Syria’s threats yesterday to deploy chemical weapons against foreign invaders demonstrates the Syrian regime’s disregard for international law and the customs of civilized nations. The world first came together in 1925 to condemn the use of chemical weapons in adopting the Geneva Gas Protocol. On 29 April 1997, the Chemical Weapons Convention entered into force, complementing the Geneva Gas Protocol, but much more aggressively prohibiting the use of all chemical weapons as a method of warfare.
The Chemical Weapons Convention, which applies to both international and internal armed conflicts, has been adopted by nearly all of the civilized world. As of 2012, all but the following six nations have either signed or ratified the Convention: Angola, Egypt, North Korea, Somalia, South Sudan and Syria.
While Syria is not a State party to the Convention, the Convention has become so widely accepted as a standard of the law of war that one can argue that it has become binding as customary international law, comprised of consistent and recurrent state practice developed over time and undertaken out of a sense of legal obligation.
While Syria can argue that through its reservations, it is not bound by the Convention, a stronger argument can be made that the prohibition on the use of chemical weapons rises to the level of jus cogens, or non-derogable peremptory legal norms. Either way, Syria, by threatening to use chemical weapons, shows that it is acting outside the accepted practices of civilized nations.
Tuesday, July 24, 2012
Sunday, July 15, 2012
Open Letter to the President of the United States
July 14, 2012
The Honorable Barack Obama
President of the United States of America
The White House
1600 Pennsylvania Ave. NW
Washington, D.C. 20500
Dear Mr. President:
As a member of the Syrian-American Diasporan community, I wish to convey to you my grave concerns about the massacres ongoing in Syria. As the world's sole remaining superpower, the United States has a special duty to protect the people of Syria from mass murder at the hands of their government.
The United States has been leading diplomatic efforts and calls for regime change, but Assad’s unwillingness to relinquish power has made it clear that regime change through a military intervention is the only way forward. We cannot wait for Russia to consent to a military intervention.
In 1999, our intervention in Kosovo was both legal and morally legitimate under international law, despite a Russian veto at the Security Council. Later Security Council resolutions confirmed this point.
We similarly have a responsibility to protect the Syrian people from egregious acts of violence at the hands of their State, despite Russia's objections and economic ties to Assad's regime. We must move forward and leave Russia behind on the wrong side of history.
It is my hope that we do not repeat our inaction during the Rwanda massacres of the 1990s, and that we will act on our responsibility to protect innocent civilians from egregious violations of international law at the hands of their State.
Sincerely,
John Balouziyeh
The Honorable Barack Obama
President of the United States of America
The White House
1600 Pennsylvania Ave. NW
Washington, D.C. 20500
Dear Mr. President:
As a member of the Syrian-American Diasporan community, I wish to convey to you my grave concerns about the massacres ongoing in Syria. As the world's sole remaining superpower, the United States has a special duty to protect the people of Syria from mass murder at the hands of their government.
The United States has been leading diplomatic efforts and calls for regime change, but Assad’s unwillingness to relinquish power has made it clear that regime change through a military intervention is the only way forward. We cannot wait for Russia to consent to a military intervention.
In 1999, our intervention in Kosovo was both legal and morally legitimate under international law, despite a Russian veto at the Security Council. Later Security Council resolutions confirmed this point.
We similarly have a responsibility to protect the Syrian people from egregious acts of violence at the hands of their State, despite Russia's objections and economic ties to Assad's regime. We must move forward and leave Russia behind on the wrong side of history.
It is my hope that we do not repeat our inaction during the Rwanda massacres of the 1990s, and that we will act on our responsibility to protect innocent civilians from egregious violations of international law at the hands of their State.
Sincerely,
John Balouziyeh
Saturday, July 14, 2012
United States Senator John McCain's reply to my Open Letter to Congress advocating a military intervention in Syria
July 12, 2012
Dear Mr. Balouziyeh:
Thank you for contacting me regarding the recent events in Syria. I appreciate hearing from you on this important issue.
