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I. China and the Sixth Committee of the UN General Assembly
2004/04/19

From September 25 to November 22, 2000, the Sixth Committee of the 55th UN General Assembly (also known as "the Legal Committee", hereinafter as "the Sixth Committee") held its session at the UN Headquarters in New York. It reviewed a total of 15 items, among which the major ones are as follows:

1. The Work Report of the 33rd Session of the UN Commission on International Trade Law ;

2. The Report of the Special Commission on the Charter of the United Nations and on Strengthening the Role of the Organization;

3. The Work Report of the 52nd Session of the UN Commission on International Law;

The Establishment of the International Criminal Court;

4. The Convention on the Jurisdictional Immunity of the State and its Property;

5. Measures to Eliminate International Terrorism;

6. Gradual Development of Principles and Criteria of the International Law for the International Economic New Order.

The Chinese Delegation actively participated in the deliberations of the aforesaid items and the reviewing went as follows:

(A) The Work Report of the 33rd Session of the U.N.Commission on International Trade Law (UNCITRAL)

The Chinese Delegation stated that the UNCITRAL continuously moved ahead in its work and that especially more new states as participating states in the series of conventions formulated by the UNCITRAL and the extensive adoption by many states of the series of conventions and model rules, the formulation of which had been chaired by the UNCITRAL, have immensely pushed forward the development of international trade. In order to more effectively unfold its work, the UNCITRAL should arrange session agenda more rationally and work to intensify its assistance to the member states, especially the developing states and the training of their personnel.

(B) The Report of the Special Commission on the Charter of the United Nations and Strengthening the Role of the Organization

The Chinese Delegation actively participated in the deliberation of this item. With regard to the issue of reviewing the revised working paper entitled "On the Basic Conditions for the Introduction of Sanctions and Other Coercive Measures and Their Application" submitted by the Russian Delegation, the Chinese Delegation expressed its appreciation of the method of paragraph-by-paragraph examination and deliberation.

On the question of working out a set of guidelines for action for the UN peacekeeping operations, the Chinese Delegation affirmed the basic concept of the working paper entitled "Basic Elements of the Legal Basis Within Chapter VI of the UN Charter for UN Peacekeeping Operations" submitted by the Russian Delegation and held that the Sixth Committee and the Special Commission on the Charter should have been able to play a more important role in a more extensive area including this item.

On the question of assisting the affected third states due to the application of sanctions, the Chinese Delegation supported the reasonable positions of the numerous developing countries on this question and held that the world community should fully understand the reasonable demands of the affected third states and render them practical support. The Chinese Delegation held that the suggestions and research findings of the ad hoc group of experts should be taken as reference and formulate as soon as possible a set of methods for appraising the consequences caused to the third states due to preventive measures and the application of measures and positively explore feasible measures for rendering the third states international assistance.

On the question of the status quo and future of the Trusteeship Council, the Chinese Delegation felt that for the time being there was no need to abolish or change its function as this would inevitably entail the revision of the Charter. It had to be dealt with appropriately in the overall framework of the reform of the United Nations.

(C) The Work Report of the 52nd Session of the UN International Law Commission (ILC)

The report of the ILC touched upon several items. The Chinese Delegation spoke on "state responsibility" and "diplomatic protection".

On "state responsibility", the revised version substituted "grave international illegal act" for "international crime". The Chinese Delegation expressed its appreciation of this effort but felt that there still existed some basic problems, e.g. "grave international illegal act" lacked a clear-cut definition. "counter measure" was one of the focuses of argument in the second reading version. The Chinese Delegation felt that an appropriate balance should be maintained between the legality of the recognition of counter measure and the prevention of its abuse. In the text on counter measure, there were points which still needed to be further improved and made perfect, particularly the newly-added stipulation of "collective counter measure" still needed to be weighed. The "collective counter measure" infringed on the principle that counter measure should be and could only be taken by the victim state of an international illegal act. What was more serious was that the "collective counter measure" may serve as a new excuse for practicing power politics in international relations. In view of the relevant provisions of the Charter, the Chinese Delegation proposed that the ILC undertook in-depth study on this question and dealt with it prudently.

On "diplomatic protection", the Chinese Delegation felt that formulating a legal rule for "diplomatic protection" was of important theoretical and practical significance. A necessary condition for a state to exercise diplomatic protection is that the protecting state must be able to prove that the individual to be protected is a national of that state, but its application is made complicated by the existence of dual or multiple nationality.

