CYIL vol. 11 (2020)

CYIL 11 (2020) CHINA’S BROKEN PROMISES AND DIPLOMATIC GRANDSTANDING … which was followed by the semi-successful regional treaty called the European Convention on State Immunity (ECSI), which in turn paved the way for the major UN led multilateral attempt, culminating in the UNCSI, which have so far resulted in 22 ratifications (but will enter into force upon 30 ratifications) and 14 signatures. 15 The ILC conducted a survey of international law and subsequently (1977) considered codification of the law on state immunity. 16 The work was completed in 1991, when the ILC submitted 22 draft articles to the UN General Assembly (UNGA) whereupon the UNGA established a sixth committee working group (GAWorking Group). In 2000 the UNGA set up an Ad Hoc Committee (the Committee), Chaired by Professor Hafner. The long awaited conference was eventually held in 2004, “whereupon the [UNGA] then adopted the Convention” on 2 December of 2004. 17 It was opened for signature on 17 January 2005. Despite not having entered into force, the Convention has proved majorly successful as constituting in part a codification of customary international law. The Convention sought to consolidate state practice and divergent views into uniformity and a harmonized legal framework. In this respect, the convention “constitute a significant stage in the harmonization and articulation of the international law of state immunity”. 18 Thus, it has rightly been noted that the Convention is an “epoch-making document” that “marks the final establishment of restrictive immunity as the prevailing doctrine in international law”. 19 The convention “embodies all the general principles of restrictive immunity […] while steering clear of various legal issues still in dispute”. 20 15 UNCSI Article 30 reads as follows: “1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession with the Secretary-General of the UN. 2. For each State ratifying, accepting, approving or acceding to the present Convention after the deposit of the thirtieth instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of such ratification, acceptance, approval or accession.” . 16 Fox &Webb, (n 12) 291. I think it is important to underscore that the ILC was a post-world war II phenomenon. Furthermore, it is important to embrace the success in economic cooperation and transnational commerce, trade, and investment as a means to promote peace and economic prosperity. See BANKAS, Ernest K. The State Immunity Controversy in International Law (Springer 2005) 175 (The ILC’s “creation was made possible after the Second World War in respect of the interests expressed by governments to promote a rapid growth and the progressive development of international law, with the ultimate aim of codifying the said law.”). 17 Yang, (n 15) 453. On the 25 October 2004 the UN Sixth Committee met and considered the ad hoc work, culminating the UNGA adopting the final text as a convention. Fox & Webb, (n 12) 292. 18 Fox & Webb, (n 12) 287. 19 Yang, (n 15) 441. 20 ibid. “The [UNCSI] encapsulates all the currently accepted general principles on State immunity. These are broadly in line with present national statutes on immunity. These principles include: (1) States enjoy immunity as a principle of customary international law (preamble, paragraph 1). (2) In principle States are immune from proceedings before foreign national courts (Article 5) subject to clearly defined exceptions to that immunity (Articles 7–17). (3) In order to deny immunity, a court must have jurisdiction in the first place. Thus, a jurisdictional connection is built into all the articles dealing with the proceedings in which State immunity cannot be invoked. […] (4) The immunity enjoyed by a foreign State encompasses two distinct immunities: immunity from jurisdiction and immunity from execution; waiver of immunity from jurisdiction does not mean waiver of immunity from execution, for which a separate waiver is needed. (5) Accordingly, the issue of enforcement is treated separately from the issue of adjudication.” ibid 455. particular Article 3 denying immunity from adjudication and execution for states vis-á-vis non-warship, non- governmental ships used for commercial activity.

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