CYIL vol. 11 (2020)

YLLI DAUTAJ CYIL 11 (2020) Discussions of equal importance, but not discussed here, include, inter alia , what constitutes “undue delay” in (b) 67 ; the test/approach for determining whether the obligation is defeated 68 ; and the tests available to assess the object and purpose 69 of a treaty. b. Customary International Law China’s state practice and opinio juris on state immunity shifted dramatically and radically in, first, 2004–2005 with the adoption and signing of the UNCSI and, second, in 2011 with the declaration of the Standing Committee in light of the FG Hemisphere case. 70 The former Statute in May 2002, which became known as ‘unsigning’. In a letter to the United Nations Secretary General, the Bush administration announced in December 2000 that the US did ‘not intend to become a party to the treaty’ and that ‘[a]ccordingly, the United States has no legal obligations arising from its signature’, without, however, mentioning Article 18 itself.”). Article 31 of the UNCSI deals with denunciation. 67 See Dörr & Schmalenbach, (n 52) 230 (“Factors to be taken into account for determining the undue character of the delay may include the number of contracting States, the complexity of the subject of the treaty, the amount of political controversy about it and the time it took to negotiate the treaty. As a rule of thumb, for multilateral conventions with a universal participation, it is not uncommon to take more than five years from the adoption of the text until the entry into force (it took the VCLT itself more than 10 years!).”). 68 That is, whether the approach rests on legitimate expectations, subjective tests or a “manifest intent” test. See Gragl & Fitzmaurice, (n 46) 707-708; Klabbers, (n 58) 283. 69 See Gragl & Fitzmaurice, (n 46) 710 (“The object and purpose are therefore two complementary and interdependent elements. To assess these functions and elements in practice, four tests have been proposed: (i) under the ‘essential elements test’, Article 18 enjoins States to comply with the most important or essential parts of a treaty, which constitute its object and purpose. The disadvantage of this test is, however, that it offers no objective method for determining those parts of a treaty which are ‘essential’. (ii) The ‘impossible performance test’ prohibits States from taking action that would render a treaty’s subsequent performance impossible. The problem with this test is that it does not distinguish between bilateral and multilateral treaties. It is impossible to apply this test to multilateral treaties in a meaningful and successful way, and thus it offers only little restraint on States in such a context. (iii) The ‘bad faith and manifest intent test’ considers whether a State’s action seems unwarranted and condemnable, regardless of actual proof of bad faith. Although this test relies on objective evidence and tries to avoid delving into the subjective intent of a State, the difficulty of determining which actions manifest or demonstrate bad faith remains. (iv) The ‘facilitation test’ preserves the status quo before signature, but in one direction only: States may move toward eventual compliance with the treaty’s object, but not away from it. The problems with this test are that it could create double standards if one of the treaty signatories has already moved further towards achieving the treaty’s objective; and it could create perverse incentives for States to step back from achieving the treaty objective before signature, in order to allow it, de facto, to maintain the status quo ante afterwards.”). 70 Two authors note that China and Russia have “signaled increasing acceptance of the restrictive doctrine. This is illustrated not only by their signature of the UNCSI, but also by their domestic legislation and/or court decisions.” The same authors also See Shan & Wang, (n 7) 64. However, the authors make the point that this trend does not prove a rule of customary international law. The question is then, so what was it if the signing of the UNCSI and the Central Bank Property Law – in conjunction with no rejection of the restrictive theory or a declaration of its interim adherence to the absolute theory – was not to be understood as state practice and opinion juris . The authors confidently write that “[d]espite the general trend towards a restrictive doctrine, it has yet to be established as a rule of customary international law as both the objective (State practice) and subjective (opinio juris) requirements are yet to be met.” ibid 65. Quite frankly, I cannot follow the logic or even the distinction between a “trend” and a “practice”. The “trend” can be articulated by analyzing other countries in a comparative legal study, but how does one show that a country has partaken in a trend by certain acts over some thirty years, but never expressed a state practice or opinion juris . According to the authors, there has been a world-wide trend towards restrictive immunity and China has been part of it, but at the same time it also, “still”, adheres to absolute immunity. The authors even feel confident in pointing out that “China, India, the Russian Federation and the United Kingdom signed the treaty but are yet to ratify it, while the USA, Canada, Australia and Singapore refrained from signing the instrument”. ibid 61. This is nothing but Political

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