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Statement by H.E. Ambassador Liu Zhenmin, Deputy Permanent Representative of China to the UN, 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 Three
2008-11-03

2008/11/03

New York, 03 November 2008

Mr. Chairman,

The Chinese delegation wishes to take this opportunity to comment on Protection of Persons in the Event of Disasters and Immunity of State Officials from Foreign Criminal Jurisdiction, two topics considered by the Commission during its 60th session.

I. I will start with the topic of Protection of Persons in the Event of Disasters.

In recent years, frequent occurrence of major natural disasters such as hurricanes, tsunamis and earthquakes has caused huge devastation to countries hit by the disasters and their people. Constrained by their limited relief capacity, many countries, especially the developing countries are unable to effectively respond to disasters and provide timely and adequate relief to the affected population solely by themselves. They need a helping hand from the international community. How to better enhance and coordinate international relief and help countries better respond to natural disasters has become an issue of global bearing.

The massive earthquake that hit Wenchuan, Sichuan Province of China on May 12th this year resulted in extensive human and material loss. With a high sense of responsibility, the Chinese government made tremendous efforts in responding to this catastrophe. Acting timely and effectively, the government mobilized resources across the board from sectors such as the military, local governments, civil affairs agencies, the Red Cross, NGOs and volunteers. At the same time, timely support from the international community has been of enormous help. The Chinese government and people express their heart-felt gratitude for this help. Based on our own experience, we believe that consideration of this topic is highly relevant.

The Chinese delegation has noted that Mr. Valencia-Ospina, Special Rapporteur on this topic, presented his initial report to the 60th session of the Commission. We commend the Special Rapporteur for his work on this topic. We are also grateful to the Secretary-General for his report on this topic. Here I'd like to make the following comments.

First, the scope of this topic. The Chinese delegation understands that in some cases, it is impossible to draw a clear distinction between natural and man-made disasters. Some natural disasters may have happened as a result of human activities. However, in our view, when it comes to human activities, especially those already governed by the rules of international law, it is not necessary for the Commission to re-visit the issue. Given that natural disasters often strike suddenly and unexpectedly, that disaster response is a matter of great urgency, and that disaster preparedness, disaster response and post-disaster reconstruction have distinct characteristics, we believe the Commission should focus its attention on natural disasters, and give priority consideration to disaster response.

Second, the approach taken on this topic. The Chinese delegation has doubts as to whether the individual right-based approach is feasible. Disaster relief is first and foremost a state responsibility and obligation and as such is covered by domestic laws in many countries. We believe that the most effective way to realize rights of individuals is through enhancing and coordinating inter-state co-operations, which should be the subject to be considered under international law. On the other hand, the concept of victims' "right to assistance" or any similar concept is absent from international law. The ambiguity of this concept lies in its lack of clarity with regard to the range of rights it entails, the conditions necessary for the achievement of those rights and who is responsible for securing those rights. The Chinese delegation is of the view that protection of persons in the event of disasters should, in the final analysis, be achieved through efforts of the country hit by the disaster and through international cooperation. Therefore, to study this topic from the angle of cooperation and to bring clarity to the legal issues involved in international cooperation in disaster relief will help achieve the goal of protecting persons in the event in disaster.

Third, the Chinese delegation believes that the primary responsibility of disaster response and victim protection should be borne by the country hit by the disaster. The international community must respect and abide by the principles of Sovereignty of States and Non-interference in Internal Affairs in its relief operations. Its implications are as follows, firstly, the affected country has the right to coordinate its domestic relief activities. It has the right to decide, based on its own relief capacity, whether to invite other countries to join in its domestic relief operation and whether to accept outside assistance. Secondly, the international community should obtain consent from the country it intends to help before delivering any assistance. Only the country hit by the disaster has the ability to fully mobilize and effectively coordinate activities so as to make relief efforts more efficient. Thirdly, the modality of international assistance can be worked out between the recipient country and the parties providing assistance. The affected country may make requests to assisting parties. However, whether those requests can be met is a matter subject to the abilities of assisting parties. Fourthly, international assistance should be based solely on humanitarian considerations and should not come with inappropriate political or other conditions attached.

Fourth, the relevance of the concept of "responsibility to protect". In the view of the Chinese delegation, "responsibility to protect" is a new concept. There are still controversies as to its connotation and applicability, resulting in great uncertainty over this concept. To introduce this concept into the area of disaster relief will not be helpful to achieving international consensus on this concept; rather, it will only lead to further confusion.

