This post is part of the series SAF Vehicle Seize
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TL;DR – Ohhh. China agrees with us about sovereign immunity
The saga of our nine Terrexes has been going on for a while. Many people have said many things about it, from our Ambassador-at-Large, Mr Bilahari Kausikan, to our political leaders. But after all those many things that have been said, after all the different things that have been done, we still don’t know when (or if) we will get back our Terrexes.
And oh, in case you’re wondering, those nine Terrexes cost us S$30 million.
Why go through HK? Cos we are financially prudent
Would we have avoided all of this if we didn’t use commercial carriers to ship those Terrexes? Maybe. But, according to Dr Ng Eng Hen, Minister of Defence, we don’t actually have transport ships of the requisite scale and capability to ship all our military equipment without using commercial carriers. Sure. We can invest in those capability. But consider this, according to Dr Ng:
“The SAF has followed these procedures for shipping military equipment for over 30 years without any significant incidents.”
So if this arrangement has been working well for so long, why should we spend this money? That money could be better spent on other things.
But why stop at Hong Kong? Why not ship it directly? Dr Ng pointed out:
“It would cost three to four times more, and add several hundred million dollars to MINDEF’s annual budget, to ship all military equipment directly from point-to-point.”
So think about this. We’ve been doing this for 30 years. Each of those years, the current arrangement has helped us save several hundred million dollars. In other words, this arrangement has helped us save several billion dollars. That’s the mark of a financially prudent government.
Dr Ng also clarified that there are some exceptions where the SAF does not use such commercial arrangements or companies. An example would be when it ships advanced weapon and sensor systems. These nine Terrexes are used for training and do not contain any sensitive equipment.
But will we get back our Terrexes?
Dr Ng said that PM Lee has written to Hong Kong Chief Executive CY Leung for the immediate return of our Terrexes. In that letter, PM Lee reiterated Singapore’s sovereign rights over the Terrexes. Dr Ng explained that:
“The legal position is that the SAF Terrexes and other equipment detained in Hong Kong are the property of the Singapore Government. They are protected by sovereign immunity, even though they were being shipped by commercial carriers. This means that they are immune from any measures of constraint abroad. They cannot legally be detained or confiscated by other countries.”
This legal concept of sovereign immunity is a well-established one. It is a concept that even China stridently advocates for.
In fact, China has consistently claimed that a basic principle of international law is for states and their property to have absolute sovereign immunity. China objects to restrictive sovereign immunity. Did you know that some Chinese state-owned entities have even adopted a controversial defense when they face U.S. lawsuits? They have the “You can’t touch us because we enjoy sovereign immunity” mentality. So it’s not like the concept is alien to them.
What is Sovereign Immunity?
Sovereign immunity is a legal doctrine recognised internationally stating that a sovereign state is exempt from the jurisdiction of foreign national courts, in respect of its sovereign activities or property.
This means a sovereign state cannot be sued before the courts of another sovereign state unless it decides to waive its immunity. Its assets are also not liable to seizure and forfeiture.
Our Terrexes are Singapore’s property. So, according to China’s position, they have absolute sovereign immunity! Which is exactly our point. In other words, China agrees with us!
What’s more, in China’s statement, China’s foreign ministry spokesman, Lu Kang said:
” I hope the relevant parties can follow the laws of Hong Kong, China”
Well, according to Dr Ng:
“This principle (of sovereign immunity) is well-established under international law, and we are advised by lawyers that it is also the law in the Hong Kong SAR (Special Administrative Region).”
As Associate Professor Eugene Tan wrote in a Straits Times article:
“This is buttressed by a 2011 majority decision where Hong Kong’s apex court, the Court of Final Appeal (CFA), ruled that foreign states enjoy absolute state immunity from jurisdiction in Hong Kong, including a foreign government’s activity and assets of a commercial nature…
The basis for the CFA’s landmark decision in Democratic Republic of the Congo v FG Hemisphere was that China applied absolute state immunity, and ‘HKSAR cannot, as a matter of legal and constitutional principle, adhere to a doctrine of state immunity which differs from that adopted by the PRC. The doctrine of state immunity practised in the HKSAR, as in the rest of China, is accordingly a doctrine of absolute immunity’.
As a Special Administrative Region (SAR) of China, Hong Kong’s adoption of ‘a divergent state immunity policy (from China) would embarrass and prejudice the State in its conduct of foreign affairs’.”
In other words, if Hong Kong doesn’t abide by the doctrine of absolute sovereign immunity, it would be an embarrassment to China. So, in this, China and Singapore are also in agreement. We certainly don’t want Hong Kong to embarrass China. Instead, we would like Hong Kong to abide by its own laws and respect the sovereign immunity of our Terrexes. Exactly what China wants.
What’s more, this is not the first time China or rather, Hong Kong authorities detained or seized another country’s military vehicles and equipment. In 2010, South Korean military equipment – including personnel carriers as well as light tanks – was also seized by Hong Kong authorities. Hong Kong eventually returned South Korea their military equipment.
Put all these together, we should get our Terrexes back.
Of course, China can still suddenly decide that they want to treat some countries differently from how they want all other countries to treat them, thus refusing to return us our Terrexes. But what would that say about China? That they are a bully? Surely China wouldn’t want the world to think of them that way.