On the State Immunity of Foreign Central Bank Assets and Confiscation and Collective Countermeasures by the Other States
In recent years,confiscation of foreign central bank assets on the grounds of collective countermeasures(third-party countermeasures)has become a hot topic in the interna-tional law community.This issue involves three sub-issues:(1)to what extent foreign central bank assets enjoy state immunity;(2)whether there is a rule of customary international law al-lowing third-party other than the injured state to take collective countermeasures against the re-sponsible state;and(3)whether the confiscation of foreign central bank assets is in accordance with international law,especially the countermeasures rules.Under customary international law,foreign central bank assets enjoy the protection of state immunity and are especially im-mune from jurisdiction,freezing,confiscation,and various forms of coercive measures by other states.Confiscation of foreign central bank assets is prohibited unless the two states are in a state of war or armed conflict and then only in case of imperative military necessity.The collec-tive countermeasures rules drafted by James Crawford,a member and special rapporteur of the United Nations International Law Commission,were opposed not only by Ian Brownlie and other members of the Commission but also by developing countries represented by China and devel-oped countries represented by the United Kingdom and Japan.In the end,the drafted collective countermeasures rules were deleted,and The Draft Articles on Responsibility of States for Inter-nationally Wrongful Acts do not provide for the right of states other than the injured state to take collective countermeasures.The existence of a rule of customary international law can be con-firmed only when there is evidence of both"general practice"and"opinio juris".The state practice of collective countermeasures(if any)is very limited,and states and organizations that adopt sanctions against other states do not regard their sanctions as collective countermeasures.Therefore,there is no basis for claiming that collective countermeasure is a rule of customary in-ternational law.The prohibition of the unlawful use of force is an erga omnes obligation,but the obligation of the responsible state to pay compensation to the injured state is not.Other states have no right to take collective countermeasures against the responsible state on the grounds that the responsible state has not compensated the injured state.Since World War Ⅱ,there has been no state practice of confiscating property of non-belligerent states as a countermeasure.Confis-cation of foreign central bank assets or their proceeds on the grounds of so-called collective countermeasures permanently changes the ownership of foreign central bank assets,violates the principles of state immunity and the law of international responsibility,which requires that the countermeasures must be"temporary in character"and must be"as far as possible reversible in their effects",and undermines the international rule of law.
万方数据
维普
