CYIL 2014

KLARA POLACKOVA VAN DER PLOEG CYIL 5 ȍ2014Ȏ The undifferentiated approach in the Popper’s Villa Case was arguably possible because of the international law principle of ne impediatur legatio (which precludes measures that might impair the exercise of diplomatic duties) 111 and the Vienna Convention regime (Article 22, which guarantees the inviolability of the premises of a diplomatic mission 112 and stipulates their immunity from search, requisition, attachment or execution). 113 However, in other factual circumstances Czech courts will need to take a stance on whether immunity from jurisdiction and immunity from enforcement differ, and if so, how. 3.5 Conflict of State Immunity and Human Rights Norms The resolution of a potential conflict between State immunity and human rights has been a highly debated issue in international law literature for more than two decades. The ICJ likely closed the debate through its Jurisdictional Immunities judgment for some time, when it held that there cannot be any normative conflict between the two as State immunity is a procedural rule, the application of which by definition precedes any considerations of substantive law. 114 Yet, several authors have warned against this approach. 115 The rather formalistic approach based on the distinction between procedural and substantive rules (which has also featured in some decisions of the ECtHR originating in the United Kingdom, such as Al-Adsani 116 and Jones 117 ) might, however, prove untenable within the particularities of the Czech constitutional system. 118 The Constitutional Court of the Czech Republic has previously dealt with the issue of a normative conflict between two international law norms. In those cases, the 111 See , for example, Philippine Embassy Case , Germany, 65 ILR 146, 168, Ground C.II.3. 112 Article 22(1) of the Vienna Convention: “ The premises of the mission shall be inviolable.” 113 Article 22(3) of the Vienna Convention: “The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.” 114 Jurisdictional Immunities of the State (Germany v. Italy), International Court of Justice, Judgment of 2 February 2012, paras. 93 and 58. 115 See , notably, Bianchi A., Overcoming the Hurdle of State Immunity on the Domestic Enforcement of International Human Rights, 405-439; Bianchi A., ‘Gazing at the Crystal Ball (again): State Immunity and Jus Cogens beyond Germany v Italy: Greece Intervening’ (2013) 4 Journal of International Dispute Settlement 457. Hazel Fox, in the latest edition of her treatise, noted with respect to the ICJ Judgment that “it is questionable whether this procedure/substance distinction can usefully be applied in all cases as the determinant of relevance to the exclusion of all other issues related to State immunity.” Fox H. and Webb P., The Law of State Immunity, 45. As one of the relevant issues she specifically discusses the area of human rights law. 116 Case of Al-Adsani v The United Kingdom , Application No. 35763/97, European Court of Human Rights, Judgment of 21 November 2001, para. 48. 117 Case of Jones and Others v The United Kingdom , Application Nos. 34356/06 and 40528/06, European Court of Human Rights, Judgment of 14 January 2014. 118 As Crawford has noted in his edition of Brownlie’s Principles of Public International Law, “[i]mmunity exists as a rule of international law, but its application depends substantially on the law and procedural rules of the forum.” Crawford J, Brownlie’s Principles of Public International Law , 488.

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