CYIL vol. 11 (2020)

YLLI DAUTAJ CYIL 11 (2020) changed, however, is China’s economic strength and political influence. 42 The unwillingness to be bound by earlier concessions may have to do more with China’s “aggressive investments overseas” and less with its provision-specific criticism. 43 As a result of the aforementioned, the Chinese understanding of state immunity could be summarized as follows: 1. Based on the sovereign equality of all states, sovereign immunity of states and their property is a principle of international law; 2. Unless a state voluntarily and expressly waives its immunity, all acts of a state per se or conducted on its behalf should be absolutely immune from foreign jurisdictions; 3. A state-owned enterprise is an independent legal entity and should not enjoy immunities for its activities; 4. Negotiations and international treaties should be utilized to deal with the differences among nations in relation to the issues of state immunity; and 5. China reserves its rights to take counter-measures if any foreign state infringes upon sovereign immunities enjoyed by China and its property. 44 To sum up the legitimate expectations of the global community pre-2011 and the unexpected reality of a post-2011 China, Professor Hobér eloquently first observed that “[g] iven the fact that China has signed the Convention, this had been viewed as a sign that China was moving away from absolute immunity, and then concluded that “[t]he FG Hemisphere case makes it clear, however, that China is still firmly entrenched in the absolute immunity camp”. 45 Thus, the case itself is merely the first demonstration that China had not truly committed to the object and purpose of the Convention. Finally, this paper will make an addition to the conclusion by making the point that the Chinese action was a breach of public international law but also an action that elaborated the cementing of the Chinese adherence to absolute immunity, and thereby frustrating the object and purpose of the Convention. 4. Interim Obligations, Customary International Law & Other Unperfected Acts First, it should be a commonality that prior to the coming into force of the UNCSI, “Article 18 in the VCLT requires a signatory to refrain from acts which would defeat the voiced its opposition to the idea of limiting immunity.’ This was supported by the People’s Republic of China, African states and some Latin American countries. For some time, one was convinced that the ideological force of China and Russia would derail the attempt of codifying this area of the law.”). See also Bankas, (n 17) 189 (citing Mohammed Bedjaoui (ed.) International Law, Achievements and Prospects (Martinus Nijhoff 1991) 333 (“Dr. Sucharitkul in one of his expositions on state immunity argued that ‘It should be observed, on the other hand, that several governments expressed certain preference for a more absolute rule of state immunity. The USSR and Eastern European countries as well as some developing Asian, African and Latin American states would like to see the rule of state immunity upheld and maintained rather than eroded by large exceptions. Their views cannot be ignored.’”). 42 See China had a GDP of 1.339 trillion (2001), 2.286 trillion (2005), 7.552 (2011), and 15.269 (2019). See The World Bank, World Development Indicators, China may, like in the first half of the twentieth century, protect the state’s increasing commercial activity according to its communist theory. See discussion in Hafner & Köhler, (n 23) 4. 43 See also SHANG, Shu and WEI, Shen, ‘When the State Sovereign Immunity Rule Meets Sovereign Wealth Funds in the Post Financial Crisis Era: Is There Still a Black Hole in International Law?’ (2018) 31 Leiden Journal of International Law, Issue 4 915-938. 44 Hobér, (n 3) 507-508. 45 Ibid 519.


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