I. Basic Information
Li Zan, PhD, Associated Professor, graduated from Law School of Peking University, and got his doctoral degree in 2010. He is anassociate research fellow at the Department of Public International Law, Institute of International Law, Chinese Academy of Social Sciences(CASS) since 2013. He is also a professor at the Graduate School of CASS and the School of Law and Politics of University of CASS.
Professor Li’s research and teaching focus on the theory of public international law, the law of international organizations, cultures and international law, international human rights protection of the elderly and the old-age care in China. He has authored or edited more than 20 academic publications in international law, including 6 books and 14 articles. His representative works include the Jurisdictional Immunity of International Organizations(2013), the Application of International Treaties in Hong Kong (2010), etc.
II. Main Academic Viewpoints
1.Jurisdictional Immunity of International Organizations before Domestic Courts:Restriction and Balance. As international organizations (IOs) becoming increasingly active and their functions constantly expanding,they continue to wrestle internally with the questions of when they have immunity and how to realize it in domestic judicial proceedings. The subject of immunity of IOs has been on the agenda of ILC for 30 years as part of the study of ‘relations between states and international organizations’, but in 1992, ILC decided to put aside the consideration of the topic. In recent years, some scholars and ILC members began to rethink and call for continued deep going study of IO jurisdictional immunity. This study discusses the jurisdictional immunity of IOs, namely whether IOs have immunity and how to realize it in domestic judicial proceedings.
The study concentrates on the legality and legitimacy of IO jurisdictional immunity and proceeds in four parts: (i) defining the existing legal sources of IO jurisdictional immunity; (ii) exploring the functional limitations on such immunity; and (iii) analyzing the limitations on such immunity that exist via waivers of immunity and (iv) alternative dispute settlement mechanisms.
This study seeks to review IO jurisdictional immunity thoroughly to fill in existing gaps in scholarly attention and to assist practitioners who must regulate IO immunity via treaty or domestic legislation. To do so, this study makes two claims. First, it argues that IO jurisdictional immunity is a restrictive right of IOs. In doing so, it rejects as superfluous the view of scholars who insist that IOs deserve absolute jurisdictional immunity. This study finds this restrictive right to immunity is needed in order for IOs to function independently in the course of implementing their purposes without interference from member states. This “functional necessity test” for IO jurisdictional immunity can identify when immunity is required based on whether it would maintain an IO’s independence and protect its effective functioning. But this functional necessity for immunity is not unlimited, even if IOs themselves might desire absolute immunity. Just as states may be over-strict in denying IO’s jurisdictional immunity, IO immunity itself should be tailored to avoid overly interfering with the operation of a state’s legal system. Second, assuming functional necessity dictates a restrictive IO right to jurisdictional immunity, this study discusses in detail two modes for limiting IO immunity: the existence of compulsory waivers of immunity and remedial arrangements for private party claims via alternative dispute settlement mechanisms. Taken together, IO functional immunity, compulsory waivers of immunity, and alternative dispute settlement mechanisms provide an immunity regime that will protect the effective functioning of IOs without causing unreasonable damage to the sovereignty of states. The restriction and balance of IO jurisdictional immunity connect and influence each other. The restriction of IO jurisdictional immunity is useful and helpful to realize the balance of IO jurisdictional immunity, which is the reason and result of restricting the IO jurisdictional immunity.
2. Doctrine of International Law and Ways to Construct a community with shared future for mankind.International law is needed in the construction ofa community with shared future for mankind. In the process of globalization, the common interest of international society is continuously strengthened and become the material basis of the constructionof a community with shared future for mankind. The doctrine of International-Community-Orientation, which is based on but transcends sovereignty, is the ideological basis. The moral basis is the need to realize the international social justice and strikea balance between formal justice and substantive justice. In order to reduce the obstacles to communications among countries, the laws different countriesare developing towards convergence and becoming the domestic approach to the construction of a community with shared future for mankind. International law and international organizations have promoted and maintained the peace of world, but have failed realized the perpetual peace of the world. The international law should attach more importance to theconstructionof inner peace of human beings, whichis a newapproach to realizing the perpetual peace of the world and constructinga community with shared future for mankind. The peaceful rise of China based on the traditional Chinese culture and primary principles of international law is the unique contribution made by China to the construction of a community with shared future for mankind.