CYIL vol. 11 (2020)

CYIL 11 (2020) CHINA’S BROKEN PROMISES AND DIPLOMATIC GRANDSTANDING … object and purpose of [the] treaty which it has signed”. 46 Article 18 is a legal obligation. 47 As articulated in the previous chapter, China has decided to disregard both the provisions in the Convention and its overall object and purpose. 48 Second, it is well established that state immunity is “a general rule of customary international law rooted in the current practice of States,” 49 and that until the Convention “comes into force, state immunity continues to derive its legal authority from customary international law.” 50 However, both the ICJ and national courts have treated the Convention as constituting in large part a codification of customary international law. 51 Finally, the intentional use of and the value added to the Convention makes the unratified convention binding on the signatories. If we insist on “retaining the technicalities when they no longer serve a purpose[, we] would transform international law from a rational and purposive system for achieving optimum social goals with minimum world order into an obsessional neurosis.” 52 One caveat merits attention, namely, that even if the Convention is treated as customary international law, the ICJ has made clear that it is only partly so. Therefore, this paper will not discuss the nuance, scope, and degree of any particular provision – not even vis-á-vis 46 Fox & Webb, (n 12) 312. 47 See e.g. GRAGL, Paul, and FITZMAURICE, Malgosia, ‘The Legal Character of Article 18 of the Vienna Convention on the Law of Treaties’ (2019) 68 International and Comparative Law Quarterly 699, 703 (“This brief illustration of the development of Article 18 shows that it underwent considerable discussion and modification, and that there is a general agreement that as of the 1953 Lauterpacht draft, the interim obligation was considered to be a legal obligation.”). cf Orakhelashvili, (n 14) 292 (“It is, however, unclear how a Convention which is not ratified nor in force, including non-ratification by the forum state, can be the ‘most authoritative’ statement of the legal position or any of its understandings. It could well be a statement of the intention of the body that adopted the Convention as to the future state of the law after the Convention enters into force. But before then, it cannot be taken as a source of law, even if it conceptually reinforces the judges’ own perception as to the required legal position.”). 48 See Wei, (n 31). The FG Hemisphere Case, and therefore also the Standing Committee, misses the point by embarking upon the wrong tree. Yes, China is free to disregard its provisions of the UNCSI, but not its object and purpose. Thus, “principled position” is a misuse of terminology. VCLT does not force provisions upon the state, it provides for interim obligations with respect to the object and purpose – this cover overreaching agreement, not the nitty gritty. Thus, it accepts the distinction between immunity from adjudication and execution, but perhaps not the list of explicitly immune property in article 21; it accepts the doctrine of restrictive theory, but does not clarify the distinction between acta jure imperii/gestionis and the test relevant, i.e. purpose/nature. 49 Jurisdictional Immunities of the State, (n 5) para 56. 50 Fox &Webb, (n 12) 2. See also the Oleykinov v Russia , App no 36703/04, 14 March 2013 (ECtHR), para 66 (the UNCSI “apply under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either.”). 51 See e.g. Jurisdictional Immunities at paras. 117 and 118; 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. It was cited by the Supreme Court of Japan to support its adoption of the restrictive theory of immunity, and it has been signed, though not yet ratified, by several states historically opposed to restrictive immunity, such as China and Russia.”). 52 REISMAN, Michael, ‘Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions’ (2002) 35 Vanderbilt Journal of Transnational Law 745. The author did not advocate against formalism, quite the opposite. He, however, made the point that the baby not be thrown out with the bathwater and that the “insistence on strict formalism would disserve an could even undermine public order”; ibid 746.


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