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Statement by Mr. DUAN Jielong, Director-General of Treaty and Law Department, Ministry of Foreign Affairs of China, at the Sixth Committee of the 62nd Session of the UN General Assembly, on Item 82 "Report of the International Law Commission"
(Reservations to Treaties, Shared Natural Resources, Obligation to Extradite or Prosecute)

2007/11/01

New York, 1 November 2007

Mr. Chairman,

The Chinese delegation wishes to thank the Chairman of the current session of the ILC, Mr. Ian Brownlie, for his introduction of the work of the Commission. We congratulate the ILC for the achievements of the current session under the leadership of Mr. Brownlie. Now I'd like to comment on three topics.

I. Reservations to Treaties

At its 59th session, the ILC considered the 11th and 12th reports submitted by the Special Rapporteur, Mr. Alain Pellet, and adopted at referendum nine draft guidelines on the prohibition of reservations and the related commentaries. We would like to express our appreciation to Mr. Alain Pellet for his outstanding work and to make the following comments.

First. The nine draft guidelines on the prohibition of reservations and the related commentaries

It is the view of the Chinese delegation that the guidelines on the prohibition of reservations should strike a reasonable balance between maintaining the freedom of States to make reservations to treaties and safeguarding the integrity and universality of treaties. They should also be in line with the relevant provisions of the 1969 and 1986 Vienna Conventions.

1. We are in favor of using the compatibility of a reservation with the object and purpose of the treaty as the basic criterion in deciding whether a reservation is valid (or allowed) as contained in the draft guidelines. We believe that draft guidelines 3.1.5 (incompatibility of a reservation with the object and purpose of the treaty) and 3.1.6 (determination of the object and purpose of the treaty) largely embody the relevant provisions of the 1969 and 1986 Vienna Conventions. However, we are of the view that in defining the object and purpose of a treaty, consideration should be given to specific situations of different types of treaties in addition to setting general criteria.

2. We believe that all treaties should follow the criterion of compatibility with the object and purpose of the treaty, whereas the approach taken by the draft guidelines of separating reservations to general human rights treaties (3.1.12) and reservations to treaty provisions concerning dispute settlement or the monitoring of the implementation of the treaty (3.1.13) adopts different criteria and will likely cause confusion. Therefore we suggest the deletion of these two provisions. If they are deemed really necessary, clarifications can be made in the commentary.

3. We do not deem it appropriate to make vague or general reservations (3.1.7), reservations contrary to a rule of jus cogens (3.1.9) and reservations to provisions relating to non-derogable rights (3.1.10) as independent guidelines. Generally speaking, reservations contrary to a rule of jus cogens go against the object and purpose of the treaty, so in principle, they can be used as evidence of incompatibility with the object and purpose of the treaty. Vague and general reservations and reservations to provisions relating non-derogable rights, on the other hand, do not necessarily contravene the object and purpose of the treaty and should be judged on a case-by-case basis. In principle, these two situations can serve as reference in deciding the incompatibility with the object and purpose of the treaty.

4. The draft guidelines permit reservations by States or international organizations to a treaty provision reflecting a customary norm (3.1.8) but stipulate that such reservations do not affect the binding nature of the customary norm. In our view, since the treaty reflecting customary norm belongs to one kind of treaty, criteria for reservations in its case should not deviate from the general guidelines on reservations to treaties, and reservations incompatible with the purpose of the treaty are equally not permitted. We suggest that the guidelines make provisions in this regard. At the same time, we understand that a reservation to a treaty reflecting customary norm does not affect the continued application of the said norm between the State or international organization that makes the reservation and States or international organizations that are not parties to the treaty concerned. However, the said norm will no long be applicable between the reserving State or international organization and other parties (including States and international organizations) to the treaty concerned.

5. We have noticed that the draft guidelines allow States or international organizations to, in accordance with their internal laws, make reservations that do not contravene the object and purpose of the treaty (3.1.11). We wish to stress that such reservations should not contravene relevant international obligations and must follow the provision of Art. 27 of the 1969 Vienna Convention that a State or international organization shall not invoke provisions of internal laws as the reason for non-implementation of the treaty.

Second. Draft Guidelines proposed in the 11th Report

Draft guidelines contained in the 11th report of the Special Rapporteur are of importance reference value to the practice of reservations to treaties. I wish to make some preliminary comments in this regard.

