|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 Two|
New York, 29 October 2008
The Chinese delegation would like to comment on the topics of reservations to treaties and responsibility of international organizations.
I. On the topic of “reservations to treaties”
The ILC, at its 60th session, adopted provisionally a few of draft guidelines as well as their commentaries, such as “procedures for the communication of reservations”, “formulation of objections”, “withdrawal and modification of objections to reservations” and “acceptance of reservations”, etc. It also considered the 13th report by Special Rapporteur Mr. Allan Pellet. We express our appreciation for the work of the Commission and the Special Rapporteur, and would like to make some brief observations.
1. On draft guideline 2.6.5 “Author”. This guideline states that objections to a reservation may be made by two categories of entities. One is the contracting state or contracting international organization; the other is the state or international organization that is entitled to become a party to the treaty. While this delegation has no objection to the former, it has some doubts concerning the right of the latter to formulate objections before it becomes an Contracting Party. Just as this draft guideline has stipulated, before a state or international organization expresses its consent to be bound by the treaty, such a declaration does not produce any legal effect. Therefore, we wonder if it is necessary for the draft guidelines to provide for an act that has no legal effect. What’s more, the recognition of the right of a state or international organization to, before it becomes a party to a treaty, object to a reservation entered by a contracting state would give rise to some legal issues, such as whether this state or international organization is obliged to notify the treaty depository of its objection in accordance with the treaty provisions, and whether the treaty depository is under the obligation to circulate such an objection to contracting parties.
2. With regard to the draft guidelines on interpretative declarations contained in the 13th report by the Special Rapporteur, my delegation is generally satisfied with it. However, paragraph 2 of 2.9.9 still has room for improvement. First, its relationship with 2.9.8 needs further clarification. 2.9.8. provides for the non-presumption of approval of or opposition to an interpretative declaration, yet 2.9.9 obviously has the effect of making presumptions about an interpretative declaration. Second, is there any basis in State practice on which we can presume silence to be acquiescence? If yes, under what circumstances can we deem it appropriate to make such a presumption, and what factors should be taken into account? All these need to be further specified.
II. On the topic of “responsibility of international organizations”
At its 60th session, the ILC considered the 6th report by Mr. Gaja, the Special Rapporteur for this topic, and provisionally adopted 8 draft articles on the invocation of the responsibility of international organizations, thus completing most of the work on this topic. We congratulate the Commission on the results it has achieved and pay tribute to Mr. Gaja for his work. I’d like to make the following brief comments.
1. The 8 draft articles adopted at this year’s session of the Commission basically followed by analogy the wording of corresponding provisions on state responsibility, supplemented with the views and practices of few international organizations such as the EU as evidence. This approach has its merits in that, generally speaking, some rules applicable to one situation can be applied to another similar one mutatis mutandis. Numerous similarities between state responsibility and responsibility of international organizations provide the basis for such an approach. However, it should be noted that extension by analogy could not be applied in any circumstances. My delegation believes that only the established rules governing state responsibility can be applied to the responsibility of international organizations under similar circumstances. As for those rules in the draft articles on state responsibility that are controversial and are not supported by international practice, it’s not appropriate to extend them by analogy to the responsibility of international organizations. What’s more, the question of responsibility of states and other subjects of international law is related to the implementation of international law, and as such, might prejudice the right of the subjects of international law. In view of this, we believe that the Commission should be more cautious in resorting to extension by analogy to the draft articles on state responsibility.
2. On the question of how to invoke responsibility when there is plurality of responsible states and international organizations, paragraph 2 of article 51 provides for the order of invocation between the “primary responsibility” of the responsible international organization, and the “subsidiary responsibility” of the members of the said organization by an injured state or international organization. My delegation doesn’t believe such an order of invocation is appropriate for a general rule. At least, in all cases covered by articles 25 to 28, an injured state or international organization should have the right to decide on its own the order in invoking the responsibility of the responsible state or international organization.
3. On article 52 concerning the issue of invoking responsibility by states or international organizations other than the injured states or organizations, my delegation believes that this article is pertinent to the question of countermeasures. If these 3rd states and international organizations have the right to invoke responsibility, it would entail the question of whether they have also the right to take countermeasures. Therefore, this article should be considered together with the part of the draft articles on countermeasures which was considered but not yet adopted by the Commission. In our view, there hasn’t been any established practice concerning invocation of responsibility of international organizations by a 3rd state or international organization, and there is a great deal of controversies surrounding the taking of such an approach even in the draft articles on state responsibility.
4. On the question of countermeasures by international organizations, the Commission is divided on whether an international organization is entitled to take or could be imposed on countermeasures, and whether the draft articles should contain provisions for countermeasures at all. This delegation is of the view that providing for countermeasures in the responsibility of international organizations is problematic. International organizations are different from states. One important difference is that international organizations symbolize the centralization of international community, and represent a certain degree of convergence of states as independent subjects in a decentralized world; whereas countermeasures are mainly meant for an unorganized and loosely-connected international community. To introduce the concept of countermeasures into the regime governing the responsibility of international organizations goes against the function preformed by international organizations of organizing the international community. In view of this, my delegation believes that the Commission should be extremely cautious in introducing countermeasures.
Thank you, Mr. Chairman.