On Luriadictional Immunity Of States In Caims Against Japan

Facing the fact of the repeatedly losing of the cases of civil claims against thegovernment of Japan in Japan, the Chinese victims chose the path of suing Japan inChinese court, then, state jurisdictional immunity (as for the immunity from execution,this paper will not discuss) became the issue of those cases. By the analysis of thecivil claims against Japan in the case of Bombing of Chongqing, and by thecomparative analysis of the relative cases from other countries, as well as frominternational organizations, this paper comes up with a conclusion that Japan may notdeserve the status of state jurisdictional immunity in the similar cases represented bythe case of Bombing of Chongqing, and Chinese court may be inclined to exercise thejurisdiction over those cases.Chapter one concludes that state jurisdictional immunity is the main issue of thecase of Bombing of Chongqing through a brief introduction to the statement of facts,and this chapter also briefly introduces the general strategies practiced in the similarcases in United States, North Korea and South Korea, for the beneficial reference tothe civil claims against the government of Japan. Chapter two concentrates on theRestrictive State Immunity Theory and the world wide tendency of the restrictive stateimmunity practices, which strengthen the viewpoint of this paper theoretically andpractically. Chapter three compares the legal components of the Italian case of Ferrniand the case of the Bombing of Chongqing, then, this chapter questions the reasoningof the International Court upon the Jurisdictional Immunity of The State (Germany v.Italy: Greece Intervening), which support the viewpoint of this paper. Chapter fourcomes up with three main arguments of the viewpoint. Firstly, the conducts ofJapanese Government fall into the category of war crime which seriously violateInternational Jus Cogens, and in accordance with the basic characterisic ofInternational Jus Cogens, Japan shall not be entitled State Jurisdictional Immunity.Secondly, the conducts of Japan fall into the category of the principle of territorialtorts exception, regardless those conducts were measured either by the place of tortact or by the place where the consequence has happened. Therefore, Chinese Courtsmay tend to deny Japan’s state jurisdictional immunity and exercise jurisdiction overthe case of Bombing of Chongqing. Lastly, the conducts of Japanese Governmenthave occurred in the period of armed conflict. As for the question whether the principle of territorial torts exception can be applied to the torts occurred in the periodof armed conflict, there are still no concordant and explicit provisions in theinternational law. Chinese Courts may tend to adopt the stance that the principle ofterritorial torts exception can be applied to the torts occurred in the period of armedconflict, to guide the development of the international law and to undertake theresponsibilities of a great power, as well as to obtain the initiative of safeguarding theinterests of our country and our people.China may change its stance from Absolute State Immunity to Restrictive StateImmunity gradually. It is Restrictive State Immunity, rather than Absolute StateImmunity, which can defend national interest more effectively. Where there is nounified international state immunity provision, states have a wide discretion(exercised on the base of their own interests) over the actual operation of the stateimmunity. Additionally, adopting the stance of restrictive state immunity not onlyconform to the world wide tendency of restrictive state immunity, but also better theproceeding of international exchange and cooperation.In regard to the cases of civil claims against the government of Japan,represented by this case, Chinese Courts may tend to deny the state jurisdictionalimmunity of Japan and exercise jurisdiction over those cases. Suing Japan inChinese court has a bright future, even though with a rough road ahead. Toovercome the difficulties which have occurred or will occur, Chinese legislativebody may accelerate the process of enacting of “jurisdictional immunities of statesand their property of the People’s Republic of China”, Chinese Government maysupport suing Japan in Chinese court by any necessary measures, and ChineseHighest Court may establish a system of legal precedent, guiding the cases broughtagainst Japan in Chinese Courts.