Chinese lawmakers voted to adopt a foreign state immunity law, marking a pivotal moment in the country’s ongoing efforts to enhance its legal framework in matters related to foreign affairs. This decision was made during a session of the National People’s Congress (NPC) Standing Committee and is scheduled to take effect on January 1, 2024.
The new law comprises 23 provisions and signifies a shift away from the absolute theory of foreign state immunity to embrace the restrictive theory of foreign state immunity. This transition has been described as a “necessary adjustment” to China’s sovereign immunity policy by an official from the Legislative Affairs Commission of the NPC Standing Committee.
The primary objectives behind this legislation are to safeguard the legitimate rights and interests of Chinese citizens and legal entities while upholding China’s sovereignty, security, and development interests. Furthermore, the law seeks to address existing legal gaps and expedite the refinement of China’s foreign affairs-related legal framework.
The key foundation of the foreign state immunity law lies in its general principles, explicitly stated as follows: “Unless otherwise provided for by this law, foreign states and their property shall be immune from the jurisdiction of the courts of the People’s Republic of China.” This principle sets the baseline for the law’s application.
The law also outlines the specific circumstances under which Chinese courts will be permitted to exercise jurisdiction over foreign states and their property. Importantly, these provisions align with established international treaties and norms, ensuring compliance with global legal standards.
It is essential to recognize that China’s foreign state immunity policy is rooted in the principle of sovereign equality among states. It is fundamentally distinct from the concept of long-arm jurisdiction exercised by some other countries, emphasizing China’s commitment to respecting the sovereignty of foreign nations.
One notable feature of the law is the principle of reciprocity in state immunity. This means that if a foreign state grants immunity to the People’s Republic of China and its property in a manner inferior to what is prescribed by this law, China reserves the right to apply the principle of reciprocity. In practical terms, this enables China to respond in kind when dealing with foreign states’ actions related to immunity.
Furthermore, if a foreign state were to abolish, restrict, or downgrade the immunity previously granted to China, China would have the authority to take necessary countermeasures in accordance with the principle of reciprocity. This provision underlines the law’s commitment to ensuring a balanced and fair approach to state immunity in international affairs.
After the law is enacted, it is expected that the Hong Kong and Macao special administrative regions will be required to align with the central people’s government by adopting the state immunity rules and policies specified in the law. This move is intended to create a cohesive and consistent approach to state immunity across all regions of China.
The adoption of the foreign state immunity law by Chinese lawmakers represents a significant step towards bolstering the country’s legal framework in matters related to foreign affairs. By embracing the principles of reciprocity and respecting the sovereignty of other states, China aims to contribute to a more equitable and stable international legal landscape. This legislation reflects China’s commitment to protecting its own interests while upholding international norms and treaties.