The Definition of Consent

The consent in State immunity, named as the subjective exception to immunity,²³⁸ refers to a foreign State submit to the national court‘s jurisdiction. In other words, a foreign State determines to disclaim its right to immunity. By its waiver, national courts may exercise their jurisdiction in proceedings against a foreign State.²³⁹

It is generally accepted that jurisdictional immunity is a right entitled to sovereign States by international customary law, so States may unilaterally waive this right before the court of another State. No matter whether giving consent or not, it is a

237 See: Roger O‘keefe, Christian J. Tams, The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary, Oxford University Press (2013), p. 175.

238 See: 黄进、杜焕芳：《国家及其财产管辖豁免立法的新发展》，2005年第6期。

239 See: Hazel Fox CMG QC, The Law of State Immunity, 2^nd edition, Oxford University Press (2008), p. 477.

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rational choice made by a State according to its own will, in a manner of speaking,

‗consent to jurisdiction‘ is a method for the State to perform its sovereignty. In view of this, ‗the obligation to refrain from subjecting another State to its jurisdiction is not an absolute obligation‘.²⁴⁰ Immunity is not an obligation but a right that can be waived.

By virtue of the function of consent, immunity has never been totally absolute.²⁴¹ Even in the period dominated by absolute immunity, the consent of States has always been a method of removing the block of immunity. Indeed, the ‗waiver of immunity‘

is very crucial for determining jurisdiction in the age of absolute immunity. The absolute doctrine of immunity holds that the ‗State‘ identity underlies the immunity, and all of the State conducts are sovereign, so national courts may exercise jurisdiction only with the consent of a defendant State. Under the circumstances, where there is no consent, there is no immunity.

However, the restrictive doctrine of immunity advocates inferring the sovereign identity from State conduct. If a State acts in the same manner as a private person, its conduct cannot be recognized as sovereign act, so it would not enjoy immunity before the courts of forum State. At this time, the court can impose the jurisdiction directly without the consent of a foreign State. That implies the consent is no longer a necessary avenue for the court of forum State to obtain its jurisdiction over a foreign State.

In fact, the importance of ‗consent‘ in the establishment of jurisdiction has been declining as a result of the universal recognition of restrictive immunity by the international community. In spite of this, the consent remains indispensible for the issue of State immunity, because (i) When sovereign acts of a foreign State involve in proceedings , the consent is still the only method of removing the bar of immunity; (ii) Even in the case where the act of a foreign State has been attributable to the commercial activity, the consent can effectively simplify the examination of the matter of fact for the courts in the course of determining its jurisdiction; (iv) a survey of the history of State immunity demonstrates that, the consent from a State‘s participation in commercial activities promotes the shift from the absolute doctrine to

240 See: International Law Commission, Commentary on Draft Articles on Jurisdictional Immunities of States and Their Property (1991), draft Article 5, para. 1.

241 See: Xiaodong Yang, State Immunity in International Law, Cambridge University Press (2012), p. 10.

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the restrictive doctrine was achieved.²⁴² At the very beginning, some national courts counted the participation in commercial activities of foreign States as an implied waiver of immunity; (iv) Even though in the frame of restrictive immunity, there are some ambiguities in distinction between sovereign and non-sovereign act, for instance whether a commercial transaction for the sovereign purpose can be attributed to sovereignty, the waiver of immunity is an important method of solving that intractable problem.

As a result of exercise of sovereign authority by States, consent must satisfy two conditions. On the one hand, consent should be in accordance with the principle of autonomy. Consent is a rational choice made by the State on the basis of the national will. That means whether a State has waived the jurisdictional immunity and to what extent it has consent to the jurisdiction is entirely a matter for its own discretion.

Based on the principle of sovereignty equality, the national courts should not offend the sovereign immunity reserved by a foreign State, so they are required of determining their jurisdictional scope by the genuine consent meaning of the foreign State.

On the other hand, the consent must be clear and specific. Indeed, consent may be delivered in different forms, such as expressing consent, instituting or taking part in a proceeding, but no matter what forms a foreign State adopted should convey a definite intention of waiving the immunity. ‗The waiver of immunity can be either express or implied, but must be definite.‘²⁴³ Otherwise, it should not be regarded as consent. For example, the Article 7 (2) of the UN Convention provides that,

―Agreement by a State for the application of the law of another State shall not be interpreted as consent to the exercise of jurisdiction by the courts of that other State.‖

Also, the Article 8 (3) of the UN Convention provides that,

―The appearance of a representative of a State before a court of another State as a witness shall not be interpreted as consent by the former State to the exercise of jurisdiction by the court.‖

The meaning of consent to jurisdiction should be made in a specific proceeding. A State expressly adopts restrictive immunity in its legislation, which proves that it

242 See: Hazel Fox CMG QC, The Law of State Immunity, 2^nd edition, Oxford University Press (2008), p. 477.

243 龚刃韧：《国家豁免问题的比较研究》，北京大学出版社2005年版，第168页。

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endorses the inadmissibility of jurisdictional immunity in the field of commercial transactions. However, once the State becomes a defendant in a proceeding relating to commercial transactions, this does not mean it automatically waive the right to immunity nevertheless. The reason is that the legislation merely shows a universal attitude about uncertain cases in future rather than a specific consent to certain cases.

As ILC Commentary indicated

―The consent of a State with regard to a matter could be confined to a particular case only and consequently would not affect the immunity of the State with regard to a similar matter in another case.‖²⁴⁴