CYIL 2014

465 / 532

449
STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS
Czech courts following the ratification. Since the UN Convention will still not have
entered into force because of an insufficient number of ratifications,132 Czech courts
will be neither required nor authorized to apply the UN Convention directly. As
discussed, pursuant to Article 10 of the Czech Constitution, international treaties
may be applied directly and have precedence only if they are binding on the Czech
Republic, i.e. if they are in force, which will not be the case of the UN Convention.
Similarly, the particular provision of § 2 of the 2012 Act requires the 2012 Act to
be applied within limits of relevant international treaties only if these treaties are
binding.133
Czech courts might certainly be more inclined to refer to the UN Convention
in their reasoning, especially considering the position of the Czech government when
adopting the 2012 Act that the UNConvention reflects customary international law.134
However, Czech courts are not obliged to follow this position. In fact, considering
the low number of ratifications of the UN Convention ten years after its adoption,
it is somewhat doubtful that it actually does represent international custom.
Additionally, even within the framework of the UN Convention, there is space for
divergent approaches and positions. In future State immunity cases, Czech courts
should primarily strive to conceptualize better and to engage with the developed
jurisprudence in other jurisdictions. This will allow them to enrich and deepen their
decision-making, as well as to promote uniform interpretations.
4. Conclusion
In 2008, the Supreme Court of the Czech Republic reversed the conceptualization
of State immunity as absolute, and in its place introduced a restrictive doctrine. In
doing so, the Supreme Court formulated the concept of so-called “functional State
immunity”: immunity of States is limited because it is functional.
While the Supreme Court generally sought to follow the international trend
in the area of State immunity, its decision displayed a relative unfamiliarity with
The Foreign Affairs Committee recommended that consent be given on 26 June 2014 and the
Convention now awaits its second reading. Resolution of the Czech Cabinet No. 208 – Consent of
the Cabinet with Ratification of the UN Convention, dated 2 April 2014, available at .
odok.cz/djv-agenda?p_p_id=agenda_WAR_odokkpl&p_p_lifecycle=2&p_p_state=normal&p_p_
mode=view&p_p_resource_id=downloadAttachment&p_p_cacheability=cacheLevelPage&p_p_col_
id=column-2&p_p_col_count=1&_agenda_WAR_odokkpl_attachmentPid=VPRA9HYBN2DK
(accessed on 31 July 2014). Information as of 30 September 2014; see the status of the ratification
procedure on the website of the Czech House of Representatives at
sqw?T=195&O=7.
132 The ratification by the Czech Republic will bring the number of State Parties to the Convention to
17. Pursuant to Article 30 of the UN Convention, 30 ratifications are necessary for the Convention to
enter into force.
133 Pursuant to § 2 of the 2012 Act: “The Act shall apply within the limits set by published international
treaties, which are binding on the Czech Republic.”
134 Cf Bříza P. et al., Zákon o mezinárodním právu soukromém: Komentář, 59, who state outright, however
without much analysis, that the new law should be interpreted in light of the UN Convention.