CYIL 2014

KLARA POLACKOVA VAN DER PLOEG CYIL 5 ȍ2014Ȏ equal). 44 Viewing independence and equality of sovereign States as the legal basis for State immunity conforms to the internationally dominant view on this point, 45 even though Yang has challenged its explanatory power, 46 and the latest edition of Hazel Fox’s treatise suggests that this rationale may have been put in question by the development of the restrictive immunity doctrine. 47 In this view, States enjoy immunity in foreign courts simply by virtue of their status: States are immune because they are States. As States, they are equal to the forum State, and the courts of the forum State therefore cannot (and should not) exercise jurisdiction over them. 48 While States are no longer completely exempted from jurisdiction and enforcement in other States, and exceptions to immunity do represent a departure from the principle of sovereign equality, 49 this status-based rationale for State immunity has been maintained throughout the period in which State immunity has been becoming more limited. 50 This is clearly the view that the Czech Republic’s highest civil court shares. 3.3.2 The Concept of Restrictive Immunity According to the Czech Supreme Court, the restrictiveness of State immunity means that immunity extends only to so-called acta jure imperii . According to the reasoning developed, the determination of acta jure imperii depends on the position of the foreign State in the particular legal relationship. If that legal relationship 44 This view is also taken in the Czech scholarly literature. See , for example, Bříza P. et al., Zákon o mezinárodním právu soukromém: Komentář , 56; Pauknerová M. and Rozehnalová N., Zákon o mezinárodním právu soukromém: Komentář , 69. 45 See , for example, Jurisdictional Immunities of the State (Germany v. Italy), International Court of Justice, Judgment of 2 February 2012, para. 57; Mahamdia v Algeria, Court of Justice of the European Union (Grand Chamber), case No. C-154/11, Judgment of 19 July 2012, paras. 54-55 ; Institut de droit international, Resolution on the Immunity from Jurisdiction of State and of Persons Who Act on Behalf of the State in Case of International Crimes (2009, Napoli Session), Article II(1); Case of Al-Adsani v The United Kingdom, European Court of Human Rights, Application No. 35763/97, Judgment of 21 November 2001, para. 54; Hafner G, ‘United Nations Convention on Jurisdictional Immunities of States and Their Property (2004)’, Max Planck Encyclopedia of Public International Law (on-line version, http://opil.ouplaw.com/home/EPIL 2010) accessed 20 May 2014, para. 4; Sucharitkul S, ‘Jurisdictional Immunities in Contemporary International Law from Asian Perspectives’ (2005) 4 Chinese Journal of International Law 1, 42; Cosnard M., La soumission des Etats aux tribunaux internes: Face à la théorie des immunités des Etats (A. Pedone 1996). 46 Yang X., State Immunity in International Law, 44 ff. This view has been suggested already by Hersch Lauterpacht in Lauterpacht H., ‘The Problem of Jurisdictional Immunities of Foreign States’ (1950) 28 British Year Book of International Law 220, 228-229. 47 Fox H. and Webb P., The Law of State Immunity, 51. 48 See , for example, Stoll P.-T., State Immunity’, Max Planck Encyclopedia of Public International Law (on line version, http://opil.ouplaw.com/home/EPIL 2011, accessed 19 May 2014), para. 13. 49 Jurisdictional Immunities of the State (Germany v. Italy), International Court of Justice, Judgment of 2 February 2012, para. 57. 50 Jurisdictional Immunities of the State (Germany v. Italy), International Court of Justice, Judgment of 2 February 2012, para. 57; Fox H. and Webb P., The Law of State Immunity, 4, 19-20, 83; Caban P., Jurisdikční imunity států, 11-12.

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