The Subjects Of And Part Of The Exceptions To State Immunity

State immunity is an essential part of international law.The UN Convention on Jurisdictional Immunities of States and Their Property represented an important milestone in international legislation in this area.China joined the Convention in 2005.Although the National People's Congress has not ratified the convention,the Ministry of Foreign Affairs has organized several meetings in recent years to discuss state immunity legislation.Using this as an opportunity,this article analyzes the UN Convention,as well as the legislation and cases of the United Kingdom,the United States,and Australia in the field and reviews the latest developments in this field.In doing so,the article examines the stance China should adopt in the state immunity legislation,with regard to the subjects of jurisdictional immunity,as well as the two exceptions to state immunity,i.e.the state's participation in commercial transactions and the conclusion of an arbitration agreement.The article is divided into four parts.The first part reviews China's practice in the legislative and judicial fields.On this basis,it is proposed that the absolute immunity theory that China has always insisted on faces three challenges:changes in the legislative background,a greater degree of immunity enjoyed by a foreign state as a result of China's position,and a negative impact on the Chinese economy due to a legislative vacancy.The second part studies the subjects of state immunity.This part addresses three issues,including whether the concept of foreign state should include states that don't enjoy complete sovereignty,the scope of foreign state and whether the state immunity should be based on recognition.In the third chapter,the article focuses on two exceptions to state immunity:a state's participation in commercial transactions,or its willingness to conclude an arbitration agreement.For the first exception,the most element is to come up with a clear definition for a commercial transaction.The article,using cases,assesses the definition of a commercial transaction from the perspective of its nature or its possible instances,and the advantages and disadvantages of the two methods.When a foreign state chooses arbitration to settle the dispute between it and a private party,this can form the basis on which a count may refuse to grant it state immunity.The article focuses on two topics.Should there be conditions for this exception?What would be the influence of interim measures on the exception?In the fourth part,the article proposes that legislation should be carried out on state immunity and two factors that should be considered in legislation are discussed:the international obligations of China and the principle of reciprocity in legislation.In the end,based on the previous analysis and discussion,this paper proposes legislative suggestions for an state immunity act in China.