New Technologies in International Law / Tymofeyeva, Crhák et al.

court proceedings. This conclusion might seem a bit counterintuitive, but the primary legal materials quite clearly signal that the nexus to court proceeding is inevitable (this interpretation is also supported by scholarship). 546 If we accept this interpretation, it would mean that asset freezes, normally adopted by executive organs without any involvement of court proceedings, do not violate customary immunity rules. A counter-argument invokes the sovereign equality of States as a basic principle from which state immunity is deduced. 547 Consequently, immunity from enforcement cannot be limited to court proceedings since this would severely restrict state immunity applicable to its property and violated the principle of sovereign equality. The problem with this argument is that the principle of sovereign equality is indeterminate and the abovementioned conclusion does not clearly stem from it. Another objection could be made on the basis of extensive interpretation of the term “court” stipulated in Article 2(1)(a) UNCSI. It is defined as “ any organ of a State, however name, entitled to exercise judicial functions .” The ILC Commentary then elaborates further on the term judicial functions: “Judicial functions may be exercised in connection with a legal proceeding at different stages, prior to the institution or during the development of a legal proceeding, or at the final stage of enforcement of judgements. Such judicial functions may include adjudication of litigation or dispute settlement, determination of questions of law and of fact, order of interim and enforcement measures at all stages of legal proceedings and such other administrative and executive functions as are normally exercised by, or under, the judicial authorities of a State in connection with, in the course of, or pursuant to, a legal proceeding. Although judicial functions are determined by the internal organizational structure of each State, the term does not, for the purposes of the present articles, cover the administration of justice in all its aspects which, at least under certain legal systems, might include other functions related to the appointment of judges.” 548 Again, judicial functions are linked with court proceedings, as we can see from the excerpt of ILC Commentary. At the same time, it is true that in a different part, ILC seems to give a more extensive interpretation, noting that judicial functions “ may, under different constitutional and legal systems, cover the exercise of the power to order or adopt enforcement measures (sometimes called “quasi-judicial functions”) by a specific administrative organ of the State .” 549 Thus, the question remains whether EU restrictive measures (in our case asset freezes), adopted by the Council in the form of a decision/regulation, could be qualified as a “quasi-judicial function”. Since there is a paucity of judicial practice in this regard, 546 See e.g., Brunk I, ‘Central Bank Immunity, Sanctions, and Sovereign Wealth Funds’ (2023) 91 George Washington Law Review 1616. 547 The argumentation is more developed in Ruys T, ‘Immunity, Inviolability and Countermeasures – A Closer Look at Non-UN Targeted Sanctions’ in Ruys T, Angelet N, and Ferro L (eds), The Cambridge Handbook of Immunities and International Law (CUP, 2019), pp. 684–686. 548 ILC, ‘Draft Articles on Jurisdictional Immunities of States and Their Property, with commentaries 1991’ (1991), p. 14. 549 Ibid.

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