A Review of Sovereign Immunities Cases Against China in the United States Courts

Li Qingming

Abstract:Since the Foreign Sovereign Immunities Act (FSIA) of 1976 came into effect, the number of cases involving China’s sovereign immunity filed in the United States courts has been increasing. Subject to the broad definition of “foreign state” in the FSIA and judicial precedents, foreign state and “political subdivision of a foreign state” include China’s central government and its directly subordinate authorities, diplomatic missions and local governments, and an agency or instrumentality of a foreign state includes any public institution such as the Chinese Academy of Sciences directly administered under the State Council, and State-owned Enterprises directly owned by the State Council (including SASAC), and under certain conditions, an organ of a foreign state or political subdivision including any public institution that is not directly administered under the government but functions mainly for public career such as science, education, culture and public health may claim sovereign immunity. However, whether a foreign state will be immune from suits depends on whether the disputed acts fall within 28 U.S. Code § 1605 and §1610. China adheres to absolute immunity of states and ignores all frivolous or malicious cases without any factual or legal basis. China urges the U.S. Department of State to file statements of interest to the United State courts to argue for China on the invalid service, dismissal of the cases and non execution of the judgments and orders. The Ministry of Justice of the People’s Republic of China refuses to assist the United States courts in serving judicial documents that infringe on China’s sovereignty, and the central government and local governments of China will decide whether to appear in court to challenge the jurisdiction of the United States courts or even the substantive issues of the cases if necessary after being served by the U.S. Department of State. Due to the complexity and sensitivity of foreign sovereign immunities cases, and the obligation of the United States courts to proactively review whether they have jurisdiction over the case ex officio, Chinese and foreign scholars and non-governmental organizations may apply to the United States courts for submission of Amici Curiae Briefs, which helps the United States courts find that the case shall be dismissed on the ground of lack of jurisdiction. If the United States courts makes a default judgment against China without regard to China’s opposition, China may refuse to recognize and enforce the default judgment.

Keywords:State Immunity, Foreign Sovereign Immunities Act, Service, Statement of Interest, Amici Curiae, Jurisdiction

Veto Power, Obligation to Avoid Voting, and Balance of Interests: Analysis of the Enforcement of the ICJ Judgments by the Security Council

He Zhipeng and Zhao Jianzhou

Abstract:Article 94 (2) of the UN Charter established a system by which the UN Security Council enforces the judgments of the International Court of Justice by resolution. The Nicaragua case exposed many problems in the practice of this system, such as unclear norms and non-compliance with the law, and reflected the tension between the original textual norms as lex ferenda and the practical application of the law as lex lata. The key issues in this system are the rules for the permanent members to use their veto power and the rules for determining the obligation to avoid voting. On this issue, it’s necessary to return to the Charter and relevant UN documents and resolutions, analyze it in the light of the basic purpose of peaceful settlement of disputes, and form a normative interpretation that respects the spirit of the judgment, refrain from abusing the veto power, and cautiously apply the obligation of abstention. By adopting an interpretation method of balanced interests, the judgment enforcement system will be able to take into account the reasonable concerns of all parties involved as much as possible, avoid the improper interference of great power politics on international adjudication, and prevent the international justice from being used for political purposes, so as to pursue a justice concept based on the greatest consensus of the international community.

Keywords:International Court of Justice, Enforcement of the Judgment, Charter of the United Nations, Security Council, International Adjudication

Application of the International Criteria for the Safeguarding of the Intangible Cultural Heritage Through the UNESCO ICH List: Problems, Causes and Improvements

Wang Wei

Abstract:The Convention for the Safeguarding of the Intangible Cultural Heritage (ICH) introduces the concepts of “human rights”, “mutual respect” and “sustainable development” as international criteria for the safeguarding of the ICH. The state practice under the ICH Convention has shown that upholding human rights is fundamental to the Convention’s principles. Mutual respect is the fundamental principle of the Convention, and sustainable development is the action goal. The review of the UNESCO ICH List reflects problems such as the fuzziness of criteria, the weakness of binding force, the limitation of written evaluation process and the lack of delisting procedures and supervision mechanism. Combined with the latest developments of the UNESCO ICH List from 2018 to 2022, this paper proposes suggestions including making full use of the Convention mechanism to promote compliance by States Parties, clarifying the requirements of the “three criteria”, establishing a dialogue mechanism in the evaluation procedure and detailing the supervision procedure. The implementation of the “three criteria” is also part of fulfilling the core obligations of the Charter of the United Nations in the cultural field.

