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international law justify the conclusion that this juridical person
–
the foreign State
–
does not enjoy functional immunity, and that Czech courts have jurisdiction in these
matters.”
79
A logical inference from this language would seem to be that Czech courts
have jurisdiction over any and all employment disputes involving foreign States.
However, such position would be quite radical in comparison with international
standards. Both the general State practice and the UN Convention differentiate
among various types of employment disputes, never lifting immunity for all types of
employment disputes.
80
In deciding whether to grant immunity, courts in some jurisdictions have
emphasized the importance of the location or the context of the contracted employment.
If an employee is employed at whatever level at an embassy, consulate, military base or
within a similar context, where a foreign State is engaged in sovereign activities, the
courts in these jurisdictions will hold that immunity attaches because any inquiry
into the foreign State’s conduct as employer in relation to such institution would
excessively encroach on the State’s internal organization and sovereignty.
81
Elsewhere,
courts have focused instead on the nature of the particular employee’s functions,
upholding immunity only where an employee is specifically engaged in inherently
sovereign activities. Employees engaged in menial duties, regardless of their place of
employment, have been permitted to sue.
82
The UN Convention considers employment matters to be a special category and
sets forth two grounds for immunity to attach: the character of activity performed
by the employee and the content of the claim itself. States thus enjoy immunity in
proceedings concerning (i) employees who have been recruited to perform “particular
functions in the exercise of governmental authority” or fall within special categories,
such as diplomatic agents; or (ii) a claim relating to the recruitment, renewal of
employment, and reinstatement, or the dismissal or termination of employment
79
Ruling of the Supreme Court of the Czech Republic dated 25 June 2008, case No. 21 Cdo 2215/2007.
80
The key problem of immunity with respect to employment contracts between a State and an individual
for work performed or to be performed in the forum State is the opposing interests of the two States
involved. While the employer State has an interest in the forum State not interfering in its relationships
with its own agents, the forum State has an interest in the protection of its local labor force and in the
application of its labor laws. Hafner G., United Nations Convention on Jurisdictional Immunities of
States and Their Property (2004), para. 25.
81
See
,
e.g.
,
Conrades v United Kingdom
, 65 ILR 205;
X v Argentina
, 114 ILR 502;
Muller v United States
of America
, 114 ILR 512;
Sengupta v Republic of India
, 64 ILR 352;
Arab Republic of Egypt v Gamal-
Eldin,
104 ILR 673;
Brazilian Embassy Employee Case
, 116 ILR 625;
Governor of Pitcairn v Sutton
,
104 ILR 508.
See also
Garnett R, ‘State Immunity in Employment Matters’ (1997) 46
International &
Comparative Law Quarterly
81, 83 and O’Keefe R., Tams C.J. and Tzanakopoulos A. (eds),
The United
Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary
(Oxford
University Press 2013), 187-188.
82
See
,
e.g.
,
British Embassy Driver Case
, 65 ILR 20;
S v Republic of India
, 82 ILR 13;
Landano v United
States of America
, 116 ILR 636;
M. v Arab Republic of Egypt
, 116 ILR 656;
R v Republic of Iraq
, 116 ILR
664;
Saignie v Embassy of Japan
, 113 ILR 492;
Barrandon v United States of America
, 116 ILR 622
. See
also
Garnett R., State Immunity in Employment Matters, 83
and O’Keefe R. et al.,
The United Nations
Convention on Jurisdictional Immunities of States and Their Property: A Commentary
, 188-189.