CYIL 2014

KLARA POLACKOVA VAN DER PLOEG

CYIL 5 ȍ2014Ȏ

1. Introduction State immunity can be a challenging matter for domestic courts. Firstly, State immunity cases often involve complicated relationships among international, constitutional, and statutory regimes. Secondly, domestic judges may have lesser familiarity with the applicable international law. Finally, in resolving immunity disputes, domestic courts need to thread the needle between their obligation to grant immunity to other States in accordance with general international law and their need to provide access to court for the protection of individual rights in accordance with international human rights law. A State may be internationally responsible for failure on either of these fronts through the action of its courts. 2 This paper discusses the understanding and application of State immunity in the courts of the Czech Republic. It seeks both to portray and to analyze the development and use of the doctrine within the particular jurisdiction as well as to contribute a piece to the jigsaw of the concept of international law: few, if any, doctrines of public international law have been more shaped by case law of domestic courts than State immunity. 3 The Czech Republic has generally been absent from the picture, as the typical international law analyses dominantly focus on selected major jurisdictions. 4 The few references in literature to Czech practice are largely misinformed. 5 Additionally, this paper also seeks to contribute to the domestic legal literature, which has so far failed to analyze this highly significant international law matter, and thus assist the Czech courts with this complex issue. The paper therefore considers how the basic principles that have so far developed in Czech jurisprudence are likely to play out going forward, and evaluates certain specifics of the Czech constitutional regime that may fundamentally affect adjudication in future cases involving violations of international human rights obligations. 2 For an example of a denial of State immunity in violation of international law, see Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), International Court of Justice, Judgment of 2 February 2012; for an example of a grant of State immunity in excess of the requirements of public international law that violated the right of access to court as protected under Article 6(1) of the European Convention on Human Rights, see Case of Cudak v. Lithuania , European Court of Human Rights, Application No. 15869/02, Judgment of 23 March 2010 and Case of Sabel El Leil v France , European Court of Human Rights, Application No. 34869/05, Judgment of 29 June 2011; see also Oleynikov v. Russia Oleynikov v Russia , European Court of Human Rights, Application No. 36703/04, Judgment of 14 March 2013. 3 Bianchi A., ‘Overcoming the Hurdle of State Immunity on the Domestic Enforcement of International Human Rights’ in Benedetto Conforti (ed.), Enforcing International Human Rights in Domestic Courts (M. Nijhoff 1997), 405. 4 Hafner G., Kohen M. G. and Breau S. (eds.), State Practice Regarding State Immunities = La Pratique des Etats concernant les immunités des Etats (M. Nijhoff 2006); Fox H. and Webb P., The Law of State Immunity (3 rd ed, Oxford University Press 2013). A remarkable exception in this respect is Yang, who, however, does not discuss the modern Czech practice. Yang X., State Immunity in International Law (Cambridge University Press 2012). 5 For example, arguably the most authoritative treatise on the topic of State immunity maintains, incorrectly, that as of 2013, the courts in the Czech Republic continue “to treat commercial claims brought against foreign States as immune” . Fox H. and Webb P., The Law of State Immunity, 160-161.

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