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Statement by H.E. Ambassador LIU Zhenmin, Deputy Permanent Representative of China to the United Nations, at the Sixth Committee of the 64th Session of the UN General Assembly, on Item 81: Report of the International Law Commission on the Work of its 61st Session -- Part Two: Reservations to treaties, Expulsion of aliens

2009/10/28

New York, 28 October 2009

Mr. Chairman,

Today, the Chinese Delegation would like to comment on the topics of "reservations to treaties" and "expulsion of aliens" of the report of the International Law Commission. First of all, I would like to commend and thank the Commission and two Special Rapporteurs, Mr. Alain Pellet and Mr. Kamto, for their fruitful work and contributions.

Mr. Chairman,

On the topic of "reservations to treaties", we noted that the International Law Commission, at its 61st session, has provisionally adopted several draft guidelines and commentaries on reservations and interpretative declarations and considered the first three chapters of the 14th report submitted by Special Rapporteur Mr.Alain Pellet. The Chinese delegation wishes to make the following comments:

(i) On reactions to interpretative declarations

We are pleased to see that draft guidelines 2.9.8 and 2.9.9 as provisionally adopted by the Commission are better harmonized now. However, there are still gaps in these two draft guidelines: firstly, the exceptional cases in which an approval of an interpretative declaration or an opposition thereto may be inferred are not spelt out in clear terms; secondly, the provisions have failed to clarify to what extent and in what manner silence can be considered relevant to determining whether it constitutes tacit acceptance. We hope that the Commission will pay attention to those gaps and make further clarification.

(ii) On assessment of permissibility of reservations

We agree that dispute settlement bodies and treaty bodies can engage in such assessment when they are so mandated by contracting parties. At the same time, we are of the view that the assessment of contracting parties shall have priority in effect over the assessments of dispute settlement bodies or treaty bodies. When a reservation is assessed to be impermissible, the author of the reservation should be given the option to withdraw the reservation or denounce the treaty. We believe that this should be made clear in the draft guidelines.

(iii) On the validity of interpretative declarations and validity of reactions to reservations or interpretative declarations

We wish to make three proposals:

First, the concepts of "affected by the reservation" and "a sufficient link with the provision in respect of which the reservation was formulated" as contained in draft guideline 3.4.2 need to be better clarified. The current wording in the draft guidelines of "affected" and "sufficient" are ambiguous.

Second, the wording referring to "a peremptory norm of general international law" should be deleted from draft guideline 3.5. As major differences still exist on such issues as the scope of "peremptory norms of general international law" and who is to determine the scope, the incorporation of this concept in the draft guidelines may give rise to disputes in practice and thereby undermine the value of the draft.

Third, the relevant provision of draft guideline 3.5.1 need to be further clarified, in particular matters such as who is to determine whether a unilateral declaration constitutes a reservation and how the differences are to be settled in case that contracting parties have different views on whether a declaration constitutes a reservation.

Mr. Chairman,

Over the years, both the Commission and the Special Rapporteur have devoted an enormous amount of work to the formulation of the draft guidelines on this topic. While we look forward to the finalization of the draft, a concern we have is that the value of the draft guidelines in guiding State practice may be compromised as it lacks State practice as its basis, its texts are too long and its contents are too detailed. We hope that the Commission and Special Rapporteur will recognize these problems and take appropriate measures to address them.

Mr. Chairman, I now turn to the topic of "expulsion of aliens".

At its 61st session, the International Law Commission considered the 5th report submitted by Mr. Kamto, Special Rapporteur for this topic, the revised draft articles and the new restructured workplan on the basis of the deliberations during the first half of the session. The Chinese delegation appreciates the earnest and responsible approach that the Commission and Mr. Kamto have adopted to this undertaking.

We believe that in the study of this topic, care should be taken to find a balance between the right of States to expel aliens and their obligation to respect the human rights of the persons expelled. Better structured and further enriched, the revised draft as a whole now has greater clarity and should be positively acknowledged in general. Draft Article 10, "Obligation to respect the dignity of persons being expelled" merits special mentioning because it is going to have positive significance in practice.

Paragraph 2 of Draft Article 13 stipulates that, "It may not derogate from the right referred to in paragraph 1 of the present article except in such cases as may be provided for by law and shall strike a fair balance between the interests of the State and those of the person in question". In light of the fact that it is highly difficult in practice to measure whether a balance has been achieved between the interests of the State and those of the person in question, we have doubts as to whether this draft article is operable, and hope the Commission could make further progress on this article.

With regard to the new workplan, it is our views that the overall framework of the workplan is basically sound but we suggests to move Chapter 8 entitled "Rights of expelled persons" to the first part, "General Rules", and add a new chapter, "Conditions for legitimate expulsion" to this part. With regard to part two, "Expulsion Procedures", we suggest that the Commission conduct in-depth study of the relevant practice of States with a view to producing reasonable and feasible articles that all States can accept.

In conclusion, we sincerely hope that the Commission could achieve continuous progress on the codification of this topic.

Thank you, Mr. Chairman.

 

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