China’s broken promises and diplomatic grandstanding with respect to the 2004 un convention on state immunity

Dautaj, Ylli (2020) China’s broken promises and diplomatic grandstanding with respect to the 2004 un convention on state immunity. Czech Yearbook of Public and Private International Law, 11. pp. 121-142. ISSN 18050565

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The United Nations Convention on Jurisdictional Immunities of States and Their Property (the Convention) was adopted on 2 December of 2004. The Convention sought to consolidate state practice and divergent views into uniformity and a harmonized legal framework. The Convention embodies all the general principles of the restrictive theory on immunity – with respect to immunity from adjudication as well as immunity from execution. However, it has yet to enter into force since it requires thirty ratifications. Notwithstanding, it counts the signature of states as diverge as China, India, Iran, Japan, Russia, Switzerland, and the United Kingdom. Moreover, both the International Court of Justice (ICJ) and various municipal courts have treated the Convention as constituting in part a codification of customary international law. This paper concludes that China’s absolutist position is not merely a surprise and regret, but also a breach of public international law. It makes three points: (1) China has an interim obligation pursuant to Article 18 of the Vienna Convention of the Law of Treaties to refrain from acts which would defeat the object and purpose of a treaty it has signed; (2) the Convention has been treated largely, but not exclusively, as a codification of customary international law; and (3) if one subscribes to the New Haven school of thought, China could even be asked to obey the specific provisions of the Convention, let alone refrain from defeating its object and purpose. © 2020, Czech Society of International Law. All rights reserved.

Item Type: Article
Keywords: United Nations | Immunities | Convention | International Court of Justice | New Haven School
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 15 Dec 2021 10:26
Last Modified: 01 Feb 2022 11:49
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