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Statement by Mr. LIU Zhenmin, Director-General of Department of Treaty & Law, Ministry of Foreign Affairs of China, at the Sixth Committee of the 60th Session of the UN General Assembly, on Item 80: Report of the International Law Commission on the work of its 57th session

2005/10/24

(Responsibility of International Organizations & Expulsion of Aliens)

New York, 24 October 2005

Mr. Chairman,

Since I am taking the floor for the first time in the Sixth Committee of the General Assembly, please allow me to begin by congratulating you once again on your election as chairman of the Sixth Committee of the current session of the General Assembly. I also wish to congratulate the other members of the bureau on their election. The Chinese delegation listened attentively to the lucid introduction by Professor Momtaz, Chairman of the International Law Commission, on the work of the Commission. We thank the Commission for its work.

In retrospect of the codification and development of international law over the past 60 years since the founding of the United Nations, we cannot but highly value the significant role that the ILC has played. Of the 26 topics on which the Commission has finished consideration, the final results of 17 such topics have been eventually adopted in the form of convention, such as the 1961 Vienna Convention on Diplomatic Relations and the United Nations Convention on Jurisdictional Immunities of States and Their Property adopted recently by the General Assembly. All those conventions have played and will continue to play an important role in promoting friendly relations among states. Whether or not they eventually become conventional international law, the results of the ILC's work invariably serve as important references in the study and practice of international law. For instance, the Draft Articles on Responsibility of States for Internationally Wrongful Acts were not only quoted by the International Court of Justice in its judgments but also have significantly influenced the diplomatic practice of states.

The Chinese delegation supports the ILC in its continued consideration of issues of international law which are of common concern to the international community and hopes that the Commission will continue to achieve new results in promoting the codification and development of international law, facilitating international exchanges and enhancing the rule of law in the international community.

Mr. Chairman, now I wish to make some preliminary comments on the topic of Responsibility of International Organizations and the topic of Expulsion of Aliens.

I. On Responsibility of International Organizations

During its 57th session this year, the Commission adopted, in the first reading, 9 draft articles under Breach of an International Obligation and Responsibility of an International Organization in Connection with the Act of a State or Another International Organization. We congratulate the Commission on this accomplishment and express our appreciation to Mr. Gaja, the special rapporteur, for his outstanding work.

On the whole, we can go along with the 9 draft articles but at the same time wish to make a few brief comments on some of the issues therein.

Firstly, on whether there is a breach of an international obligation by an international organization when its conduct consists of an omission, we are of the view that, as a subject of international law, an international organization is different from a state in the sense that it is controlled by its member states under the procedure for decision making and in most circumstances its authority is optional instead of mandatory. Consequently, whether an omission on the part of an international organization constitutes an internationally wrongful act will fundamentally depend on whether the international organization is explicitly obligated under international law to take action.

Secondly, on an act that an international organization requests its member states to commit, through decisions, authorizations and recommendations, but that would be internationally wrongful if committed by that international organization itself, we basically share the special rapporteur's view that the international organization should incur international responsibility for such an act. As decisions, recommendations and authorizations made by an international organization with a view to circumventing its international obligations produce widespread international repercussions, such acts of circumvention should be rendered wrongful by law. In the view of the special rapporteur, an international organization's recommendations and authorizations are different from its decisions because responsibility arises only when the former are implemented by member states. We believe that further study should be conducted to ascertain if such a distinction is justified. Although recommendations and authorizations are not as binding as decisions on member states, this distinction seems to make better sense when it is applied to determine the level of responsibility of member states.

Thirdly, on whether the draft articles should provide for responsibility of a state which aides or assists, directs and controls or coerces an international organization in the commission of an internationally wrongful act, we believe that a state incurs international responsibility for the above act. Since this issue is not covered in the Draft Articles on Responsibility of States for Internationally Wrongful Acts, it seems necessary to include such a provision under this topic.

Fourthly, on whether member states incur international responsibility for an internationally wrongful act committed by an international organization, we believe that as a rule, decisions and actions of an international organization are under the control of or rely on the support of member states. Therefore, member states that play an active role in the commission of an internationally wrongful act by an international organization, such as voting in favor of the decision in question and implementing the decision, recommendation or authorization in connection with the act, should incur corresponding international responsibility.

II. On Expulsion of Aliens

During its last session, the Commission considered the preliminary report submitted by the special rapporteur, Mr. Kamto, to whom we express our appreciation for his outstanding work.

We share the view of the special rapporteur that the focus of the study should be "how to reconcile the right to expel inherent in the sovereignty of states with the basic rules of international human rights law and humanitarian law". We have the following specific comments to make.

Firstly, on the methodology of the study, we agree that a comparative study should be conducted, as a priority, drawing on rules and practice of domestic law of all states, relevant rules of international law and jurisprudence of international and regional judicial bodies so as to produce a whole set of general and complete underlying rules of international law pertaining to expulsion of aliens. In this regard, we hope that the Commission will give equal attention to the developed and the developing countries when gathering information on their practice so that the results of its study will be representative of practice in a great variety of countries. It remains to be further considered whether its future work should be oriented toward a draft convention or non-binding guidelines.

Secondly, on the scope of the study, we consider refusal of entry a highly complex issue, which cannot be addressed with an across-the-board approach. When the person concerned is yet to enter the territory of the expelling state, it appears that the need for expulsion simply does not arise. In some other circumstances, however, when an alien who has established social and economic relations in his country of residence is refused entry upon his return to the country or when an immigrant who is on board a vessel or a plane under the control of the expelling state is refused entry, it should be considered within the purview of the concept of expulsion. In addition, account should also be taken of the treatment of persons who have applied for entry and are yet physically to enter the territory of the country in question.

In our view, expulsion of a population on a large scale as a result of a territorial dispute should not be covered under this topic because it will bring in sensitive political issues and does not lend itself to such treatment from the legal point of view.

With regard to collective expulsion, it is prohibited under international law, as reasons for such expulsion are in most cases discriminatory. In practice, however, whether expulsion of all persons on board the same vessel or vehicle as a group constitutes collective expulsion will depend on extremely complex elements that must be taken into account. For this reason, if collective expulsion is to be studied under this topic, it should not be approached without distinction.

Thirdly, on the right to expel and rights related to expulsion. We maintain that the right to expel is a right inherent in the sovereignty of states. It is an embodiment of the legitimate and effective control exercised by states over their territory and is indispensable for the maintenance of order in states. It is not only a right but also a duty of states. On the other hand, states should safeguard the basic human rights and dignity and ensure humanitarian treatment of the aliens expelled when exercising the right to expel.

This brings me to the end of my comments. Thank you, Mr. Chairman.

 

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