of international assistance in response to disasters. The assistance provided by the international community should be for humanitarian purpose only and should not in any way constitute an encroachment upon the national sovereignty or interference in the domestic affairs of states affected by disasters. The assistance provided should have no non-appropriate strings attached. We have taken note of the Special Rapporteur's view that the principle of impartiality should include three components: non-discrimination, proportionality and equity per se. As far as "proportionality" is concerned, we believe that the response to a disaster should also be in proportion to the practical needs of affected regions and peoples and to the capacity of affected states for providing their own relief and for receiving relief from others. We hope that the commentary on the draft article will reflect the above points and make a full exposition of the meaning of the draft article.

Draft Article 7, "Human Dignity" and Draft Article 8, "Human Rights"

We understand that respect for human dignity and human rights in the event of disasters is important and carries practical meaning for the full and comprehensive protection of people's rights and interests. In the event of major disasters which create extraordinary and emergency situations, there may be times when some human rights will have to be temporarily mitigated to ensure that rescue activities are carried out promptly and efficiently, or as a result of constraints imposed by realities on the ground. Such temporary mitigation is necessitated by the needs of rescue activities and is permissible under existing international legal instruments. Therefore, we suggest that relevant wording in the draft articles be improved so that a certain degree of flexibility can be built in where appropriate.

Draft Article 9, "Role of the Affected State"

The first paragraph of the draft article emphasizes the duty for rescue and relief of the affected state by virtue of its sovereignty. We maintain that in response to natural disasters, the sovereignty of a state should not only be reflected in its duties and obligations, but also in its right to decide whether to invite other states to participate in the rescue and relief activities of the state or to accept assistance from other states in the light of the gravity of a disaster and its own capacity of rescue and relief. Many international instruments including GA resolution 46/182 refer to a universally accepted principle of international law that the international community should provide assistance with the consent of the affected state. We hope that the Special Rapporteur will affirm this point with clarity in his next report.

This concludes my statement. Thank you, Madam Chairperson.

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