In recent months, Syria has undergone a wave of revolutionary protests demanding democratic reform and an end to the Assad regime. Rather than addressing these legitimate concerns, Bashar al Assad deployed military forces to crush peaceful demonstrations and unjustly imprison thousands of protestors. As a result, it is estimated that more than 9,000 people have been killed thus far. And there is no end in sight to the slaughter.
From the beginning, I have paid close attention to the rapidly deteriorating situation on the ground. I was one of the first to call for democratic reform and an end to the Assad regime. Additionally, I was one of the original cosponsors of a bipartisan resolution calling for universal freedoms in Syria and an end to the human rights violations. I agree with President Obama’s decision to impose sanctions on Bashar al Assad and other top Syrian officials.
However, despite these and other good measures to pressure Assad to stop the killing and leave power, his campaign of violence is only escalating. It is therefore clear to me that the negotiated transition and peaceful settlement we all seek will only be possible by changing the military balance of power on the ground against Assad. That is why I have advocated providing opposition fighters in Syria with the means to defend themselves, to establish “safe zones” to protect civilians, and to take necessary steps to defend those areas, including through the use of foreign airpower.
The departure of Assad from power would bring an end to a regime in Syria that has slaughtered its own people, occupied and destabilized Lebanon, funded and armed terrorist groups like Hezbollah and Hamas, assisted foreign fighters in their journey to Iraq to kill American troops during the war, and which has for decades served as the forward operating base of the Iranian regime in the Arab world. Indeed as General Mattis, the Commander of U.S. Central Command, recently testified to the Senate Armed Services Committee, the fall of the Assad regime in Syria would represent “the biggest strategic setback for Iran in 25 years.” This is a goal that is strongly in the U.S. national security interest, and we must do everything we can to achieve it.
Once again, thank you for writing me on this very important issue. Please be assured that I will continue to monitor the situation in Syria very closely and will keep your concerns in mind as we move forward.
Sincerely,
John McCain
United States Senator
JM/el
Friday, July 6, 2012
An Open Letter to Congress to Intervene in Syria
Following is a letter that I had sent to every United States Senator last week, advocating military intervention in Syria. This week, I had it sent to members of President Obama's administration. I ask every reader who agrees with my message to send this letter to your elected representatives. The time is now for our nation to assume its position of leadership and undertake to end the ongoing humanitarian crisis in Syria.
June 29, 2012
Honorable Senator
United States Senate
Washington, DC 20510
Dear Mr. Senator:
Over the past sixteen months, the people of Syria have risen up against a regime that for over four decades has denied its people basic rights and freedoms. In response to demonstrations and protests, the regime of President Bashar al-Assad has reacted with overwhelming force to crush an opposition movement, giving way to nearly sixteen thousand victims to date.
According to the United Nations Supervision Mission in Syria, Syrian state agents have violated various provisions of international humanitarian law, failed to distinguish between the civilian population and combatants, and failed to exercise proportionality with respect to civilian losses. International agencies such as the Red Cross and Red Crescent were, for too long, denied access to attend to the victims of the violence. Doctors without Borders states that the Syrian government continues to deny basic medical care to injured civilians.
The international community has given the Assad regime time, but in this time, Assad has only hardened his attitude. Reports have emerged from Reuters and the AFP of systematic acts of violence against civilians at the hands of the Assad regime. The United Nations-appointed Independent International Commission of Inquiry on the Syrian Arab Republic has reported that the government of Syria is responsible for “crimes against humanity of murder, torture, rape or other forms of sexual violence of comparable gravity, imprisonment or other severe deprivation of liberty, enforced disappearances of persons and other inhumane acts of a similar character.”
It has now become evident that diplomacy and negotiation have failed. Given Assad’s unwillingness to relinquish power, regime change through a military intervention is the only way forward. The United States cannot wait for Russia’s consent to collective security action under the United Nations Charter. Given Russia’s objection to the use of force, the international community, led by the United States, must act on its moral responsibility to protect Syrians.
