CYIL 2015

388

PETR VÁLEK

CYIL 6 ȍ2015Ȏ

1. The State Immunity and Its Current Relevance

Those students who nowadays take the main course of public international law

may find the issue of State immunity to be uninteresting or even irrelevant. Quite

often they prefer to focus on other branches of international law that dominate

the headlines of the media, such as the use of force

(ius ad bellum)

, international

humanitarian law

(ius in bello)

and, most frequently, international criminal law.

When they have to choose a topic for a paper or even a law review article, they usually

end up writing on one of these subjects.

And yet, the issue of State immunity is neither uninteresting nor irrelevant. In

fact, it is linked to some of the most fascinating cross-cutting questions in current

international law, such as: Can a State claim immunity for serious human rights

violations by its organs in respect of civil law actions? Where to draw a line between

activities of a State that are covered by State immunity and those which are not?

Which kind of State property is protected by such immunity?

Therefore, it is not surprising that the international legal bodies regularly include

the issue of State immunity on their agenda. In recent years this has been the case

for the EU Council Working Group on Public International Law (hereinafter the

“COJUR”) and the Council of Europe Committee of Legal Advisers on Public

International Law (hereinafter the “CAHDI”). A few years earlier this question kept

both the UN International Law Commission (hereinafter the “ILC”) and the Sixth

(Legal) Committee of the UN General Assembly busy. Even more importantly,

the cases involving the concept of jurisdictional immunity of States arise both

before domestic and international courts, be it the International Court of Justice,

the European Court of Human Rights or the International Tribunal for the Law

of the Sea.

Recently, such cases even appeared before the Court of Justice of the

European Union.

Finally, the questions related to State immunity come up in

day-to-day business of national diplomacies. As such, no director of international

law department at any foreign ministry today can afford to ignore this issue in his or

her legal practice.

The objective of this article is to inform on how a bilateral legal problem in this

field of international law between two countries gave birth to an instrument that

might become useful for a wider community of the EU and Council of Europe

membership. Before entering into the case in question, I find it necessary to make at

In this context, I have to admit that I was no exception to this rule during my own student years.

In the 2012 ARA Libertad Case (Argentina vs. Ghana), Argentina invoked the jurisdictional immunity

of military property for its frigate according to Art. 21(1)(b) of the UN Convention on Jurisdictional

Immunities of States and Their Property; see Request for the prescription of provisional measures under

Article 290, para. 5 of the UNCLOS, 14 November 2012, para. 43, available at:

http:www.itlos.org

E. Ruffer, When the Suit Doesn’t Suit Them: Jurisdictional Immunities of States in the Context of EU

Law, CYIL 4 (2013), pp. 91-103.