论外国中央银行资产的国家豁免与其他国家的没收和集体反措施

On the State Immunity of Foreign Central Bank Assets and Confiscation and Collective Countermeasures by the Other States

集体反措施(第三方反措施)是否构成没收外国中央银行资产的理由,涉及三个小问题,即外国中央银行资产享有何种程度的国家豁免、非受害国之外的第三方对责任国采取集体反措施是否已成为习惯国际法规则、没收外国中央银行资产是否符合国际法尤其是其中的反措施规则。按照习惯国际法,外国中央银行资产享有国家豁免的保护,即免于其他国家的管辖、冻结、没收和各种形式的强制措施。一国不能没收外国中央银行资产,除非两国之间处于战争或武装冲突状态,而且仅限于迫切军事必要。《国家责任条款草案》并未规定受害国以外的国家采取集体反措施的权利。集体反措施几乎没有国家实践,采取制裁措施的国家和组织也并不将其制裁措施视为集体反措施,故主张集体反措施构成习惯国际法规则没有依据。禁止非法使用武力属于普遍义务,但责任国向受害国支付赔偿的义务并非普遍义务。以所谓的集体反措施为由主张没收外国中央银行资产,没有国际法依据,违反国家豁免原则,不符合国际责任法就反措施所施加的“临时性”和“可逆性”限制,破坏了国际法治。

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 international 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 allowing third-party other than the injured state to take collective countermeasures against the responsible 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 immune 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 collective 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 developed 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 Internationally 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 confirmed 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 international 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.Confiscation 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.