This moral responsibility is rooted in international law. Under the responsibility to protect doctrine, the international community has a duty to intervene when a people suffers from egregious acts of violence at the hands of their State. The International Covenant on Civil and Political Rights further requires States to ensure the protection of the right to life, prohibitions on torture, and freedom of thought and expression, all of which have been violated by the Syrian regime. Whether through a community of like-minded States or through the United Nations, the United States must assume its position of leadership in defending these rights.
That the United States has passively deferred to Russia on Syria is concerning on several fronts. First, Russia’s objections to an intervention neglect a responsibility to defend international security and peace, one that Russia, as a permanent member of the United Nations Security Council, has a special duty to uphold. Second, Russia’s insistence on non-intervention is hypocritical in light of Russia’s Syria-bound shipments of attack helicopters, anti-aircraft weapons, and warships. With regiments of Russian marines and heavy weaponry being carried on such ships and Russia’s economic interest in supplying arms to Syria, the pretext of protecting Russian citizens in Syria is hardly convincing. Because Russia’s interest in armaments sales to the Syrian regime conflicts with its interest in resolving the Syrian conflict, Russian leadership on Syria lacks credibility.
In 1999, the world stood at the crossroads of a similar humanitarian intervention. Permanent members of the United Nations Security Council locked horns on the crisis in Kosovo. Despite a Russian veto, NATO undertook military action, and most observers now agree that NATO’s actions were legitimate and justified under international law.
When the events of the Syrian liberation are recounted in history, the countries that stood in silence with Russia will be judged with blood on their hands. The nations that acted to defend the Syrian people will be vindicated. Will America sit in silence as Russia protects Assad’s slaughter of the Syrian people, or will it hasten the fall of the Assad regime?
The time is now for military action to accelerate regime change. The United States, together with a coalition of allies including Great Britain, France, and Turkey, must make a clear ultimatum to Assad: he may step down now in exchange for immunity, or otherwise face consequences in the form of military action, including air strikes to neutralize Syrian intelligence and strategic bases; the establishment of a no-fly zone; safe havens in Syria and at the Turkish border; material support to the opposition in the form of armaments and other military equipment; and a media war against the Syrian regime with an aim to induce mass defections.
Given concerns prevailing as to the landscape of post-Assad Syria, Washington can condition its military support to the opposition on commitments by the Free Syrian Army and the Syrian National Council to guarantee the rights of minorities and establish a power-sharing model under the new Constitution, where Sunni Muslims as well as Alawi and Christian minorities share power and guarantee the respect for the rule of law.
With the support of a coalition of liked-minded nations, American action in Syria need not be unilateral. Yet the international community will not act until the United States assumes its position of world leadership.
Sincerely,
John M. B. Balouziyeh, Esq.
June 29, 2012
Honorable Senator
United States Senate
Washington, DC 20510
Dear Mr. Senator:
Over the past sixteen months, the people of Syria have risen up against a regime that for over four decades has denied its people basic rights and freedoms. In response to demonstrations and protests, the regime of President Bashar al-Assad has reacted with overwhelming force to crush an opposition movement, giving way to nearly sixteen thousand victims to date.
According to the United Nations Supervision Mission in Syria, Syrian state agents have violated various provisions of international humanitarian law, failed to distinguish between the civilian population and combatants, and failed to exercise proportionality with respect to civilian losses. International agencies such as the Red Cross and Red Crescent were, for too long, denied access to attend to the victims of the violence. Doctors without Borders states that the Syrian government continues to deny basic medical care to injured civilians.
The international community has given the Assad regime time, but in this time, Assad has only hardened his attitude. Reports have emerged from Reuters and the AFP of systematic acts of violence against civilians at the hands of the Assad regime. The United Nations-appointed Independent International Commission of Inquiry on the Syrian Arab Republic has reported that the government of Syria is responsible for “crimes against humanity of murder, torture, rape or other forms of sexual violence of comparable gravity, imprisonment or other severe deprivation of liberty, enforced disappearances of persons and other inhumane acts of a similar character.”
