New York, 29 October 2009

Mr. Chairman,

Today, the Chinese Delegation would like to comment on the topics of “protection of persons in the event of disasters” in the report of the International Law Commission.

Mr. Chairman,

Since the beginning of this year, people of different countries have been ravaged by the frequent occurrence of natural disasters such as earthquakes, hurricanes and floods. How to promote and coordinate international efforts for disaster relief within the framework of international law has become a common challenge facing the entire international community. The work carried out by the International Law Commission under the topic of “protection of persons in the event of disasters” is of positive significance as it helps to clarify rules of international law applicable to disaster relief and provides legal guidance to international cooperation in this field.

At its 61st session, the ILC considered the second report submitted under this topic by Special Rapporteur Mr. Valencia-Ospina and draft articles 1 to 5 provisionally adopted by the Drafting Committee. We express our appreciation to the Committee and the Special Rapporteur for their work and wish to make the following comments:

I. Approach to the topic

We continue to have doubts about the viability of a “rights-based” or “needs-based” approach. First of all, the very concept of “rights” or “needs” on which this approach is based is very ambiguous. There is no clear definition on the elements that are included in these concepts. Secondly, this approach fails to strike a balance between rights and needs and overlooks the need to address individual interests, collective interests and interests of public order in an integrated manner. Thirdly, this approach implies that individuals are in a position to appeal for international relief in the event of disasters. It not only lacks legal foundations in international law but also may contravene the principles of sovereignty and non interference in internal affairs.

II. Scope of the topic

We believe that, in terms of ratione materiae, the main focus of study under this topic should be the relationship of rights and obligations between states; in terms of ratione personae, the main subject of study under the topic should be states; in terms of ratione temporis, study under the topic can start with response to disasters that have occurred and post disaster reconstruction, leaving decisions on whether to include pre-disaster prevention to a later stage. Furthermore, we endorse the Special Rapporteur’s conclusion that the concept of “responsibility to protect” does not apply to disaster relief.

With regard to the definition of disasters, we believe that as some natural disasters are the results of human activities, it is too difficult to draw a strict distinction between natural disaster and man-made disaster；moreover, this topic should focus on the protection of persons in the event of disasters, not the disasters themselves, thus, it is also not necessary to draw that strict distinction. However, the Commission, in its study of relevant questions, should take into full consideration the differences between disasters of various types and focus mainly on those natural disasters that strike without warning and cause serious damages. The standard of “exceeding the local capacity and resources for disaster relief” may be included in the formulation of specific criteria with a view to ensuring that the definition of disasters can apply with flexibility to States with varying capacities for disaster relief.

III. Duty to cooperate

We believe that while “solidarity and cooperation” can be included as moral values, the draft articles should establish before anything else the legal principles of humanity, equity, neutrality, nondiscrimination, sovereignty and noninterference in internal affairs. Meanwhile, duty to cooperate should be framed in such a way as to avoid the interpretation that states affected by disasters are obligated to accept international relief or states providing relief are obligated to satisfy the requests of affected states.

We have always maintained that, in international cooperation for disaster relief, affected states bear the primary responsibility to protect persons under their jurisdiction. International relief should be provided with the consent of the affected states and should be subjected to their overall organization and coordination. The modality and organization of international relief may be determined through consultations between the affected states and the parties providing relief. Whether the requests of the affected states can be satisfied will also depend on the capacity of the parties providing relief.

In any case, international relief should only be provided for humanitarian purposes and no political or other strings should be attached. We suggest that the Commission give clearer expression to the above elements in the draft articles.

Mr. Chairman,

Nowadays, all States attach great importance to the issue of protection of persons in the event of natural disasters. Natural disasters are not limited by boundaries of countries. However, the levels of development of developing countries and developed countries are varied, so are their capacities to respond to natural disasters. These differences will surely influence the efficiency of protection of persons in the event of natural disasters. We hope the Commission could take this into its consideration of the topic.

Thank you, Mr. Chairman.