II. Now I turn to the topic of Immunity of State Officials from Foreign Criminal Jurisdiction

In recent years, it has happened from time to time that a State decided to exercise criminal jurisdiction over foreign State officials who enjoy immunity from such jurisdiction. Such actions often led to tension in relations between the states concerned. In order to maintain international legal order and stability of inter-state relations, it is indeed necessary for the Commission to pay close attention to the topic of immunity of State officials from foreign criminal jurisdiction and further clarify the rules of international law in this area.

The Chinese delegation wishes to thank the Secretariat for the detailed memorandum submitted on this topic. We have also noted that Mr. Roman Kolodkin, Special Rapporteur on this topic, submitted his initial report to the 60th session of the Commission. This report contains a complete and detailed elaboration of important concepts and issues involved in this topic. As such, it provides a sound basis for further consideration of this topic by the Commission. We highly appreciate the outstanding work of the Special Rapporteur and would like to take this opportunity to make the following comments.

First, regarding the source of immunity of State officials from foreign criminal jurisdiction. The Chinese delegation is of the view that state practice and judicial decisions over a long period of time have proven that immunity of State officials from foreign criminal jurisdiction is a widely accepted rule of international law. We share the view expressed by the Special Rapporteur that the basis for such immunity is to be found in international law, especially customary international law. It is not based on domestic law or international comity. The 2002 ICJ judgment on the Arrest Warrant case reflects the current state of customary international law.

Second, on the rationale of the immunity. The Special Rapporteur offered a rationale based on a combination of two theories, i.e. "representative" and "functional necessity". We agree with him on this point. Granting immunity to foreign State officials from domestic criminal jurisdiction is both a demonstration of the principle of sovereign equality and a necessity in that it facilitates the discharge of official functions. It is of great benefit to maintaining stable and friendly relations among states.

Third, on the scope of persons covered under the topic. We agree with the Special Rapporteur that this topic should cover all State officials. We also believe that Heads of State, Heads of Government and ministers of foreign affairs and other persons of the same ranking should enjoy immunity ratione personae regardless of whether they are on official duty or not. This is a well-established rule under international law. The question as to whether such immunity should extend to other officials is a matter that needs to be further studied in the Commission. Here the Chinese delegation would like to suggest that the Commission devote its attention to establishing relevant criteria in this area so as to provide a useful reference for State practice.

Fourth, with regard to when immunity takes effect, the Special Rapporteur said in his report that the immunity is effective throughout the process of criminal jurisdiction. Criminal jurisdiction, being different from civil or administrative jurisdiction, is already in place at the stage of investigation well before court trials. Therefore, when we talk about immunity of State officials from foreign criminal jurisdiction, it is very important to stress the immunity during the stage of criminal investigation which precedes the trial phase. The Chinese delegation fully agrees with the opinion voiced by the Special Rapporteur in this regard that legal disputes arising from the investigation phase bring much uncertainty to normal inter-state relations as well.

Fifth, effect of state and government recognition on immunity. The Chinese delegation believes that while recognition and immunity are two connected issues under international law, they belong to two different categories. The effect of recognition or non-recognition will affect the legal status of foreign State officials in criminal proceedings. However, we believe that it is not desirable to provide specific provisions for this issue within the framework of the current topic. The "without prejudice" clause formulated by the Special Rapporteur offers enough clarity as to the relationship between the two issues under this topic.

Sixth, possible exceptions to immunity. The Chinese delegation believes that as proved by state practice over the last decade, it is necessary for the Commission to adopt a cautious approach on this issue as exceptions, when inappropriately introduced, will fundamentally negate the legitimacy of the principle of immunity. In our view, the Commission, in its study on this subject, needs to pay attention to the following: first, immunity from foreign State criminal jurisdiction and criminal jurisdiction of international judicial institutions are two distinct legal issues. It is unacceptable to link granting immunity to State officials from foreign criminal jurisdiction to the jurisdiction of the International Criminal Court. In addition, no jurisprudence can be found in favor of such a linkage. In our view, such a linkage constitutes a distorted interpretation of the principle of complementarity inherent in international judicial institutions. Secondly, the fact that one State establishes jurisdiction over certain crimes under international law doesn't imply that foreign State officials automatically lose their immunity in relation to such crimes in the domestic court of the said State. Thirdly, exceptions to immunity of State officials from foreign criminal jurisdiction have the potential to be abused and misused as a tool for politically motivated prosecution. And in such an event, it will not only lose its usefulness in fighting crimes and protecting human rights, but also have a serious impact on stable relations among states.

The Chinese delegation hopes that its views on these two topics could be carefully considered by the Commission and the Special Rapporteur.

Thank you, Mr. Chairman.

 

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