It has now become evident that diplomacy and negotiation have failed. Given Assad’s unwillingness to relinquish power, regime change through a military intervention is the only way forward. The United States cannot wait for Russia’s consent to collective security action under the United Nations Charter. Given Russia’s objection to the use of force, the international community, led by the United States, must act on its moral responsibility to protect Syrians.
This moral responsibility is rooted in international law. Under the responsibility to protect doctrine, the international community has a duty to intervene when a people suffers from egregious acts of violence at the hands of their State. The International Covenant on Civil and Political Rights further requires States to ensure the protection of the right to life, prohibitions on torture, and freedom of thought and expression, all of which have been violated by the Syrian regime. Whether through a community of like-minded States or through the United Nations, the United States must assume its position of leadership in defending these rights.
That the United States has passively deferred to Russia on Syria is concerning on several fronts. First, Russia’s objections to an intervention neglect a responsibility to defend international security and peace, one that Russia, as a permanent member of the United Nations Security Council, has a special duty to uphold. Second, Russia’s insistence on non-intervention is hypocritical in light of Russia’s Syria-bound shipments of attack helicopters, anti-aircraft weapons, and warships. With regiments of Russian marines and heavy weaponry being carried on such ships and Russia’s economic interest in supplying arms to Syria, the pretext of protecting Russian citizens in Syria is hardly convincing. Because Russia’s interest in armaments sales to the Syrian regime conflicts with its interest in resolving the Syrian conflict, Russian leadership on Syria lacks credibility.
In 1999, the world stood at the crossroads of a similar humanitarian intervention. Permanent members of the United Nations Security Council locked horns on the crisis in Kosovo. Despite a Russian veto, NATO undertook military action, and most observers now agree that NATO’s actions were legitimate and justified under international law.
When the events of the Syrian liberation are recounted in history, the countries that stood in silence with Russia will be judged with blood on their hands. The nations that acted to defend the Syrian people will be vindicated. Will America sit in silence as Russia protects Assad’s slaughter of the Syrian people, or will it hasten the fall of the Assad regime?
The time is now for military action to accelerate regime change. The United States, together with a coalition of allies including Great Britain, France, and Turkey, must make a clear ultimatum to Assad: he may step down now in exchange for immunity, or otherwise face consequences in the form of military action, including air strikes to neutralize Syrian intelligence and strategic bases; the establishment of a no-fly zone; safe havens in Syria and at the Turkish border; material support to the opposition in the form of armaments and other military equipment; and a media war against the Syrian regime with an aim to induce mass defections.
Given concerns prevailing as to the landscape of post-Assad Syria, Washington can condition its military support to the opposition on commitments by the Free Syrian Army and the Syrian National Council to guarantee the rights of minorities and establish a power-sharing model under the new Constitution, where Sunni Muslims as well as Alawi and Christian minorities share power and guarantee the respect for the rule of law.
With the support of a coalition of liked-minded nations, American action in Syria need not be unilateral. Yet the international community will not act until the United States assumes its position of world leadership.
Sincerely,
John M. B. Balouziyeh, Esq.
Wednesday, June 27, 2012
الخصوصية واعتراض البيانات المعلوماتية في المملكة العربية السعودية
إن أنظمة المملكة العربية السعودية المتعلقة بالبيانات المعلوماتية مبنية على النظام الأساسي للحكم في المملكة العربية السعودية، حيث نجد أن النظام الأساسي للحكم يتطرق إلى موضوع الخصوصية كحق يتمحور حول كرامة الإنسان. فهو يصون، على سبيل المثال، المراسلات البرقية والبريدية والمخابرات الهاتفية وغيرها من وسائل الاتصال، ويحظر، فيما يحظره من أشياء، الإطلاع عليها أو الاستماع إليها إلا في الحالات التي يبينها النظام. [المادة 40 من النظام الأساسي للحكم].
