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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 62nd Session of the UN General Assembly, on Item 82 "Report of the International Law Commission"
(Expulsion of Aliens, Effects of Armed Conflicts on Treaties, Responsibility of International Organizations)

2007/10/29

 

(New York, 29 October 2007)

Mr. Chairman,

The Chinese delegation wishes to thank Professor Brownlie for his succinct and enlightening presentation and congratulate the International Law Commission on its achievements. On this occasion, I wish to comment on the following four topics:

I. Expulsion of Aliens

At its 59th session, the Commission considered the seven draft articles contained in the second and the third reports submitted by the special rapporteur under the topic. We express our appreciation to the special rapporteur, Mr. Kamto, for his excellent work. On some of the issues in the draft articles, I have some brief comments.

1. The Chinese delegation is of the view that since expulsion of aliens pertains to the norms governing the treatment of aliens, a matter in the realm of traditional international law where a wealth of legislation and practice has accumulated at the international level, efforts to address this topic should be more focused on the codification of existing international law.

2. The scope and the definition of the draft articles (draft articles 1 & 2). In territorial terms, the scope of the draft articles is confined to aliens who have entered the territory. The Chinese delegation believes that aliens within zones of immigration control should be accorded the same respect and protection for their basic human rights as those in the territory although their status may not be the same as the latter. Therefore, we suggest that the treatment of the former be included in the purview of the study under this topic.

3. The framework for the draft articles on expulsion of aliens (draft article 3). The Chinese delegation maintains that the draft articles should be framed on the basis of the right of the state to expel as a general principle and the prohibition of expulsion as an exception. In order make all relevant provisions in the rest of the draft articles in relation to expulsion of aliens (including refugees and stateless persons) subject to the right of the state to expel as provided for in paragraph 1 of draft article 3, we propose to revise this paragraph to read as follows: "Out of considerations of national security and public order and in compliance with law, states in exercise of its sovereignty have the right to expel any aliens in its territory." Consequently, paragraph 2 should be revised to become an exception clause to the right of the state to expel, namely, as an exception, states are prohibited from expelling aliens where the provisions of the draft articles and relevant international treaties so stipulate."

4. In principle, the Chinese government endorses the provisions on non-expulsion of refugees and stateless persons and on the prohibition of collective expulsion (draft articles 5 & 7). However, the provisions of on non-expulsion of refugees should be formulated in strict conformity with those contained in the 1951 Convention on the Status of Refugees and its protocols and the scope of definition on refugees should not be expanded. The draft articles should not in any way contravene the above-mentioned convention and its protocols. We propose to give a clear scope of collective expulsion, and distinguish different treatment based on different situation of the persons expelled.

Before concluding my comments on this topic, I wish to take this opportunity to give a brief account of China's legal rules that regulate expulsion of aliens. Under Chinese law, aliens including stateless persons convicted of a crime or other violations are subject to expulsion in the following circumstances: Firstly, under China's criminal law, Chinese courts can decide to expel a convicted alien as a separate or additional applicable penalty. Secondly, Rule 10 of China's Penal Code on Violations of Public Order stipulates, "Aliens who violate public order are subject to time bound departure or expulsion as an additional applicable penalty." Thirdly, according to regulations governing the application of Law on Regulating the Entry and Exit of Aliens, aliens who enter into or reside in China illegally or with forged documents are subject to time bound departure or expulsion as a penalty handed down by the Bureau of Public Security.

II. Responsibility of International Organizations

At its 59th session this year, the ILC considered and adopted the 15 draft articles on responsibility of international organizations contained in the 5th report submitted by the special rapporteur, Mr. Gaja. We congratulate the Commission on its achievements and express our appreciation to Mr. Gaja for his excellent work. The Chinese delegation wishes to make some brief comments on this topic.

1. In the view of the Chinese delegation, the draft articles adopted by the Commission at referendum follow the general pattern of the draft articles on responsibility of states and contain revisions and additions where necessary to reflect the particular features of responsibility of international organizations. The draft articles as a whole deserve our acknowledgement. Meanwhile, it is also our view that since some of the provisions of the draft articles are based on assumption, the commentary on those articles seems to be inadequate and the analysis and exposition of specific instances insufficient. In order to render the draft articles more convincing, we wish to see more references in the commentary to the legal and factual bases of the provisions.

