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practical difference and should therefore raise any interest. On the most basic level,

the significance of the potential misnomer is quite simple: several distinct categories of

immunities operate in international law (in addition to State immunities, international

law recognizes diplomatic immunities, consular immunities, immunities of heads of

States, immunities of international organizations, etc.). While State immunity is closely

related to other types of immunities, they are now fundamentally distinct, each being

governed by distinct rules and principles.

Consequently, clarity as to the appropriate

type of immunity in a particular case is critical for correct application of the law. Failure

to distinguish may result in legally wrong decisions, and lower courts especially have

struggled with the intricacies of the distinct legal categories as can also be seen in the

Czech cases.

On a more principled level, the particular conceptualization of (State) immunity

will play out critically in hard cases. The Supreme Court’s decisions are unfortunately

cursory in this respect and plainly state, as if obvious, that State immunity is simply

no longer absolute, but “functional.”

Using the same terminology for both State immunity and immunity of individuals

acting on behalf of a State might suggest that the Supreme Court believes that the

two are analogous. While this may be true in a generic sense in that both types of

immunities ultimately protect the operation of a sovereign State internationally, on

closer look the two are materially different. The rationale for each type of international

immunity relates to a different “function”. In the case of State immunity, the “function”

refers to the performance of the public functions of the State.

Within the context

of the immunity of individuals acting on behalf of a State, “function” refers to the

question of whether the individuals acted in the capacity of the State itself,

i.e

. in

their official function.

The consideration is therefore not whether the individual

without any reflection on the use of the term or comparison of this notion of functionality with that

of State officials. Balaš V. and Pauknerova M., The Czechoslovak Approach to the Draft Convention

on Jurisdictional Immunities of States and Their Property, 874 and 882; Caban P.,

Jurisdikční imunity

států

, 10; Bříza P. et al.,

Zákon o mezinárodním právu soukromém: Komentář

, 56-57; Dobiáš P. (ed.),

Zákon o mezinárodním právu soukromém: Komentář

, 61; Pauknerová M. and Rozehnalová N.,

Zákon

o mezinárodním právu soukromém: Komentář

, 69. It is difficult to determine when the term was used

for the first time; however, it appears that the Czechoslovak authors might have picked up the term

from F. Enderlein, a scholar from the former East Germany, who in 1987 challenged the doctrine of

absolute immunity advocated by the East as the only possible theoretical stance for a socialist State

(in which public and private are one) and contended that (i) the socialist State could very well act in

different functions and that (ii) the functional and thus restrictive approach to immunity is therefore

compatible.

See

Balaš V. and Pauknerova M., The Czechoslovak Approach to the Draft Convention on

Jurisdictional Immunities of States and Their Property, 882, referring to Enderlein F., ‘Die Immunität

der Staaten im gegenwärtigen Völkerrecht: Zum Ausschluss kommerzieller Aktivitäten im Entwurf der

Völkerrechtskommission der Vereinten Nationen’,

Probleme des Völkerrechts

(1987)

41-42.

See

, for example, Stoll P.-T., State Immunity, paras. 1 and 13.

See

, for example, Ruling of the High Court in Prague dated 27 January 2012, No. 4 Co 1/2011-143,

discussed at Section 2.3 above.

Fox H. and Webb P., The Law of State Immunity, 1.

Salmon J., ‘Representatives of States in International Relations’,

Max Planck Encyclopedia of Public