وفي هذا الإطار، وانطلاقاً من مبادئ الشريعة الإسلامية التي رسخت قاعدة المسئولية التقصيرية عن الأضرار الناشئة عن الإفصاح غير القانوني عن المعلومات الشخصية الخاصة بالأفراد، فقد ركز المشرع السعودي على انتهاكات الخصوصية المتعلقة بالاتصالات وتقنية المعلومات.
فعلى سبيل المثال، نجد أن نظام الاتصالات الصادر بقرار مجلس الوزراء رقم 74 وتاريخ 5/3/1422 يحظر على مزودي خدمات الانترنت وشركات الاتصالات التقاط أي مكالمات هاتفية أو معلومات منقولة خلال شبكات الاتصالات العامة [الفقرة 7 من المادة 37]، أو تعمد الكشف – خارج نطاق الواجب – عن أي معلومات أو محتويات أي رسالة تم اعتراضها خلال إرسالها [الفقرة 13 من المادة 37]. ومن ناحية ثانية، نجد أن النظام يفرض عقوبات قد تصل إلى 5 مليون ريال سعودي (أي ما يعادل 1,3 مليون دولار أمريكي).
وفي السياق نفسه، نجد أيضا أن نظام مكافحة جرائم المعلوماتية الصادر بالمرسوم الملكي الكريم رقم م/17 وتاريخ 7/3/1428 هـ [الموافق 26/3/2007 م] يفرض عقوبات مدنية وجنائية مشددة على انتهاك سرية البيانات الشخصية وبما يشتمل على اعتراض البيانات المرسلة عن طريق الشبكة المعلوماتية دون مسوغ نظامي، أو الدخول غير المشروع إلى البيانات أو الكمبيوترات البنكية بغرض تعديل البيانات الشخصية أو مسحها أو إتلافها أو إعادة توزيعها. وقد تصل هذه العقوبات إلى 3,000,000 ريال سعودي مع السجن لمدة أربع سنوات. [المواد 3 إلى 5].
إن أنظمة حماية البيانات المعلوماتية في المملكة العربية السعودية هي أنظمة جديدة نسبيا، وهي آخذة بالنمو والتطور. وإن هذه الأنظمة تعبر عن الاعتراف العالمي المتنامي بأهمية ضبط البيانات المعلوماتية الخاصة في هذا العصر الرقمي، الأمر الذي يجب أن تدركه جميع المؤسسات المالكة لهذه البيانات.
Saturday, February 25, 2012
Examining China and Russia’s Claims on Intervention in Syria in Light of International Law
After vetoing a UN resolution aimed at stopping the bloodshed in Syria , China and Russia have refused to attend the Friends of Syria meeting in Tunis or take sides in Syria
China and Russia
a) Collective security measures
Chapter VII of the UN Charter permits two exceptions to the principle of non-interference; the use of force is permitted when acting pursuant to: (i) UN collective security measures (arts. 42 CUN); and (ii) self-defense (art. 51 CUN). As discussed below, the first exception applies toSyria
b) The mandate to intervene in internal armed conflicts under theGeneva
Taking into account the experience of the Second World War, where civilians were systematically targeted in both internal as well as international conflicts, the international community in 1949 revised the three Geneva Conventions and adopted a fourth Geneva Convention to provide for the protection of civilians from the consequences of war. The results were the four 1949 Geneva Conventions that today deal with the treatment and protection of persons—both combatants and civilians—during armed conflict.