2. We believe that while engaging itself in the codification and progressive development of international law on responsibility of international organizations, the ILC should not lose sight of the study of primary rules of international law in connection with responsibility of international organizations. As breach of their international obligations constitutes a precondition for incurring responsibility, a clear definition on the rights and obligations of international organizations is essential for the codification to be based on a solid foundation. As opposed to states, international organizations do not have general rights and obligations under international law. Rights and obligations of international organizations originate mainly from their respective statutes and regulations and therefore vary from organization to organization. As a result, a study of obligations that are binding on international organizations will give us a clear vision of existing rules of international law pertaining to international organizations and enable us to properly address the question of responsibility of international organizations.

III. Effects of Armed Conflicts on Treaties

At its 59th session this year, the ILC considered the third report of the special rapporteur and established a working group under the chairmanship of Mr.Caflisch. We express our apprecian to the special rapporteur, Mr. Brownlie and the working group for their excellent work. Now I wish to make some brief comments on the topic.

1. On the scope of definition on armed conflicts that have effects on treaties (draft article 2) The Chinese delegation is of the view that non-international armed conflicts such as internal armed conflicts should not be included as armed conflicts that have effects on treaties. As a qualitative difference exists between internal and international armed conflicts, it is not feasible to have rules pertaining to international conflicts extended to cover internal armed conflicts. States being subjects in both international armed conflicts and treaties, the outbreak of armed conflicts between them will as a matter of course have effects on treaties. Whereas parties to internal conflicts are not states and their actions cannot be considered state actions. For this reason, the inclusion of internal armed conflicts in the scope of definition has neither legal nor factual bases.

We have taken note of the proposal of the working group that in principle the definition of armed conflict should cover internal armed conflicts with the proviso that states should only be able to invoke the existence of internal armed conflicts in order to suspend or terminate treaties when the conflict has reached a certain level of intensity. The Chinese delegation is of the views that as there are no clear criteria to define internal armed conflicts that have "reached a certain level of intensity"; this proposal may be abused to invoke the existence of internal armed conflicts in order to suspend or terminate treaties and is not conducive to the stability of treaties. We recommend that the working group carry out further study on the feasibility of the proposal.

2. Draft article 3 stipulates, "The outbreak of an armed conflict does not necessarily terminate or suspend the operation of treaties as (a) between the parties to the armed conflict;" We endorse this provision. We believe that the provision is a reflection of the international practice since World War II about the continuity of the operation of treaties and a revision to the traditional concept about the automatic termination or suspension of treaties as a result of the outbreak of an armed conflict. This principle will contribute to the stability and healthy development of international relations.

3. On the indicia of susceptibility to termination or suspension of treaties in case of an armed conflict (draft article 4) In principle, the Chinese delegation agrees that the intention of the parties at the time the treaty was concluded be used as the main criterion to determine the susceptibility to termination or suspension of treaties in case of an armed conflict. In addition, we believe that other relevant factors such as the objectives and purposes, the provisions and nature of treaties should also be taken into account.

4. On whether the legality or illegality of use of force has any effect on the operation of treaties (draft article 10) The Chinese delegation believes that the effect of legitimate use of force on treaties is different from the effect of illegitimate use of force on treaties. We endorse in principle the provisions of the draft article that a state exercising its right of individual or collective self-defense in accordance with the Charter of the United Nations is entitled to suspend in whole or in part the operation of a treaty incompatible with the exercise of that right. We hold that states committing the illegitimate use of force are not entitled to terminate or suspend the operation of a treaty lest they benefit from such illegal acts. We have take note of the intention of the working group to continue the study of this issue and look forward to receiving from the experts the results of the study at an early date.

IV. On new topics in the program of work of the International Law

Commission

The Chinese delegation supports the inclusion in its program of work of the topic, immunity of state officials from foreign criminal jurisdiction and endorses the appointment of Mr. Kolodkin as special rapporteur. We are confident that with his outstanding skills and rich experience in diplomatic and legal fields, the work under this topic will yield the expected results.

The Chinese delegation believes that work under this topic should be focused on the codification of rules of existing international law and framed on the basis of immunity of state officials from foreign criminal jurisdiction established by international customary law as a general principle and the denial of such immunity as an exception.

The Chinese delegation hopes that the ILC will constantly achieve new results to contribute to the codification and progressive development of international law.

Thank you, Mr. Chairman.

 

 

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