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THE CZECHǧAUSTRIAN DECLARATION ON JURISDICTIONAL IMMUNITIES …
least a brief introduction to the concept of State or sovereign immunity and present
an overview of the applicable international legal framework.
The historic origins of immunity can be traced down to a concrete person –
a head of State, a monarch who enjoyed a wide range of privileges and immunities,
inter alia
, could not be made subject to the judicial processes of his or her own State.
Naturally, such a sovereign could not be sued before foreign courts either. Subsequently,
this person-related concept of immunity was replaced by a modern concept of State
immunity.The domestic courts of one country were not allowed to manifest their power
over foreign sovereign States without their consent, as the enforcement of a judgment
against a foreign State would not be possible.
4
Due to this historic development, the
core idea behind the concept of State immunity was formed: no State can exercise its
jurisdiction over another State
(par in parem non habet imperium vel jurisdictionem).
Initially, State immunity evolved as absolute immunity. Under this concept, the
States were supposed to be completely immune from foreign jurisdiction in all
cases regardless of circumstances. This was possible only due to the “small State or
Government” that existed at that time. Nevertheless, the activities of States were
substantially expanded in the 20th century through governmental agencies, public
corporations, nationalized industries etc.Therefore, the concept of absolute immunity
could not work for a modern State, as it would give the State entities an advantage
over private companies. As a result of this, the domestic courts started to narrow the
absolute immunity. Through the jurisprudence of courts the concept of restrictive
immunity was established. Under this approach, there must be a distinction between,
first,
acta iure imperii, i.e.,
governmental acts with regard to which immunity would
be granted (sovereign acts) and, second
, acta iure gestionis, i.e.,
acts relating to private
or commercial activity not covered by the immunity (non-sovereign acts).
5
One of the judgments in this process was the 1950 decision of the Supreme
Court of Austria in the case of Dralle v. Republic of Czechoslovakia. This was initially
a trademark dispute between a German cosmetics company and a former branch
office of that company in Czechoslovakia that has been nationalized. The branch
had held several trademarks in Austria which the nationalized company claimed.
The German company sought an injunction against the use of the trademarks by the
nationalized company, against which the defendant claimed immunity. The Austrian
Court, after taking an extensive survey of “the practice of the courts of civilized
countries”, came to the conclusion that there is no immunity for
acta iure gestionis
.
6
One could say this was the first and rather accidental Czech-Austrian “initiative” in
this field of international law.
4
M. N. Shaw, International Law, 6th Edition, Cambridge 2008, pp. 697-698.
5
Id.
, pp. 701-705.
6
J. Brőhmer, State Immunity and the Violations of Human Rights, The Hague 1997, pp. 111-112.