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
Date Written: March 16, 2014
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
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