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II. China and the UN Commission on International Law
2004/04/19

From May 1 to June 9 and from July 10 to August 18, 2000, the UN Commission on International Law held its 52nd session in Geneva. The session elected Chusei Yamada, the Japanese member as the Chairman of the Session. Prof. He Qizhi , the Chinese member attended the session.

The major agenda items of the session were: (1) The Article of State Responsibility; (2) Reservations to Treaties; (3) Unilateral Actions of the State; (4) International Responsibility for Injurious Consequences Caused by Actions not Prohibited by International Law; (5) Diplomatic Protection.

This session concentrated its efforts in reviewing the topic of state responsibility. Consensus was achieved on the part I of the draft of the article of state responsibility. The reviewing of the part III (Settlement of disputes) was temporarily shelved because whether it was necessary to keep the original part III hinged on whether the draft of this article took the form of a convention. This session primarily dealt with the part II (Contents of the international responsibility of a state), point 2 of the part II (Execution of state responsibility) and part IV (General regulations).

The focus of review was as follows: On the question of "compensation", the draft provided that compensation could take the form of restoration of the status quo ante, compensation or satisfaction separately or jointly. The formulation of this part of the article was considered based on the theory on compensation and practice of the international law. The members did not have much contention over this. On "counter measures", it led to opposition by a considerable number of the members. At this session, some members reiterated their opposition. They held that this might reduce the acceptability of the draft of the article. Some small and weak states were worried that this might lead to the abuse of counter measures by powerful states. Some members held that the linkage between the counter measure and the settlement of disputes, which passed the first reading, should be restored. However, many members including the special reporter held that it was impossible to find autonomic linkage between the taking of counter measures and the settlement of disputes; counter measure was a fact of objective existence and certain criterion was better than non. Part IV (General regulations) contained 4 articles, over which the members did not have serious divergent views. The commission hoped to hear comments and opinions from the governments of the states so as to complete the second reading in 2001.

On the special topic of "Diplomatic Protection", the commission reviewed the first report submitted by the special reporter. The report dealt with the definition and scope of the special topic, the nature of applying diplomatic protection and different situations. The members endorsed the view expressed by the special reporter that so long as the state still held the balance in state relations, diplomatic protection remained the most important method of remedy in protecting the rights of its nationals. The debate showed diplomatic protection did not include the use of armed force. Therefore, it negated the whole stipulation on the use of armed force under certain circumstances contained in the second item of the report.

Besides, the commission devoted some time to reviewing the third report of the special reporter of the special topic of "Unilateral Actions of the State" and the fifth report of the special reporter of the special topic of "Reservations to Treaties". The working group of the commission reviewed the topic of "International Responsibility of the Injurious consequences Caused by Actions not Prohibited by the International Law(Prevention of Transboundary Injuries Caused by Dangerous Activities)". Due to time constraint, the members did not discuss the topic in depth.

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