Several international legal instruments create an affirmative duty to act when life and basic fundamental freedoms are threatened. For example, the Genocide Convention requires not only that its 140 states parties refrain from the crime of genocide, but also that they “undertake to prevent and to punish” genocide (Art. I CPPG) and further pledge “to grant extradition in accordance with their laws and treaties in force” of persons charged with genocide (Art. VII CPPG). The International Court of Justice thus found in the Bosnian Genocide Case (Bosnia and Herzegovina v. Serbia and Montenegro) (2007) that Belgrade breached international law not by committing genocide, but by failing to prevent it.
b) The International Covenant on Civil and Political Rights
States parties to the International Covenant on Civil and Political Rights (1976) (ICCPR) undertake to protect the wide range of civil and political rights, including a right to life (art. 6 ICCPR), prohibitions on torture (art. 7 ICCPR) and arbitrary arrest or detention (art. 9.1 ICCPR), a right to trial within a reasonable time of arrest or detainment (art. 9.3 ICCPR) and to freedom of thought, conscience and religion (art. 18 ICCPR), as well as freedom of expression (art. 19 ICCPR).
Russia China Vienna China ’s signing the treaty and the ratification thereof, it may not undertake any actions that defeat the object and purpose of the treaty (see art. 18 Vienna
Russia and China
1. The principle of non-interference in the internal affairs of states
2. The principle of non-interference is not absolute
In light of the CUN’s provisions on collective security measures, international humanitarian law, and the affirmative duty to act created under various international conventions, the principle of non-interference is not absolute and must be weighed against the duty of states to protect life and uphold fundamental liberties.a) Collective security measures
Chapter VII of the UN Charter permits two exceptions to the principle of non-interference; the use of force is permitted when acting pursuant to: (i) UN collective security measures (arts. 42 CUN); and (ii) self-defense (art. 51 CUN). As discussed below, the first exception applies to
The Security Council may employ the use of force in order to secure peace. If the Security Council determines the existence of any threat to or breach of the peace or act of aggression, it is to make recommendations or decide what measures are to be taken to maintain or restore peace (art. 39 CUN). In order to prevent an aggravation of the situation, the Security Council may decide what measures not involving the use of armed force (e.g., sanctions, the severance of diplomatic relations, etc.) are to be employed (art. 41 CUN). However, if these measures are inadequate or ineffective, the SC may take military action “by air, sea, or land forces as may be necessary to maintain or restore international peace and security” (art. 42 CUN). This represents the first important exception to the principle of non-interference.
b) The mandate to intervene in internal armed conflicts under the
Taking into account the experience of the Second World War, where civilians were systematically targeted in both internal as well as international conflicts, the international community in 1949 revised the three Geneva Conventions and adopted a fourth Geneva Convention to provide for the protection of civilians from the consequences of war. The results were the four 1949 Geneva Conventions that today deal with the treatment and protection of persons—both combatants and civilians—during armed conflict.
The Geneva Conventions also codify the rules of engagement in non-international (internal) armed conflict. Common article 3 (common to the four Geneva Conventions) is the first express codification of law for non-international armed conflicts, such as civil wars and civil insurrections. Common article 3 establishes fundamental rules from which no derogation is permitted and whose violation gives rise to individual rather than state liability. It contains the essential rules of the Geneva Conventions as applied to conflicts of a domestic (internal) character and applies to all non-combatants, including soldiers who have “laid down their arms” (surrendered) or those placed hors de combat due to injury or sickness.
Common article 3 requires that the wounded and the sick be collected and cared for and grants the International Committee of the Red Cross and other impartial humanitarian bodies the right to offer their services to the parties to the conflict. It calls on the parties to the conflict to endeavor to bring all or parts of the Geneva Conventions into force through special agreements and recognizes that the application of these rules does not affect the legal status of the parties to the conflict (art. 3(2) GC III).
Evidence of Syria’s violation of the provisions of common article 3, including but not limited to its failure to allow humanitarian aid reach the wounded and the sick and government shelling of civilian objects and neighborhoods, puts the UN Security Council in a position in which it may take measures to restore peace and enforce international law, including ordering the use of force through taking military action “as may be necessary to maintain or restore international peace” (art. 42 CUN).
