CYIL 2014

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rights. 3.6 Prospects Under the New Statute The 2012 Act (Act No. 91/2012 Coll., on Private International Law), § 7, repealed and replaced § 47 of the 1963 Act as a part of a large re-codification of Czech civil law. 128 The new provision now specifically stipulates that State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.

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