Keywords:Intangible Cultural Heritage (ICH), Convention for the Safeguarding of the Intangible Cultural Heritage, Human Rights, Mutual Respect, Sustainable Development

Transnational Administrative Law Enforcement: A Typology Analysis Based on Territorial Order

Liu Jie

Abstract:With the continuous development of the territorial principle that maintains the international order, the transnational law enforcement activities of administrative agencies within and outside the territory have become more common and complex. However, relevant legal phenomena have not been the focus of domestic administrative law and international law in the past. This typology analysis aims at helping to shape the internal system of the emerging issue of Transnational Administrative Law Enforcement (TALE). Based on territorial criteria, the geographical space of administrative agency applicable law can be divided into Territorial Operation and Extraterritorial Operation. Among them, Territorial Operation has three levels. According to the source of power, Extraterritorial Operation covers the interaction between countries, countries and international organizations, countries and private subjects, and the unilateral actions of countries. By describing and summarizing the above two types of seven law enforcement phenomena, it can be found that although sovereign states have their own sovereign territories and do not have jurisdiction over each other in principle, countries still participate in constructing the order of the changing territorial order in the way of TALE by administrative agencies.

Keywords：Transnational Administrative Law Enforcement, Administrative Agency, Territorial Order, Territorial Operation, Extraterritorial Operation, Territorial Jurisdiction

The Impact of Economic Sanctions on Investor-State Arbitration: Based on Analysis of the ISDS Practice

Fan Xiaoyu and Qi Tong

Abstract:The use of economic sanctions has increased significantly in recent years and is increasingly intertwined with international investment law. The number of Investor-State Arbitration cases involving economic sanctions has risen sharply, raising a number of difficult legal questions. The tribunal may deem investor’s conduct of violating UN sanctions a bar to its jurisdiction or to the admissibility of the claims. The execution of awards may also not proceed smoothly due to sanctions. In addition, there is considerable uncertainty as to whether economic sanctions violate substantive standards of investment protection and treatment, and whether host states can invoke the national security exception in BITs or rely on force majeure, necessity or countermeasures of customary international law to defend against them. In terms of the conflicting values and hierarchy of validity between investment protection and economic sanctions, UN sanction is a matter of international public policy and is more valid than investment treaty obligations, whereas unilateral sanction is not. The accumulation of Investor-State Arbitration cases involving economic sanctions will help clarify the fuzzy relationship between the international investment law system and the economic sanction system. In the absence of international legislation, Investor-State Arbitration can be one of the effective weapons to restrain or counterbalance economic sanctions.

Keywords：Investor-State Arbitration, Economic Sanctions, Investment Protection, National Security, Public Policy

National Security Generalization in International Economic Governance: Legal Analysis and China’s Response

Peng Yang

Abstract:With the changes in the global economic competition pattern, the threat of new security risks and the rise of anti-globalization thoughts, national security issues frequently appear in international economic activities. Developed countries represented by the United States have continuously promoted the transformation of national security review from policy to tool, exception to principle, and passiveness to proactiveness, even united with other countries to follow up its security enforcement practices. This phenomenon is not only the manifestation of adjustments of neoliberalism and the “return” of sovereign states, but also the result of the application of the theory of relative power. Based on a holistic approach to national security, China has established domestic legal system against long-arm jurisdiction and foreign sanctions, which enables China’s response to the generalization of national security progressed from a single response method of administrative punishment to multiple response methods of administrative punishment, judicial relief and comprehensive countermeasures. Given the characteristics of different areas of international economic activities, the flexible use of dispute settlement mechanisms in the trade field, the exhaustive relief of litigation by multinational companies in the investment field, and internationalization of the RMB cross-border settlement system in the financial field, should also be included in the “toolbox” to counter the generalization of national security.

Keywords：International Economic Governance, National Security Generalization, A Holistic Approach to National Security, Economic Sanctions, Anti-Foreign Sanctions, WTO

Exploring the Reform and Development Path of Accountability Mechanism of the World Bank

Jiang Chenxi

Abstract:The establishment of an effective accountability mechanism is important for enhancing the ability of International Financial Institutions (IFIs）to participate in global governance. Through exploring the basic institutional framework of the World Bank’s accountability mechanism and comparatively analyzing with other international financial institutions, it can be concluded that the new accountability mechanism of the World Bank has the potential defects of insufficient protection for the rights of claimants, unclear specific concepts and specific operational procedures, and tilted responsibility toward borrowers. The reasons include restrictions on the application of obligatory norms of international law, the power game between the IFIs and their member countries, the lack of external accountability and the non-judicial nature of internal accountability, which not only affect the role of the World Bank’s accountability mechanism, but also should be paid attention to by IFIs as a whole. To sum up, the World Bank should strengthen the application of international human rights standards in the accountability process, increase the recognition and participation of relevant parties, balance the relationship between multiple value orientations, and actively participate in the construction of a coordinated and independent accountability system on the basis of promoting the overall reform of the institution, so as to achieve the benign, orderly and sustainable development of the Bank itself and its accountability mechanism.

Keywords：World Bank, Accountability Mechanism, International Financial Institutions, Reform and Development, Global Governance of International Organizations