CYIL vol. 11 (2020)

CYIL 11 (2020)

CHINA’S BROKEN PROMISES AND DIPLOMATIC GRANDSTANDING …

1. Introduction The 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (the Convention) builds on the experience of the 1972 European Convention on State Immunity (ECSI). 1 The Convention harmonizes the law on state immunity by embodying the theory of restrictive immunity – with respect to immunity from adjudication as well as immunity from execution. 2 Thus, the major objective and purpose was to move away from absolute immunity to restrictive immunity. In fact, the Convention was long in the making and was preceded by similar – but failed – efforts by the Institute de Droit International and the International Law Association. 3 It was eventually adopted thanks to many years of work in the International Law Commission (ILC), starting already in 1978. However, it has yet to enter into force since it requires thirty ratifications. That said, it counts the signature of states as diverge as China, India, Iran, Japan, Russia, Switzerland, and the United Kingdom. Moreover, both the International Court of Justice (ICJ) and various municipal courts have treated the Convention as constituting in part a codification of customary international law. 4 Thus, it is clear that the law is nowadays largely consolidated and that certain principles of the restrictive theory are crystalized in public international law. Despite this generally held view, China’s actions have not lived-up to its freely and voluntarily entertained commitment to endorse and embrace the restrictive theory on immunity. In the FG Hemisphere Associates LLC v. DRC 5 case from 2011 before Hong Kong Court of Final Appeal, China clearly expressed that it still practices and applies the theory of absolute immunity. This was done through the Ministry of Foreign Affairs sort of interfering in the procedure in Hong Kong on the basis of its “Basic Laws” and cemented with the declaration of the Standing Committee. 6 This case is only a means of demonstration as the Chinese absolutist position has now been rather entrenched. 1 STEWART, David P. ‘Introductory Note on the UN Convention on Jurisdictional Immunities of States and Their Property’ (2005) 44 ILM 801. 2 CRAWFORD, James, Brownlie’s Principles of Public International Law (8th ed., OUP 2012) 489. See also HOBÉR, Kaj, Selected Writings on Investment Treaty Arbitration (Lund: Studentlitteratur AB, 2013) 502 (“The importance of the Convention is that it clarifies the exceptions to [the general principle of immunity]. In particular, it generally embraces the restrictive theory of sovereign immunity”). 3 Several research institutions and conferences has been established to address and eventually redress the lack of uniformity by harmonizing the law, see e.g. the work of the Institute de Droit International (1888 and renewed attempts some 60 years later); the Harvard Research in International Law (1932); the International Law Association (1926 and renewed attempts some 50 years later), and eventually the International Law Commission whose work culminated in the UN Convention. 4 Jurisdictional Immunities of the State, Germany v. Italy: Greece Intervening , Judgment, 2012 I.C.J. 99, ¶ 117 and 118. See e.g. Japan Supreme Court in Saibansho Jihō, Case No. 1231, 21 July 2006 and Nytt Juridiskt Arkiv [NJA] [Supreme Court] Ö 170-10 (Sweden ) Sedelmayer v. The Russian Federation (2011), See also Crawford, (n 3) 490 (”Although not yet in force, the UN Convention has been understood by several courts to reflect an international consensus on state immunity.”). 5 FG Hemisphere Associates LLC v. DRC [2011] 14 H.K.C.F.A.R. 395. 6 SHAN, Wenhua and WANG, Peng, ‘Divergen Views on State Immunity in the International Community’, in RUYS, Tom, ANGELET, Nicolas, and FERRO, Luca (eds.), The Cambridge Handbook of Immunities and International Law (Cambridge: Cambridge University Press 2019) (quoting LI, F., ‘Explanation Note on Interpretation of the Standing Committee of the National People’s Congress on Paragraph 1, Article 13 and Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of

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