YLLI DAUTAJ CYIL 11 (2020) China’s absolutist position is not only a surprise and regret, but also a breach of public international law. 7 First, China has an interim obligation pursuant to Article 18 of the Vienna Convention of the Law of Treaties to refrain from acts which would defeat the object and purpose of a treaty it has signed. Second, in 2011 the ICJ held categorically and unequivocally that parts of the Convention constitute customary international law. 8 Finally, for those who care, prior to its showcasing of absolutism, China had by its diplomatic channels indeed acted in a way that would create legal obligations vis-á-vis the unratified convention. 9 If China’s attitude towards legal commitments are not implemented in good faith, China could eventually be considered an unreliable partner going forward. This paper makes the point that it is the deeds and not the words that is the ultimate judge of compliance and sincerity. 2. The 2004 UN Convention on State Immunity (the Convention) Despite the fact that state immunity is one of the most traditional topics of public international law, it surprisingly still remains an issue. 10 To a large extent this is because there is an absence of a multilateral instrument setting out the rules of state immunity. 11 Diversity in state practice is apparent and “[o]ne way to overcome this diversity is by codification in the form of legally binding rules which may be incorporated into national legislation or directly applied by national courts”. 12 There has not been a shortcoming of attempts to establish a multilateral framework. 13 Illustratively, a subject-specific treaty from 1926 proved to be an important stepping-stone 14 , China’ […] , 26 August 2011, (unofficial translation by the authors). For a discussion on the letters, see Hobér, (n 3) 514-518. 7 In a memorable statement (I call it a “legacy remark”) in his dissenting opinion in the Jurisdictional Immunities of the State , Germany v Italy: Greece Intervening, ICGJ 434 (ICJ 2012), Judge Yusuf of the International Court of Justice opined that: “[t]he court should not deal with surprise and regret, but rather with the appropriate settlement pursuant to international law.” Jurisdictional Immunities of the State (Diss. Op. Yusuf) para. 11. 8 Ibid. 9 I say “for those who care” because this was a phrase sometimes used by late Justice Antonin Scalia with respect to, for example, legislative history. In this context I use it because not every international lawyer would subscribe to th jurisprudential school of thougth coined as “the New Haven School”. See SUZUKI, Eisuke, ‘The New Haven School of International Law: An Invitation to A Policy-Oriented Jurisprudence’ (1974) 1 Yale J. Int’l L . (The jurisprudential school that they created at Yale adapts the analytical methods of the social sciences to the prescriptive purposes of the law. Deploying multiple methods, it seeks to develop tools to bring about changes in public and civic order that will make them more closely approximate the goals of human dignity which it postulates.”). 10 HOBÉR, Kaj, ‘Sovereign Immunity and International Arbitration – Recent developments, Arbitrators’ Insights’ in BAO, Chiann, LAUTENSCHLAGER, Felix, KAPLAN, Neil (eds.) Essays in Honour of Neil Kaplan (Sweet & Maxwell, 2012) 91. 11 See FOX, Hazel & WEBB, Philippa, The Law of State Immunity (3d ed, OUP 2013) 1. 12 Ibid 287. 13 ORAKHELASHVILI, Alexander, ‘Treaties on state immunity: the 1972 and 2004 Conventions’ in ORAKHELASHVILI, Alexander, (ed.) Research Handbook on Jurisdiction and Immunities in International Law (Edward Elgar Publishing Ltd 2015) 274 (“[T]he low participation of states in these treaties is a matter that cannot be overlooked. The 1972 European Convention on State Immunity is in force as between eight states only;1 while the 2004 UN Convention on Jurisdictional Immunities of States and Their Property is not in force yet, and it is uncertain when it will be..”) 14 It has been said that “[a]s far as State immunity is concerned, the first real breakthrough came in 1926” with the 1926 International Convention for the Unification of Certain Rules relating to the Immunity of State-owned Vessels. YANG, Xiaodong, State Immunity in International Law (Cambridge University Press 2012) 445. See in
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