|Statement by Mr. DUAN Jielong, Director-General of Treaty and Law Department, Ministry of Foreign Affairs of China, at the Sixth Committee of the 63rd Session of the UN General Assembly, on Item 75: "Report of the International Law Commission on the Work of its 60th Session Part One"|
New York, 28 October 2008
As this is the first time I am taking the floor in the 6th Committee during the current session of the GA, please allow me to congratulate you on your election as chairman of this committee. I also congratulate other members of the bureau on their election.
This year marks the 60th anniversary of the International Law Commission. With its hard work over 60 years to promote constantly and positively the progressive development and codification of international law, the International Law Commission has made a unique and important contribution to the maintenance of international peace and security. The Chinese delegation expresses its great appreciation in this regard.
I now wish to comment on the topic of "Shared Natural Resources" and the topic of "Effects of Armed Conflicts on Treaties", both of which were considered at the 60th session of the ILC.
I. On the topic of "Shared Natural Resources"
As aquifers constitute an important source of fresh water resources on which mankind depends for its very survival, the protection and reasonable exploitation and utilization of aquifers is of great significance to each and every State. During the 60th session, the Commission considered the 5th report submitted by the special rapporteur on this topic and adopted on second reading 19 draft articles on "The law of transboundary aquifers" and their commentaries. The Chinese delegation welcomes the results that the Commission has achieved in its work. We take note of the contribution that the special rapporteur Ambassador Chussei Yamada has made to the study of this topic. We also take note of the fact that for the study of the topic, the Commission organized on many occasions briefings by experts on groundwaters in order to obtain technical information about aquifers. The Chinese delegation would like to express its appreciation to Ambassador Chussei Yamada and the Commission as a whole for their professionalism and dedication.
In the draft articles adopted by the Commission on second reading, the sovereignty of each aquifer State over the portion of a transboundary aquifer located within its territory is established and relevant principles on the protection and utilization of transboundary aquifers enunciated, including the principle of equitable and reasonable utilization, the principle of the obligation not to cause significant harm and the principle of a general obligation to cooperate. As a priority, the draft articles set out the elements of cooperation for the protection and utilization of transboundary aquifers among the States concerned and envisage a mechanism for such cooperation. As we see it, the draft articles are on the whole balanced.
Meanwhile, we also notes that the Commission's work on this topic is largely the progressive development of international law rather than codification of customary international law. Therefore, the relevant provisions of the draft articles and in particular, those in connection with the mechanism for international cooperation for the joint protection and utilization of transboundary aquifers and those for strengthening the obligations of non-aquifer States are not based on international practice. Furthermore, factors such as the different characteristics of various aquifer systems, the varied needs of aquifer States in the protection and utilization of aquifers and the relationship among aquifer States will bear significantly on the mechanism for the protection and utilization of aquifer systems. Whether the draft articles can serve the purpose of developing international law progressively need to be verified by more practices of States.
One of the major reasons for the failure of the 1997 Convention on the Law of Watercourses to be universally accepted by the international community lies in the fact that the convention did not pay full attention to state practice to some extent. The Chinese delegation thinks that States need time to study and reflect on the draft articles on transboundary aquifers before they can determine how to apply the draft articles in their practices at national or regional level. For this reason, the Chinese delegation believes that it is premature to consider the elaboration of an international convention in this respect at this stage.
II. On the topic of "Effects of Armed Conflicts on Treaties"
By adopting 18 draft articles on first reading during its 60th session, the Commission has thus brought to periodic fruition the consideration of the topic. The Chinese delegation welcomes this outcome and expresses its appreciation to the special rapporteur Mr. Brownlie for his special contribution to this topic. On the whole, the draft articles reflect in a proper manner the fundamental principle that an armed conflict does not of necessity terminate or suspend treaty relations. They have envisaged various scenarios of and set out indicia for susceptibility of treaties to termination, suspension or withdrawal as a result of armed conflicts. As such, the draft articles are well defined and internally coherent and should be acknowledged positively. Now I wish to make some specific comments on the draft articles.
(1) The definition of "armed conflict" as contained in draft article 2 does not draw any distinction between internal armed conflict and international armed conflict. As my delegation understands, in some situations, internal armed conflicts can also affect the application of treaties. Consequently, there are grounds for including them within the vision of the draft articles. However, while the commentary on draft article 1 states, "Draft article 1 situates, as the point of departure for the elaboration of the draft articles, the Vienna Convention on the Law of Treaties of 1969", the formulation of Article 73 of this Convention explicitly precludes internal conflicts. In addition, do the same rules apply without distinction in respect of the effects of internal armed conflict and that of international armed conflict on treaties? Is there anything unique about their respective nature? These are questions which require further study and the study of relevant state practice in particular.
(2) Regarding the annex to draft article 5, the Chinese delegation maintains that the list of treaties as contained in the annex is only indicative in nature and in no way suggests that those treaties listed therein are not affected by armed conflict under all circumstances. Question on whether those treaties would be terminated, withdrawn or suspended as a result of armed conflict has to be evaluated in conjunction with the provisions of other draft articles, draft article 4 in particular. The Chinese delegation recommends that the Commission reflect in an appropriate manner the above considerations during the second reading.
(3) On draft article 8. This article only provides for the obligation of notification by a State engaged in armed conflict if it intends to terminate or withdraw from a treaty. However, according to Article 3, the draft articles also apply to treaties between a State party to the armed conflict and a third State. Therefore, the Chinese delegation recommends that the Commission take into consideration the obligation of notification by a third State which intend to terminate or withdraw from a treaty as a result of armed conflict.
(4) On draft article 11. The Chinese delegation recommends a further study of this draft article. In a real life situation, armed conflict may develop in a direction beyond the anticipation of a State. Should a State expressly agree at the beginning of an armed conflict that a treaty remains in force or continues in operation, it may no longer terminate, withdraw from or suspend the operation of that treaty even if the situation of the armed conflict has changed. Isn't this provision too rigid? The relationship between this draft article and draft article 17 also needs to be clarified in this regard.
(5) On Article 15. The Chinese delegation endorses the policy consideration in this article about prohibition of benefit to an aggressor State. However, if the aggressor State withdraws from a treaty or suspends its application in accordance with the provisions of that treaty, a conflict will occur between Article 15 and the relevant provisions of that particular treaty. This draft article fails to tackle such a conflict. The Chinese delegation therefore recommends that the Commission carry out further clarification of the above issues.
Thank you, Mr. Chairman.