One Country, Two State Immunity Doctrines: A Pluralistic Depiction of the Congo Case

National Taiwan University Law Review, 9(2): 197-232, 2014

25 Pages Posted: 17 Mar 2014 Last revised: 14 Feb 2017

See all articles by Chien-Huei Wu

Chien-Huei Wu

Acadmia Sinica - Institute of European and American Studies

Date Written: March 16, 2014

Abstract

This article explores the space for a restrictive state immunity doctrine applicable in Hong Kong in light of its status as a special administrative region of China. After reviewing China’s longstanding position, its domestic legislation and its signature of the UNJISTP, it finds China’s policy shift from conventional absolute state immunity doctrine to a restrictive one. Nonetheless, such shift is not reflected in the Congo case. After examining the rulings of the CFI, CA and CFA, it argues that state immunity is a question of law to be interpreted by the courts. The competence to adopt a different state immunity doctrine may find its legal basis from ‘external affairs’. This position would neither prejudice China’s sovereignty nor run counter to Hong Kong’s status as a special administrative region. In fact, China and Hong Kong frequently adopt different state immunity doctrines; such practice is not inconsistent with public international law.

Keywords: state immunity, act of state, Hong Kong Basic Law, Democratic Republic of the Congo v. FG Hemisphere Associates LLC, UNJISTP, one country, two systems, foreign affairs, external affairs, Kompetenz-Kompetenz

Suggested Citation

Wu, Chien-Huei, One Country, Two State Immunity Doctrines: A Pluralistic Depiction of the Congo Case (March 16, 2014). National Taiwan University Law Review, 9(2): 197-232, 2014. Available at SSRN: https://ssrn.com/abstract=2409848

Chien-Huei Wu (Contact Author)

Acadmia Sinica - Institute of European and American Studies ( email )

Nankang
Taipei, 11529
Taiwan

HOME PAGE: http://https://www.ea.sinica.edu.tw/people/Chien-Huei-Wu.aspx

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