CYIL vol. 11 (2020)

CYIL 11 (2020) CHINA’S BROKEN PROMISES AND DIPLOMATIC GRANDSTANDING … When the ILC presented its draft articles in 1991, none of the participants advocated for absolute immunity; this shift in theory was cemented with the adoption of the Convention. Many countries manifested its acceptance through its signature or ratification, including China. Thus, as a matter of state practice and opinion juris , “the general principle of restrictive immunity had been universally accepted, at least on the international plane, both as an established fact and as established law.” 74 China’s radical stance in 2011 was not a manifestation of its principled position, quite the contrary is true. 75 c. The New Haven School and the Unratified Provisions of the UNCSI In Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr)  76 , the ICJ opined that “signed but unratified treaties may constitute an accurate expression of the understanding of the parties at the time of signature.” 77 In Nuclear Tests (Australia v. France) 78 , the court held opined that “declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations”. 79 The court said nothing unreasonable in either case; quite the opposite, it could be seen as “a triumph of substance over form”; that is, the court observed that what is really the crux of the matter is the intention to be bound. 80 However, one must proceed with caution. The cases in which an “unperfected” legal act can be “perfected” should be narrowly construed – formalism is the rule and the act of perfecting an unratified treaty remains a rare (albeit sometimes necessary) exception. 81 The ICJ and other national courts have made it clear that provisions in the UNCSI are binding. 82 The reliance on the Convention demonstrates that albeit it is an “unperfected act” it has “important political, historical, or geographical information in it”, which elevates its standing and currency. 83 74 Yang, (n 15) 449. 75 See also ibid 454 (“Moreover, the fact that China and Russia, two erstwhile staunchest adherents of absolute immunity, not only actively participated in the consultations held under the auspices of the UN General Assembly Sixth Committee, but also signed the 2004 Convention (China on 14 September 2005; Russia on 1 December 2006), is surely an encouraging sign for the supporters of the Convention in particular and of the restrictive doctrine in general.”). 76 2001 I.C.J. 77 2001 I.C.J. para. 84. 78 1974 I.C.J. 253 (December 20). 79 1974 I.C.J. 253, 267 (December 20). 80 Reisman, (n 51) 742-743. The New Haven approach to international law can assist international lawyers, in general, and scholars, in particular, in determining what unperfected legal acts that should be given binding legal character see also SUZUKI, Eisuke, ‘The New Haven School of International Law: An Invitation to A Policy- Oriented Jurisprudence’ (1974) 1 Yale J. Int’l L . 9 (“As a point of departure, the New Haven approach establishes what may be referred to as a teleological orientation toward the function of law in a community.”). 81 However rare it should have an important role to play, see e.g. Reisman, (n 51) 745 (“To insist upon retaining the technicalities when they no longer serve a purpose would transform international law from a rational and purposive system for achieving optimum social goals with minimum world order into an obsessional neurosis.”). 82 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), https://www.investorstatelawguide.com/documents/documents/OT-0005-10%20 -%20Sedelmayer%20-%20Supreme%20Court%20of%20Sweden%20[Swedish].pdf. 83 Reisman, (n 51) 740.

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