|Statement by Mr. GUAN Jian, Counsellor and Legal Adviser of the Chinese Mission to the United Nations, at the Sixth Committee of the 59th Session of the UN General Assembly, on Item 142: Convention on Jurisdictional Immunities of States and Their Property
New York, 25 October 2004
The Chinese Delegation is pleased to note that after more than a decade of consideration characterized by a spirit of cooperation and compromise, a consensus was finally reached last March at the Ad Hoc Committee on the Draft United Nations Convention on Jurisdictional Immunities of States and Their Property.
Long-standing differences on the issue of State immunities and conflicting national practices have adversely affected international exchanges. The formulation of an international legal instrument on State immunities is therefore highly significant for regulating State conduct, harmonizing and defining legal provisions on jurisdictional immunities of States, and will have a positive bearing on harmonious and stable international relations.
China has actively participated in the entire process of preparing the draft convention in the expectation that it will take into account the concerns of all parties as far as possible. Frankly speaking, the concluded Draft Convention is not as satisfactory and perfect as we expected. For example, in determining a “commercial transaction”, the provisions of the draft convention do not give as much weight to the purpose of the transaction as those adopted by the International Law Commission. To use the practice of the State of the forum to determine the relevance of “purpose” will cause inequity, that is, the immunities granted by the court of the State adopting the “purpose” criterion to the State adopting only the “nature” criterion shall be greater than the other way round. Of course, I fully understand the importance and complexity of the issue of jurisdictional immunities of States and their property, which has a bearing, after all, on vital national interests and domestic legal systems. It is only natural that States approach these negotiations from a diversity of perspectives. As a product of compromise, the draft convention finally concluded is a result of the best efforts of all parties. The Chinese Delegation supports the adoption of the Draft United Nations Convention on Jurisdictional Immunities of States and Their Property at this year's GA session.
Here the Chinese Delegation would like to reiterate its position on some of the issues related to the Draft Convention.
Regarding the status of the Understandings with respect to certain provisions of the Convention, it is true that, according to the provisions of the Draft Convention, the Understandings forms an integral part of the Convention, but as clearly stated in the chapeau of the Understandings, this annex only sets out understandings relating to the provisions concerned. The Understandings do not share equal legal status with the provisions of the Draft Convention.
Regarding immunities in criminal proceedings, there was a general understanding at the Ad Hoc Committee this year that a more appropriate placement for that issue was in a General Assembly resolution. The Chinese Delegation has no objection to that view. We believe that, while the provisions of the Draft Convention do not cover this matter, it is without prejudice to the immunities that States enjoy in criminal proceedings under customary international law.
The Chinese Delegation will continue to cooperate in a pragmatic and flexible manner with other countries in finding solutions to the problems relating to State immunities, with a view to facilitating stability in and development of international relations.
Thank you, Mr. Chairman.