464 / 532
448
KLARA POLACKOVA VAN DER PLOEG
CYIL 5 ȍ2014Ȏ
Much of the thinking advanced by human rights advocates and critics of the
State immunity doctrine
125
would presumably resonate with the Czech Constitutional
Court’s thinking. State immunity was initially developed to protect foreign States from
abuses by the forum State; in today’s international law, it should not serve to shield
serious violations of fundamental human rights.
126
The cases that grant immunity in
such circumstances are much at odds with elementary notions of justice and fairness,
as they effectively deny protection to the victim of the violation.
127
In light of the
constant jurisprudence of the Constitutional Court on superiority of human rights
norms, it may thus be difficult for Czech courts to uphold State immunity in cases
involving serious violations of human rights.
3.6 Prospects Under the New Statute
The 2012 Act (Act No. 91/2012 Coll., on Private International Law), § 7, repealed
and replaced § 47 of the 1963 Act as a part of a large re-codification of Czech civil
law.
128
The new provision now specifically stipulates that State immunity is restricted
to
acta jure imperii
. It also suitably differentiates between State immunity and other
types of international immunities.
According to the 2012 Act bill prepared by the Czech government, the provision
is specifically
“based on the principle of so-called functional immunity”
and was designed
to take into account the UN Convention.
129
Interestingly, the bill specifically stated
that the UN Convention reflects the state of customary law in the area of immunities
of States.
130
The ratification of the UN Convention is currently ongoing in the Czech
Republic.
131
However, from the formal legal perspective, not much will change for
ÚS 19/08, para. 85.
See
also, Judgment of the Constitutional Court of the Czech Republic dated 31
January 2012, case No. Pl. ÚS 5/12 and Judgment of the Constitutional Court of the Czech Republic
dated 8 March 2006, case No. Pl. ÚS 50/14.
125
Hersch Lauterpacht in fact considered State immunity already in to be
“[s]hackles of an archaic and
cumbersome doctrine of controversial validity and usefulness.”
Lauterpacht H., The Problem of Jurisdictional
Immunities of Foreign States, 247.
126
For detailed discussion of the arguments supporting this position,
see
, Bianchi A., Overcoming the
Hurdle of State Immunity on the Domestic Enforcement of International Human Rights, 405-439.
127
The Advocate General, in his Opinion in the
Mahamdia v Algeria
case, in fact went as far as to
call immunity from jurisdiction
“the institutionalized embodiment of the denial of justice.” Mahamdia
v Algeria
[2012] Court of Justice of the European Union (Grand Chamber) C-154/11, Advocate
General’s Opinion, para. 22.
128
See
the text of § 7 of the 2012 Act at ft 31 above.
129
Důvodová zpráva k zákonu č. 91/2012 Sb., mezinárodním právu soukromém [Government Report to
Act No. 91/2014 Coll., on International Private Law] (Anag 2012), 13.
130
Ibid.
131
The Czech Republic signed the UN Convention on 13 October 2006. On 2 April 2014, the Czech
Cabinet recommended the UN Convention for ratification and submitted the Convention for consent
with ratification to the Senate (on 5 May 2014) and to the House of Representatives (on 6 May 2014).
The Senate has given its consent on 24 July 2014. The House of Representatives carried out the first
(out of three) readings on 17 June 2014 and the Convention was referred to the House Committees.