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Statement by Mr. XU Hong, Representative of China and Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs of China, at the Sixth Committee of the 73rd Session of the UN General Assembly on Agenda Item 82: Report of the International Law Commission on the work of its 70th session Cluster II: Chapters VI, VII and VIII & Cluster III: Chapters IX, X and XI

2018-10-26 01:46

Mr. Chairperson,

First of all, I would like to draw the Committee's attention to the fact that in the intervention made yesterday, the representative of an observer made several references to the so-called “Award” of the South China Sea Arbitration. China would like to register its firm objection to this.

In relation to the so-called South China Sea Arbitration, the Arbitral Tribunal manifestly has no jurisdiction. The “Award” made ultra vires is obviously in error in the ascertainment of facts and application of law. The said “Award” has no legality whatsoever and constitutes a reckless disruption of rule of law at the international level. Obviously it is highly inappropriate to cite such an unjust, unlawful and invalid “Award” in the serious discussions at this Committee.

Mr. Chairperson,

On the topic “Protection of the atmosphere”, the Chinese delegation noted that a draft preamble and 12 draft guidelines, together with commentaries thereto, had been adopted on first reading. Protecting the atmosphere, as a current and common issue faced by humankind, involves political, legal and scientific aspects and therefore, is highly complex and sensitive. China wishes to remind the Commission once again, that, in its study of the topic, it is necessary to follow the four-point Understanding reached in 2013, use general international practice and existing law as basis, and fully respect the efforts of the international community under existing mechanisms and the outcomes of relevant political and legal negotiation processes. China supports the reaffirmation in the present draft guidelines of such basic principles of international law as those on international cooperation and the peaceful settlement of disputes. However, we beg to differ on the specific provisions proposed in the draft guidelines. For example, as regards draft guideline 3, China believes that to date, no clear and specific rules of international law have emerged in the field of the Protection of the atmosphere. In particular, explicit legal obligations placed on States to protect the atmosphere have yet to materialize, and the relevant practice and rules are still being developed. Draft guideline 4 copied the rule cited in certain treaties and cases regarding environmental impact assessment required for activities that may have significant transboundary impact, and directly applied it to the protection of the atmosphere. However, this rule has its specific context and scope of application in the relevant treaties and cases and therefore, one can hardly claim that it has become a universally agreed principle of international law for the protection of the atmosphere. Paragraph 3 of draft guideline 9, regarding special national circumstances, brought the concept of countries in special situations as defined in the context of climate change into the discourse on the protection of the atmosphere. We don’t see sufficient justification for doing so.

Mr. Chairperson,

With regard to the topic “Provisional application of treaties”, the Chinese delegation noted that the Commission had adopted on first reading a set of 12 draft guidelines, with commentaries thereto. We are of the view that the scope of legally binding obligations on the parties concerned created by the provisional application should be defined cautiously, with due respect for the genuine intentions of those parties. The conditions and procedures of the provisional application agreed upon by the parties should be interpreted rigorously, to avoid undue expansion of the scope of obligations placed upon the parties. China suggests that the relevant commentaries clarify this matter. Regarding draft guideline 7 “Reservations” and draft guideline 9 “Termination and suspension of provisional application”, it seems no State would need such provisions in reality, therefore, we suggest that the Commission consider the practical value of drafting these two guidelines.

Mr. Chairperson,

With regard to the topic “Peremptory norms of general international law (jus cogens)”, the Chinese delegation is of the view that given the unique importance of jus cogens as it is different from the norms of general international law, the Commission should be extremely cautious in its consideration of this topic. The determination of the elements, criteria and consequences of jus cogens must be based on the relevant provisions of the Vienna Convention on the Law of Treaties, and be supported by adequate practice at the State level. The focus should be on codifying lex lata rather than developing new laws. Regarding the draft conclusions proposed by the Special Rapporteur in his third report, China would like to emphasize the following two points:

First, draft conclusion 17 states that binding resolutions of the Security Council of the United Nations do not establish binding obligations if they conflict with jus cogens. China does not agree with this conclusion. We have noted that the Commission has not fully discussed this yet, and therefore, will follow closely its future discussions. The Security Council is at the center of the UN collective security system established after World War II. The resolutions of the Security Council are adopted in accordance with the provisions of the UN Charter and must follow strict procedural requirements and stay in line with the purposes and principles of the UN Charter. When the content and scope of jus cogens are still far from clear, attempts to invoke jus cogens to judge the validity of the Security Council resolutions will very likely result in situations where jus cogens is used as an excuse to evade the implementation of Security Council resolutions or as a challenge to the authority of Security Council resolutions, thus undermining the UN collective security system. Therefore, China proposes that the draft conclusions on the topic refrain from delving into this issue.

Second, regarding the categorization in draft conclusion 23 of “any offence prohibited by a peremptory norm of general international law (jus cogens)” as the kind to which immunity ratione materiae shall not apply, in the absence of any clarity on either the content and scope of jus cogens itself or the concept of “any offence prohibited by jus cogens”, this provision was very controversial within the Commission. In view of this,