91 / 350
ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND
JUS COGENS
Russian Federation does not admit claims even in cases of commercial activities has
been broadly criticized,
57
including recently by the ECtHR in the
Oleynikov
58
case.
A similar absolute attitude has been employed in Chinese jurisprudence, although
the courts of Hong Kong have tended to apply the restrictive approach.
59
The Slovak and Czech practise on foreign State immunities is practically
identical. No jurisprudence related to civil claims against foreign States is available
since the 1963 Law on Private International Law and Procedure follows a “quasi-
absolute” approach to immunity by providing a general rule granting immunity
unless a foreign State or its official “voluntarily submit [itself ] to the jurisdiction”, or
the object of proceedings relates to real estate within the Slovak/Czech territory, to an
inheritance, or to the commercial activities carried by foreign States and their officials
“outside their official duties”.
60
It is the last-mentioned exception, which, together
with a differentiation between acts “within and outside the official duties”, implies
that the traditional absolute approach is now limited to an approach that may be
described as ‘quasi-absolute’.
61
Nevertheless, both Slovakia and the Czech Republic
have signed the UN Jurisdictional Immunities Convention that will, after its entry
into force, enjoy a priority over their respective national legislation.
the competent bodies of the corresponding state, unless otherwise envisaged in the international treaty
of the Russian Federation or in federal law”. Civil Procedural Code of the Russian Federation No. 138-
FZ of 14 November 2002 (as amended on 6 February 2012).
57
See
e.g.
Michalchuk, D. J., Filling a Legal Vacuum: The Form and Content of Russia’s Future State
Immunity Law Suggestions for Legislative Forum. In: 32
Law and Policy in International Business
(2001), p. 487.
58
Oleynikov v. Russia
, Application No. 36703/04, ECtHR, Judgment of 14 March 2013.
59
See Cheung, E.T.M., Undermining Our Judicial Independence and Autonomy. In 41
Hong Kong
Law Journal
(2011), mentioning (at pp. 412-413) the submission of three letters addressed by Chinese
government to the Hong Kong courts during the litigation affirming that China employs an absolute
approach to foreign State immunity and does not admit any exceptions. Cf. QI, D.: State Immunity,
China and its Shifting Position. In 7
Chinese Journal of International Law
(2008), pp. 307-337,
discussing in detail the relevant Chinese legislation and case-law.
60
Law No. 97/1963 of 4 December 1963 on Private International Law and Rules of Procedure,
Article 47. The Czech Republic amended the provision now containing also an exception in cases
where the implementation of international sanctions, to which the Czech Republic is bound, requires
so. See also the Questionnaire on the topic of Jurisdictional immunities of States and their Property,
submitted by the Government of the Czech Republic on 9 April 1981 to the UN ILC, available in:
Hafner, G. –Kohen, M. G. –Breu, S. (eds.),
State Practice Regarding State Immu
nities. Martinus Nijhoff
Publishers/Council of Europe, 2006, p. 289 ff.
61
The indications whether an absolute or restricted immunity is applied is interesting from the point of
view that in the above mentioned Questionnaire (note 81
supra
) submitted in 1981 the Czechoslovak
government strictly asserted that it took an absolute approach to immunities, not recognizing any
exceptions nor the differentiation between
acta jure imperii
and
acta jure gestionis
. At the same time,
however, Law No. 97/1963 provided an exception to foreign State immunity in the indicated cases,
some of them explicitly attached to the acts of a foreign State or its official “outside of their duties”,
which basically may be interpreted as “
acta jure gestionis
”. This illogical terminological discrepancy
cannot prejudice the fact that the national legislation, as it exists by now, implies a restricted approach,
albeit not restricted to the extent of common law countries.