THE LEGAL APPRAISAL OF SOVEREIGN IMMUNITY UNDER CHINA’S SILK ROAD INITIATIVE AND CHINA’S ABSOLUTE IMMUNITY POSITION: THE DOUBLE STANDARDS QUAGMIRE

Abstract

The People’s Republic of China (China) emerged from a socialist background with a history of absolute immunity approach to sovereign immunity. By this, the traditional position of China on the issue of sovereign immunity was that under no circumstances would the immunity of a State or a sovereign be lifted even when such State had engaged in commercial transactions. Even the signing of the United Nations Convention on Jurisdictional Immunity of States and Their Properties by China did not change this position, as was demonstrated by subsequent judicial pronouncements in China. However, the introduction of the Silk Road Initiative by China in 2013 somewhat changed China’s approach on sovereign immunity as concerns legal relationship between China and countries participating in this initiative regarding the sovereign immunity of such countries. The initiative was aimed at powering infrastructural developments and investments in Europe, Asia and Africa by China. This situation had therefore created a hypocritical posture of China on the issue of sovereign immunity whereby China upheld absolute immunity theory at home but applied relative immunity theory under the Silk Road Initiative. This work aimed at examining the traditional absolute immunity approach of China vis a vis its sovereign immunity position under the Silk Road Initiative. The objectives of the research were to highlight the sovereign immunity sovereign immunity feature of the China’s Silk Road Initiative, and to determine its consonance with China’s traditional position on sovereign immunity. The method employed in this research was a doctrinal method which involved reference to primary authorities such as case laws as well as secondary sources like relevant law text books, journal articles and online materials. It was found that while China traditionally upheld the absolute immunity doctrine, in practice, it employed the relative immunity theory in its Silk Road Initiative as a way of preventing the invocation of sovereign immunity by States participating in initiative. This work recommended that China should take step to harmonise its sovereign immunity approach in order to eradicate inconsistent or hypocritical approach on the issue. This work recommended further that China should formally move to adopt the relative immunity approach to sovereign immunity in line with the global trend.