3. The affirmative duty to act under international law
a) OverviewSeveral international legal instruments create an affirmative duty to act when life and basic fundamental freedoms are threatened. For example, the Genocide Convention requires not only that its 140 states parties refrain from the crime of genocide, but also that they “undertake to prevent and to punish” genocide (Art. I CPPG) and further pledge “to grant extradition in accordance with their laws and treaties in force” of persons charged with genocide (Art. VII CPPG). The International Court of Justice thus found in the Bosnian Genocide Case (Bosnia and Herzegovina v. Serbia and Montenegro) (2007) that Belgrade breached international law not by committing genocide, but by failing to prevent it.
While the Genocide Convention may not apply to Syria
b) The International Covenant on Civil and Political Rights
States parties to the International Covenant on Civil and Political Rights (1976) (ICCPR) undertake to protect the wide range of civil and political rights, including a right to life (art. 6 ICCPR), prohibitions on torture (art. 7 ICCPR) and arbitrary arrest or detention (art. 9.1 ICCPR), a right to trial within a reasonable time of arrest or detainment (art. 9.3 ICCPR) and to freedom of thought, conscience and religion (art. 18 ICCPR), as well as freedom of expression (art. 19 ICCPR).
If reports of the International Committee of the Red Cross, the UN, the Arab League and European countries and the US are true, then Syria
4. Conclusion
If reports of violence against civilians at the hands of the Syrian regime are supported by sufficient evidence, it would be unfitting forThursday, September 29, 2011
Landmark Congo Decision May Hinder Enforcement of Arbitral Awards in Hong Kong Against Sovereign States
It was recently reported that the Hong Kong Court of Final Appeal handed down a controversial judgment holding that the Democratic Republic of Congo (DRC) enjoyed an absolute right of immunity, despite what appeared to be an express waiver of immunity in the agreements signed by the DRC (click here for the full story).
SNR Denton reports the following background information: “Post 1997, Hong Kong has been in something of a quandary with regard to the issue of sovereign state immunity. On the one hand, the pre-1997 Common Law in Hong Kong acknowledged the doctrine of restrictive state immunity, that is, that a state could be sued when it has engaged in purely commercial transactions. On the other hand, the position in the People's Republic of China [PRC] has been consistent and unequivocal: Sovereign states enjoy absolute immunity from domestic courts of another sovereign state, the only exception being where the defendant state waives immunity before the forum state.”
On August 26, 2011, this dilemma came to the fore in the case Democratic Republic of the Congo v. FG Hemisphere Associates, which involves an attempt by US-based investment fund FG Hemisphere Associates to enforce arbitral awards against Hong Kong-based assets of the DRC. In June, the Hong Kong Court of Final Appeal, in a controversial judgment overturning the Court of Appeal, came to the view that the DRC enjoyed an absolute right of immunity, notwithstanding what appeared to be an express waiver of immunity in the agreements signed by the DRC. The Court then referred the matter to the Standing Committee of the National People’s Congress, which affirmed the Court’s conclusion: the DRC enjoys absolute immunity from the domestic courts of Hong Kong, the only exception being where the DRC waives immunity.
The challenges that this decision poses to investors applies not only when dealing with states holding assets in Hong Kong, but also when assets are being held anywhere in mainland China. Because the Standing Committee of the National People’s Congress affirmed the CFA’s ruling, it would presumably similarly instruct courts located anywhere on mainland China to dismiss suits brought against sovereign states for the enforcement of arbitral awards when such states protest the jurisdiction of the courts of the PRC, regardless of what agreements the states have signed.
This is negative news for companies doing business with states (or state agencies). It likely means states could protect all of their funds and other assets in Hong Kong and mainland China and then sign whatever waivers as to sovereign immunity they wish, but when it comes to enforcing judgments awarded against them, simply not pay out refuse the jurisdiction of the courts of mainland China and Hong Kong at the hour of enforcement. The courts of China and Hong Kong will then dismiss the matters, given their policy of absolute sovereign immunity. Investors should be aware that, if a state does not pay out its judgment willingly, going to Hong Kong or mainland China for enforcement will bear little fruit.
