The Significance of China's Views on the Jus Cogens Exception to Foreign Government Official Immunity

By Ku, Julian G. | Duke Journal of Comparative & International Law, Spring 2016 | Go to article overview

The Significance of China's Views on the Jus Cogens Exception to Foreign Government Official Immunity


Ku, Julian G., Duke Journal of Comparative & International Law


TABLE OF CONTENTS  INTRODUCTION  I.  THE JUS COGENS EXCEPTION TO FOREIGN SOVEREIGN        IMMUNITY  II. CHINA AND SOVEREIGN IMMUNITY        A. China's View on the Importance of Sovereignty             1. China's Adherence to Absolute Sovereign Immunity             2. Foreign Government Official Immunity and the Jus cogens                  Exception  CONCLUSION: THE SIGNIFICANCE OF CHINA'S REJECTION OF      THE JUS COGENS EXCEPTION TO SOVEREIGN IMMUNITY 

INTRODUCTION

The "rise of China" has already become cliche among international relations scholars and policy analysts. Yet few disagree that the People's Republic of China's economic, military, and political power has reached new heights in recent years. (1) It is, therefore, surprising that relatively few international law scholars have studied whether and, if so how, the "rise of China" is affecting the development and growth of international law.

Take, for example, the application of the doctrine of sovereign immunity to foreign government officials--an area of substantial ferment and change. Numerous international authorities have suggested that, under international law, government officials cannot invoke the protections of sovereign immunity for acts that violate jus cogens norms. The United States Court of Appeals for the Fourth Circuit recently relied on this international law trend, holding that the "common law of sovereign immunity" does not shield former government officials accused of acts violating jus cogens from civil lawsuits. (2) But although the Fourth Circuit cited decisions from the United Kingdom and Italy to support its holding, (3) it did not cite China's views. This failure, while understandable, suggests that the impact of China's perspective on this key question of international law remains small.

This Essay uses the Fourth Circuit's holding as an opportunity to consider China's impact on the development of a complex and important doctrine of international law. It begins by observing that China's government would likely oppose the jus cogens exception to sovereign immunity recognized by the Fourth Circuit. This rejection of a jus cogens sovereign immunity exception would not be a matter of pure political expediency vulnerable to change with the political winds. Rather, rejecting a jus cogens exception to sovereign immunity would be consistent with the Chinese government's long-standing emphasis on the importance of sovereign equality under international law. Sovereign equality disapproves the notion that any country's courts can sit in judgment of another equal sovereign. China's commitment to this principle is reflected in its adherence to the doctrine of absolute sovereign immunity, despite the strong international trend to the contrary.

There are many examples of China's insistence on a broad sovereign immunity in U.S. courts. For instance, when Chinese government officials have become embroiled in U.S. litigation, the Chinese government has demanded immunity for all of its government officials, even for alleged jus cogens violations. Indeed, in a previous U.S. case involving allegations of jus cogens violations by a (non-head-of-state) Chinese government official, China demanded (and received) immunity for its government official in U.S. court. (4) The Chinese government has stated in official diplomatic notes that U.S. courts' failure to grant such immunity would be perceived by the Chinese government as a violation of the U.S. government's international law obligations. (5)

Although China's views on international law have rarely influenced international law scholars and theorists, China's vehement opposition to any exceptions to sovereign immunity would likely have practical significance. In a post-Samantar case against a Chinese government official, a U.S. court endorsing a jus cogens exception would probably face serious Chinese protest and opposition. If such a case were to arise, it would represent a fascinating example of how China's new importance in world affairs affects (or perhaps does not affect) the evolution of this doctrine in U. …

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