(D) The Establishment of an International Criminal Court

This year the Preparatory Committee of the International Criminal Court completed the drafting of two important documents "The Elements of Crimes" and "The Rules of Procedure and Evidence" and would go on drafting "The Agreement on the Relations between the Criminal Court and the United Nations" and "the Financial Ordinance of the Court and the Detailed Rules and Regulations" and other documents. Simultaneously the "Crime of Aggression" Working Group would continue its discussion of the definition of aggression.

On "the Elements of Crimes", the Chinese Delegation expressed its concern and reservation over some of the crime elements of the crime against humanity , but accepted the formula of reaching consensus through consultation. At the same time, the Chinese Delegation stressed that the contents of this document must be strictly interpreted in accordance with the letter and spirit of the Statute.

On "the Rules of Procedure and Evidence", the Chinese Delegation held that based on the Statute, the paper laid down more detailed stipulations on the operational procedure of the court but it had some reservations over the right of discretion given to the court over some issues . The Chinese Delegation stated that in accordance with the provisions of the Statute, "The Rules of Procedure and Evidence" should be consistent with the Statute and when they came into conflict, the Statute should take precedence.

(E) The Convention on Jurisdictional Immunity of the State and its Property

This year the Sixth Committee of the General Assembly continued to review this item in the form of a working group. The states reached initial agreement on 2 issues, "the Definition of the State" and " Employment Contract Litigation between the State and the Individual".

At present, on the issue of state immunity, 3 questions remain unresolved: "Standard of judgement for state commercial transactions", "Relations between the state and state-owned enterprises" and "Mandatory measures against state property". On "Standard of judgement for state commercial transactions", the Chinese Delegation felt that the nature of trade should be considered first and the objective of trade should be used as an auxiliary means for judgement so as to avoid and resolve the legal conflict due to the different legal systems of the states. On "Relations between the state and the state-owned enterprises", the Chinese Delegation held that the existence of state-owned enterprises was not an unique phenomenon in an individual state and the capital composition of the state-owned enterprises was varied. The Chinese enterprises were independent to one another, so were the state and the state-owned enterprises. On "Mandatory measures against state property", the Chinese Delegation held mandatory measures against state property was different from mandatory measures against general property, only after approval was given by the state concerned, could mandatory measures be taken against its property.

(F) Measures to Eliminate International Terrorism

The Chinese Delegation stated that since its inception, the Special Commission had achieved notable results in strengthening international anti-terrorist legal measures. Combating terrorism is a basic policy of the Chinese Government. China has acceded to all the international anti-terrorist conventions which came into effect. At present, the transnational feature of terrorist activities is daily becoming more obvious. This urgently calls for close cooperation of the various states, especially cooperation in formulating international treaties, intensifying domestic legislation, unfolding mutual judicial assistance and extradition, so as to effectively fight the variform terrorist activities. At the same time, the Chinese Government consistently holds that anti-terrorist international cooperation should observe the generally recognized norms of the international law including respect to state sovereignty, territorial integrity and non-interference in domestic affairs and should be favorable to safeguarding international and regional security and stability.

The Chinese Delegation pointed out that at present, China, Kazakhstan, Kirghizstan, Russia and Tadzhikistan were unfolding cooperation in effectively combating terrorism within the framework of "The Shanghai Five". The cooperative mechanism in this field would play a positive role in fighting international terrorist activities.

This year the Anti-terrorist Working Group had completed its preliminary review of the draft of The Comprehensive Convention on International Terrorism and made positive headway on several technical issues. At the same time, the comprehensive convention would touch upon some very sensitive and complicated political and legal issues. Their resolution hinged on necessary political will of the various states and needed the imagination and creativeness of the state parties in the negotiations to accommodate different interests and concerns.

On the draft of The International Convention on the Suppression of Nuclear Terrorist Acts on which the Anti-terrorist Special Commission almost reached agreement, the Chinese Delegation expressed its appreciation of the efforts made by the state parties for resolving the pending issues in the draft.

(G) The Gradual Development of Principles and Criteria of the International Law for the International Economic New Order

The Chinese Delegation pointed out that the development of modern science and technology and the economic globalization had not benefited the states universally and because of this, the developing states were bearing immense pressure and challenge. The international society should join hands in reforming the existing international economic new order and promoting common prosperity and development of the economy of the states. The Chinese Delegation felt that the discussion of this item was extremely beneficial.

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