CYIL 2014

422

KLARA POLACKOVA VAN DER PLOEG

CYIL 5 ȍ2014Ȏ

1. Introduction

State immunity can be a challenging matter for domestic courts. Firstly, State

immunity cases often involve complicated relationships among international,

constitutional, and statutory regimes. Secondly, domestic judges may have lesser

familiarity with the applicable international law. Finally, in resolving immunity

disputes, domestic courts need to thread the needle between their obligation to grant

immunity to other States in accordance with general international law and their need

to provide access to court for the protection of individual rights in accordance with

international human rights law. A State may be internationally responsible for failure

on either of these fronts through the action of its courts.

This paper discusses the understanding and application of State immunity in the

courts of the Czech Republic. It seeks both to portray and to analyze the development

and use of the doctrine within the particular jurisdiction as well as to contribute a

piece to the jigsaw of the concept of international law: few, if any, doctrines of public

international law have been more shaped by case law of domestic courts than State

immunity.

The Czech Republic has generally been absent from the picture, as the typical

international law analyses dominantly focus on selected major jurisdictions.

The

few references in literature to Czech practice are largely misinformed.

Additionally,

this paper also seeks to contribute to the domestic legal literature, which has so far

failed to analyze this highly significant international law matter, and thus assist the

Czech courts with this complex issue. The paper therefore considers how the basic

principles that have so far developed in Czech jurisprudence are likely to play out

going forward, and evaluates certain specifics of the Czech constitutional regime

that may fundamentally affect adjudication in future cases involving violations of

international human rights obligations.

For an example of a denial of State immunity in violation of international law,

see

Jurisdictional

Immunities of the State

(Germany v Italy: Greece Intervening), International Court of Justice, Judgment

of 2 February 2012; for an example of a grant of State immunity in excess of the requirements of

public international law that violated the right of access to court as protected under Article 6(1) of the

European Convention on Human Rights,

see Case of Cudak v. Lithuania

, European Court of Human

Rights, Application No. 15869/02, Judgment of 23 March 2010 and

Case of Sabel El Leil v France

European Court of Human Rights, Application No. 34869/05, Judgment of 29 June 2011;

see

also

Oleynikov v. Russia Oleynikov v Russia

, European Court of Human Rights, Application No. 36703/04,

Judgment of 14 March 2013.

Bianchi A., ‘Overcoming the Hurdle of State Immunity on the Domestic Enforcement of International

Human Rights’ in Benedetto Conforti (ed.),

Enforcing International Human Rights in Domestic Courts

(M. Nijhoff 1997), 405.

Hafner G., Kohen M. G. and Breau S. (eds.),

State Practice Regarding State Immunities = La Pratique

des Etats concernant les immunités des Etats

(M. Nijhoff 2006); Fox H. and Webb P.,

The Law of State

Immunity

ed, Oxford University Press 2013). A remarkable exception in this respect is Yang, who,

however, does not discuss the modern Czech practice. Yang X.,

State Immunity in International Law

(Cambridge University Press 2012).

For example, arguably the most authoritative treatise on the topic of State immunity maintains,

incorrectly, that as of 2013, the courts in the Czech Republic continue

“to treat commercial claims

brought against foreign States as immune”

. Fox H. and Webb P., The Law of State Immunity, 160-161.