The DRC is not a state party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which requires courts of contracting states to recognize and enforce arbitral awards made in other contracting states. Yet even if it were, it appears that the outcome of Democratic Republic of the Congo v. FG Hemisphere Associates would not have been different, since the Standing Committee of the National People’s Congress based its decision on a public policy view recognizing absolute sovereign immunity, the only exception being when a defendant state waives immunity before a foreign state’s courts, and under Art. 5(2)(b) of the New York Convention, a state my refuse to enforce a foreign arbitral award if doing so contravenes its public policy.
For these reasons, this decision should raise concerns for companies doing business with states holding assets in Hong Kong and mainland China. Should such companies ever wish to enforce a judgment against such assets, they will face the same challenges that FG Hemisphere Associates confronted.
SNR Denton reports the following background information: “Post 1997, Hong Kong has been in something of a quandary with regard to the issue of sovereign state immunity. On the one hand, the pre-1997 Common Law in Hong Kong acknowledged the doctrine of restrictive state immunity, that is, that a state could be sued when it has engaged in purely commercial transactions. On the other hand, the position in the People's Republic of China [PRC] has been consistent and unequivocal: Sovereign states enjoy absolute immunity from domestic courts of another sovereign state, the only exception being where the defendant state waives immunity before the forum state.”
On August 26, 2011, this dilemma came to the fore in the case Democratic Republic of the Congo v. FG Hemisphere Associates, which involves an attempt by US-based investment fund FG Hemisphere Associates to enforce arbitral awards against Hong Kong-based assets of the DRC. In June, the Hong Kong Court of Final Appeal, in a controversial judgment overturning the Court of Appeal, came to the view that the DRC enjoyed an absolute right of immunity, notwithstanding what appeared to be an express waiver of immunity in the agreements signed by the DRC. The Court then referred the matter to the Standing Committee of the National People’s Congress, which affirmed the Court’s conclusion: the DRC enjoys absolute immunity from the domestic courts of Hong Kong, the only exception being where the DRC waives immunity.
The challenges that this decision poses to investors applies not only when dealing with states holding assets in Hong Kong, but also when assets are being held anywhere in mainland China. Because the Standing Committee of the National People’s Congress affirmed the CFA’s ruling, it would presumably similarly instruct courts located anywhere on mainland China to dismiss suits brought against sovereign states for the enforcement of arbitral awards when such states protest the jurisdiction of the courts of the PRC, regardless of what agreements the states have signed.
This is negative news for companies doing business with states (or state agencies). It likely means states could protect all of their funds and other assets in Hong Kong and mainland China and then sign whatever waivers as to sovereign immunity they wish, but when it comes to enforcing judgments awarded against them, simply not pay out refuse the jurisdiction of the courts of mainland China and Hong Kong at the hour of enforcement. The courts of China and Hong Kong will then dismiss the matters, given their policy of absolute sovereign immunity. Investors should be aware that, if a state does not pay out its judgment willingly, going to Hong Kong or mainland China for enforcement will bear little fruit.
The DRC is not a state party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which requires courts of contracting states to recognize and enforce arbitral awards made in other contracting states. Yet even if it were, it appears that the outcome of Democratic Republic of the Congo v. FG Hemisphere Associates would not have been different, since the Standing Committee of the National People’s Congress based its decision on a public policy view recognizing absolute sovereign immunity, the only exception being when a defendant state waives immunity before a foreign state’s courts, and under Art. 5(2)(b) of the New York Convention, a state my refuse to enforce a foreign arbitral award if doing so contravenes its public policy.
For these reasons, this decision should raise concerns for companies doing business with states holding assets in Hong Kong and mainland China. Should such companies ever wish to enforce a judgment against such assets, they will face the same challenges that FG Hemisphere Associates confronted.
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