CYIL 2014

438

KLARA POLACKOVA VAN DER PLOEG

CYIL 5 ȍ2014Ȏ

of the rule to the evolving standards of international law.

The contribution of Czech

courts to the development of the contemporary doctrine of State immunity could

arguably be precisely the renewed emphasis on the exercise of public functions by a State.

Not losing sight of the special character of States (as institutions of social organization

inclusively exercising regulatory and other functions in the interest of their population),

which is what needs to continue receiving special treatment through the concept of State

immunity, should assist in striking and maintaining the balance within the legal regime.

It is somewhat doubtful that the departure from essentially uniform international

terminology was a result of thoughtful consideration on the part of the Czech Supreme

Court. The use of the term “functional immunity” in relation to State immunity is

certainly far from ideal, and if maintained, it might result in conceptual confusions.

Nevertheless, within the Czech context, the emphasis on the “functional” character of

State immunity provided not only the rationale for conceptualizing State immunity as

restrictive, but will also potentially serve as a corrective vehicle to counter any formalistic

application of the nature-of-the-act test. The “functional” perspective arguably invites

consideration of the purpose where required for the proper determination of whether

an act is carried out in exercise of a public function. The idea of “functionality”

essentially requires a court to take into consideration all relevant circumstances; in

this sense, it seems analogous to what was termed “contextual” within common-law

jurisprudence, and makes explicit what courts worldwide have been doing all along.

3.4 Open Questions

The Czech judicial decisions to date have left many significant aspects of the

State immunity regime unresolved, probably more so than may seem apparent at

first sight. This state of affairs is arguably caused not only by the low number of

cases, but also by the relatively brief and thin reasoning provided by the Supreme

Court in its rulings. The extent to which the State immunity regime will have to be

made more precise and sophisticated becomes clear in comparison with similar cases

in other jurisdictions, as well as with the UN and European Conventions.

The

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

Human Rights, 412.

This focus on the exercise of public functions by a State does not necessarily challenge the status-based

conceptualization of State immunity, however, as the underlying rationale remains the existence of

statehood and the State’s status as a State. Hazel Fox has noted in this respect argued that

“[t]o define the

pleas as no longer personal in nature because they are based on function may be too facile. The formulation

of the plea on subject-matter, ratione materiae rather than personal ratione personae, cannot disguise the

underlying criterion: that the matters identified as immune all depend on the public persona of the foreign

State, the core attributes of a State.”

Fox H. and Webb P., The Law of State Immunity, 51.

As Yang has noted in his detailed study of State immunity case law worldwide,

“[w]hatever the test, the

courts tend to look into all the relevant circumstances. What is more, for many courts, finding an activity

commercial represents only one initial step towards the actual assertion of jurisdiction over a foreign State:

other conditions must also be satisfied.”

Yang X., State Immunity in International Law, 108.

In terms of the structure of the judicial reasoning, it is quite interesting to observe that Czech courts

have nowhere referred to the UN Convention. The courts could not apply the UN Convention directly,

as the Czech Republic signed the UN Convention in 2006 but has not ratified it, and as a matter