CYIL vol. 11 (2020)

CYIL 11 (2020) CHINA’S BROKEN PROMISES AND DIPLOMATIC GRANDSTANDING … It seems that much of the Chinese commentary – official and unofficial – to the 2011 positioning is an afterthought. It is true that China naturally aligns with a more absolutist stance due to its ideological preference. However, all these considerations are not new and were thoroughly presented in the negotiations leading up to the Convention. It is precisely for the many concessions that scholars from the West oftentimes criticizes the convention for not going far enough. 38 Third-world skepticism was actually a delaying factor as well as one that eventually made the convention “more conservative.” 39 In fact, China did make “specific comments” to certain provisions in the convention, inter alia , Article 2(2); Article 10; and Article 18. China’s comments included the following: Article 2, paragraph2, concerning tests for determining a commercial transaction […] Abalancemust be struck between the “nature” test and the “purpose” test to protect the property of States used for public purposes under exceptional circumstances. […]. Article 10, concerning commercial transactions […] Therefore, article 10, paragraph 3, should be reformulated to read “[…] a State enterprise or other entity established by the State which has an independent legal personality in accordance with the internal law of that State and is capable of: […]”. According to the relevant laws of China, Chinese State enterprises and other entities established by the State have independent legal personality. […]. Article 18, concerning State immunity from measures of constraint […] The most serious concern is that article 18 fails to differentiate between pre- judgement measures of constraint and post-judgement measures of constraint. […]. For post-judgement measures of constraint, the Government of China considers that, in principle, consent of the defendant State is also essential for the execution of such measures, especially in cases in which the defendant State is still contesting the jurisdictional immunity question. When a national court implements measures of constraint against the property of a defendant State without its consent, not only would such an action violate the famous legal axiom of par in parem imperium non habet, it could also strain relations between the two States. Therefore, there should be room for the Governments of the two States to resolve the question through diplomatic channels and the arbitrary enforcement of measures of constraint avoided. 40 China’s provision-specific criticism may not have changed, but the fact of the matter is that such concerns represent nothing new. China, like other countries that initially challenged the restrictive theory of immunity altogether, had to give-in to some concession. 41 What has 38 See e.g. this author’s remarks in DAUTAJ, Ylli, ‘Enforcing Arbitral Awards Against States and the Defense of Sovereign Immunity from Execution’ (2019) 16 MJIEL Issue 3; Dautaj, (n 25); and DAUTAJ, Ylli and FOX, William F. ‘Jurisdictional Immunities and Certain Iranian Assets: Missed Opportunities for Defining Sovereign Immunity at The International Court of Justice’, Cornell International Law Journal (forthcoming in Volume 53). 39 See Hafner & Köhler, (n 23) and Bankas, (n 17) 176. See also Bankas, (n 17) 177 (“In fact, according to the ILC reports, almost all Third World countries have expressed the zeal to have the absolute immunity doctrine preserved.”). 40 United Nations General Assembly, Fifty-sixth session, Convention on jurisdictional immunities of States and their property, Report of the Secretary General, Comments (reply from China, 19 July 2001) A/56/150. 41 See e.g. Yang, (n 15) 457 (“Soviet Union, now Russia, right from the outset of the work of the Commission


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