CYIL vol. 11 (2020)
CYIL 11 (2020) CHINA’S BROKEN PROMISES AND DIPLOMATIC GRANDSTANDING … was a legally correct undertaking, but not the latter. If China – as will be seen below – feel that the negotiation leading up to the signing of the convention was a mere “support” for the global coordinated efforts and that the absolute position has never changed, it should have made that clear. That is not to say that China could somehow have escaped its Article 18 obligations pursuant to the VCLT, such is an irrational and invalid afterthought. The making of customary international law is not something a state can decide to “withdraw from” at any time. If a custom has been established, it is binding. One should compare and contrast, on the one hand, (a) the object and purpose of the Convention and (b) the Chinese replies in the fifty-sixth session, with, on the other hand, (c) the letters from the MFA in the FG Hemisphere case, and (d) the declaration of the Standing Committee of the Chinese Congress. These positions are indeed mutually exclusive. Below follow several excerpts from the Chinese Government: Fifty-Sixth Session in 2001 (General comments) 1. According to traditional international law, States and their property enjoy absolute jurisdictional immunities but, in recent years, the practice of States on this subject differs greatly. Some States apply the principle of absolute immunity, others the principle of restrictive immunity; even for States applying the principle of restrictive immunity, rules of internal laws vary. Therefore, the Government of China considers that for the topic of jurisdictional immunities of States and their property, it is imperative that a uniform rule be adopted. 2. The Government of China also believes that an international rule adopted for such an important subject should be legally binding and operational, so that it could be applied directly by national courts in dealing with relevant cases. Thus, convening a diplomatic conference to adopt a convention is the best way truly to realize the goal of harmonizing the law and practice of States in the area of State immunity. 3. The draft articles adopted by the International Law Commission on this topic after years of deliberation provide a solid basis for States to adopt a uniform norm of international law on this topic. The Sixth Committee achieved substantial progress in grandstanding. The fact of the matter is that the US, Canada, Australia have robust – and even more liberal and progressive--municipal legislation and practices in place. One can seek to circumvent the truth, but in reality, China still adheres to absolute immunity and has therefore broken its legal undertakings. Finally, the ICJ has held to the contrary. It clearly has held that the UNCSI in large parts constitute a codification of customary international law. China has acted in a way to elaborate that very custom. If the breach of customary law means that there is no rule, then it is no source of law at all. There would have been another story to be told if China had – at the get-go – refused the ILC work and the UNCSI. If so, then one could have said that China had demonstrated that it would not be bound. One observation of academic curtailing can be found in the article mentioned, namely, in one section the authors write that the Central Bank Property Law “suggests that such ‘absolute immunity’ is becoming somehow ‘restricted’”, while at the very same page but in the next section writing that the law generally follows the doctrine of absolute immunity “notwithstanding the two exceptions”. ibid 65. The two exceptions to the law are (1) reciprocity and (2) waiver, which have been present in any absolutist jurisdiction, at any time in legal civilization. This is nothing new. One cannot treat the legislation as “restrictive” when its suits the political agenda of presenting a front of “cooperation” or “global coordination”, on the one hand, and then portraying the law as a manifestation of its absolutist adherence when pressed against the wall for its own practices. This summarizes the entire Chinese position as one of diplomatic grandstanding and willingly misleading. No state, not even China, can eat the cake and have it, too, or blow hot and cold air at the same time. The times where states were treated as a prince are long-gone. The time for state responsibility has now come.
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