Research On The Immunity Of States

Nowadays, international economic exchanges have become more frequent. That States and their property enjoy the right of immunity is a main principle of international law. It is derived from the principle of national sovereignty; and it is the result of the development of international civil relations. Since the 21st century, countries take part in various political, economic and diplomatic activities. Participating all kinds of civil activities, the country has a dual national identity-it is not only a sovereign state but also a party in international civil relations. Thus, when there is a dispute between countries on international civil relations, there must be a problem on the legal status of States and their property in proceedings. Because of the differences in theory and practice , there is a great conflict of the Jurisdictional Immunity of States and their property. This requires us to have a more profound understanding and analysis about the issue.This paper discusses the issue of the immunity of States and their property from the perspective of history and reality. It has been divided into three parts:In part one, it is about the introduction of the Jurisdictional Immunity of States and their property. Firstly, it is the concept-acts and property of a country are not restricted by another in legislative , judicial and administrative aspects. We must pay attention to the"immunity of compulsory measures"-it is an important part. It means that the property of a country is exempted in proceedings in foreign courts. Secondly, it is the origin. Because of the development of the productivity, disputes between countries and persons appear. The concept of the Jurisdictional Immunity of States and their property formed during accumulative cases since the early 19th century. Finally, it is the basis, and the view of national sovereign is widely supported. It tells that the principle of the Jurisdictional Immunity of States and their property is derived from the national sovereign and it is independent.In part two, it is about the evolution and dispute between two kinds of theories on it. Firstly, it is the introduction of the"absolute immunity theory". It is the earliest theory about the issue. It means that no matter what kinds of acts and property they are and no matter where they are and who control them, the States and their property enjoy the right of immunity, except that the country gives up the right voluntarily.Secondly, it is the introduction of the"limited immunity theory". It means that acts of a country can be divided into sovereign acts and non-sovereign acts by their natures and purposes. Therefore, the state properties can also be divided into the property used for government affairs and the property used for commercial purposes. The sovereign acts and the property used for government affairs are immune and the non-sovereign acts and the property used for commercial purposes are not immune.Thirdly, it is the reasons of the evolution from the"absolute immunity theory"to the"limited immunity theory". It includes five points: 1.the "limited immunity theory" becomes the main viewpoint in the theoretical circle gradually.2. the Jurisdictional Immunity of States need to be exempted because of the development of the world's politics and economy.3. the "limited immunity theory" can deal with the relationship between territorial jurisdiction and foreign immunities better.4.the "limited immunity theory" can make the state which is a party in international civil relations and the other party equally, which is harmonious to the principle of fairness and justice in human society. 5. some international conventions take an important part in this change.Finally, it is the dispute between the two theories. It consists of three points: 1.absolute immunity theorists tell that the"limited immunity theory"is incompatible with the principle of national sovereign. It is a fatal error. Conversely, it is not violated the principle, but gives reasonable respect. 2. absolute immunity theorists tell that the division of sovereign acts and non-sovereign acts is unscientific. In fact, the division could restrict powers from abusing. 3. absolute immunity theorists tell that even if they admit the division, the standard is also a problem. Because the standards are different, we must analyze all the background of an act in order to conform its nature.In part three, it is about our country's position and attitude to the issue. Firstly, it is the introduction of our country's position, that is to say, on the basis of the absolute immunity theory, we would treat every problem flexibly. There are four reasons: 1.it is unequal between the two theories; 2.it is non-economic to solve disputes by diplomatic means; 3.it is unwise to solve disputes by retaliation; 4.the limited immunity theory is in line with China's fundamental interests. Secondly, it is the policy on separation of government and enterprise. Our country uses legal system to separate government from enterprise. Some state-owned enterprises are divided into completely independent limited companies and joint-stock companies. The more independent companies are, the more clearly the separate. Finally, it is about some suggestions to our country on the issue. It includes:1.our country needs to participate the"Convention on Jurisdictional Immunities of States and Their Property"actively; 2.we should launch an activity of legal education on the Jurisdictional Immunity of States and their property.;3.we should deepen the reform of state-owned enterprises to make the majority own their property; 4.we should train a number of proficient judges and lawyers to safeguard the national and private interests better; 5.when the conditions are proper, we should formulate an"Immunity Act of People's Republic of China".