CYIL 2014

453 / 532

437
STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS
was exercising some public (sovereign) functions, but rather whether he or she
acted in the exercise of the “official” (in-the-service-of-a-state) or in a “private” capacity.
“Functionality” here inherently involves the notions of mandate and delegation that form
the basis of this immunity. Consequently, while a State may have no immunity in
respect of acta jure gestionis, a State official may enjoy immunity for that very same
act by performing it in the service of the State, in the official function.70
Alternatively, and more plausibly, by labeling State immunity as “functional”,
the Czech Supreme Court declares (and emphasizes) that a foreign State enjoys and
should enjoy immunity because (and precisely because) it carries out certain public
functions. It is the exercise of these public functions that deserves to be protected by the
concept of State immunity. In this sense, State immunity, as reflective of the exercise
of public functions, directly relates to the understanding and conceptualization of
statehood as such.
The theme of fulfillment of public functions has certainly been present in the
restrictive doctrine, which had shifted the emphasis from the institution of the State
to the character of the act. 71 However, it has never been articulated this explicitly,
presumably being largely overshadowed by the nature-of-the-act/purpose debate.
State immunity doctrine is about reconciling the forum State’s territorial
jurisdiction with the foreign State’s sovereign equality.72 In a way, the modern histoire
of State immunity is thus a story about finding a balance between unreasonable or
abusive interference by a forum State with the affairs of another State, and a legitimate
exercise of (dominantly territorial) jurisdiction in line with the (changing) perceptions
of statehood and its prerogatives, as well as the expectations with respect to remedies
that should be available to individuals and other parties when they suffer a wrong
through a State’s action. While the values of modern international society strongly
support the position that States need to be held accountable for their actions and
cannot be excessively shielded by State immunity (and other legal concepts), the
State immunity doctrine arguably still needs to maintain a certain limit beyond
which immunity should not be withdrawn just because the particular exercise of a
State’s public functions may take the form of a private law transaction.
The active involvement of domestic courts in interpreting State immunity in light of
the changing demands of the international system has constantly secured the adjustment
International Law (on-line version, 2011) >
accessed 19 May 2014, paras. 32-39.
70 Fox H. and Webb P., The Law of State Immunity, 537.
71 The pertinence of the functional view with respect to State immunity was in fact advocated by Joan
Donoghue, the current US Judge on the ICJ bench, in an early article in Yale Journal of International
Law. Her position, however, arguably lacked appreciation for the distinct “function” in question in
the context of immunities of State officials and in the context of State immunity. Donoghue J.E.,
‘Taking the Sovereign Out of the Foreign Sovereign Immunities Act: A Functional Approach to the
Commercial Activity Exception’ (1992) 17 Yale Journal of International Law 489.
72 Crawford J., Brownlie’s Principles of Public International Law, 489.