Draft guideline 2.6.3 provides for the freedom of any State or international organization to formulate an objection to a reservation for any reason whatsoever. In our view, the act of making objection to a reservation is also an act of treaty-making, so it should follow the general legal rules for treaty-making, including the substantive and procedural elements of general international law and the Vienna Convention on the Law of Treaties. Therefore, we suggest that "whatsoever" in the guideline be changed to "within the limits of this guideline and rules of international law".

II. Shared Natural Resources

The ILC considered at its 59th session the fourth report submitted by the Special Rapporteur on this topic. We appreciate the outstanding work of the Special Rapporteur Mr. Chusei Yamada and I would like to comment briefly on two issues.

First. Draft articles on the law of transboundary aquifers

During the last year's discussion of our committee on this item, my delegation made detailed comments on the 19 draft articles on the law of transboundary aquifers and their commentaries adopted at first reading by the 58th session of the ILC. Our position remains unchanged.

Regarding the final form of the result of work on this topic, my delegation suggests a set of principles or a declaration that is not legally binding. We do not think that conditions are ripe as of now for the formulation of an international treaty.

Second. Whether the Commission should study the question of transboundary oil and gas resources

In our view, legal rules governing the development and utilization of transboundary oil and gas involve the permanent sovereignty of States over their natural resources and complex legal and technical questions. Currently, great divergence of views still exists among States as to whether the Commission should start studying this issue, so we suggest that the Commission further seek the views of member States before making a decision in this regard.

III. The Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare)

At the 59th session, the ILC considered the second report of the Special Rapporteur on the topic of the obligation to extradite or prosecute (aut dedere aut judicare), including one draft article. We wish to express appreciation to the Special Rapporteur Mr. Galicki for his outstanding work. Now I'd like to comment on a few questions.

First, I believe that the application of the obligation to extradite or prosecute should not compromise the judicial jurisdiction of States, nor should it affect the immunity of State officials from criminal judicial jurisdiction.

Second, on the scope of application of the obligation to extradite or prosecute, draft article one stipulates that the present draft articles shall apply to the establishment, content, operation and effects of the alternative obligation of States to extradite or prosecute persons under their jurisdiction. The Chinese delegation supports in principle the alternative nature of the obligation to extradite or prosecute as contained in the draft article, namely, States have the alternative to extradite or prosecute. As for the so-called third alternative related to the jurisdiction of other international judicial organs, we take a cautious approach, but we believe that it is necessary to set necessary limits to the alternative obligations of States. We suggest that the draft articles stipulate that in opting for extradition or prosecution, States should abide by the relevant rules on jurisdiction priorities. For example, it is necessary to ensure the priority of the State where the crime occurred and the State of nationality of the suspect in exercising jurisdiction.

We also suggest a clarification of the meaning of "jurisdiction" in draft article one concerning the State obligation to extradite or prosecute persons under their jurisdiction. It is our understanding that the above jurisdiction refers to territorial jurisdiction or actual control of a State and does not include extraterritorial jurisdiction of a State over individuals outside its territories on the basis of the principles of personal jurisdiction, protective jurisdiction or universal jurisdiction, because the obligation to extradite or prosecute is based on the actual jurisdiction or control of the State over an individual. In light of this, we suggest that the wording "under their jurisdiction" in draft article one be changed to "on their territories or under their actual jurisdiction or control", or that corresponding explanation be made in the commentary.

Third, on the nature of the obligation to extradite or prosecute, my delegation believes that the obligation to extradite or prosecute is basically a treaty obligation and States undertake this obligation mainly on the basis of treaty provisions. However, if the crime to which the obligation to extradite or prosecute is applied is a crime under the customary law universally acknowledged by the international community, the obligation to extradite or prosecute may also become an obligation under international customary law.

Fourth, on crimes covered by the obligation to extradite or prosecute, in the view of my delegation, they should primarily include international crimes and transnational crimes endangering the common interest of the international community as confirmed by the international law, and serious crimes endangering national and public interest as stipulated by domestic law. Making a non-exhaustive list of crimes in the draft articles can be an option.

Fifth, my delegation believes that the core issue of this topic is the conditions for the extradition and prosecution obligations of States. We suggest that the Commission study the applicability of the conditions for the prohibition of extradition contained in the extradition rules of various States and the conditions for prosecution provided for in the criminal procedural laws of States. Then the Commission can see if it is necessary to establish a set of common criteria for extradition and prosecution. The relations between this obligation and other rules of international law, including universal jurisdiction, can also be further studied.

Thank you, Mr. Chairman.

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