CYIL 2014

KLARA POLACKOVA VAN DER PLOEG CYIL 5 ȍ2014Ȏ performance of the functions of the diplomatic mission, and the Russian Federation therefore enjoyed immunity pursuant to the Vienna Convention. Specifically, the building of the mission enjoyed protection by virtue of Article 22, which guarantees the inviolability of the premises of the mission. This inviolability would not be ensured if the Russian Federation were prohibited from entering the Russian Embassy as requested by Ms. Popper. Consequently, the Supreme Court concluded that regardless of the ownership of the Popper’s Villa, the Supreme Court concluded that Czech courts do not have jurisdiction to decide on her preliminary measures request. 28 3. Analysis of the Law of State Immunity as Applied by Czech Courts The three leading Czech cases have dealt with some of the more difficult and interesting scenarios that arise within the law of State immunity: (i) immunity within the context of employment at an embassy; (ii) immunity in a tort case; and (iii) immunity from enforcement measures with respect to the premises of a diplomatic mission. Immunity prevents one State from adjudicating the dispute of another State. In the most general terms, it is an international law rule that bars the exercise of territorial jurisdiction by one State over another State. It thus represents a departure from the principle of territorial sovereignty and the jurisdiction that flows from it. 29 Since the late 2000’s, the Supreme Court of the Czech Republic has articulated and enforced the restrictive doctrine of State immunity within the Czech Republic, granting immunity to foreign States only in cases involving the exercise of sovereign authority (acta jure imperii) . Yet, the State immunity regime is still largely underdeveloped and many issues remain open for judicial elaboration in future cases. 3.1 Domestic Framework for Application of State Immunity Although the Czech Republic is obliged to grant immunity to foreign States by virtue of general international law, Czech courts have had to deal with the issue of jurisdictional immunities of States formally on the basis of a domestic statute. Until January 2014, the particular provision was § 47 of Act No. 97/1963 Coll., on International Private and Procedural Law, (the “1963 Act”), 30 which was also the legal basis for all the leading cases. As of 1 January 2014, this provision was replaced with § 7 of Act No. 91/2012 Coll., on Private International Law (the “2012 Act”), which repealed and replaced the 1963 Act as a part of a large re-codification of Czech civil law. 31 28 The Supreme Court also confirmed its previous position that Article 31 of the Vienna Convention is inapplicable because the defendant is a foreign State and not a diplomatic agent. 29 See, Jurisdictional Immunities of the State (Germany v. Italy), International Court of Justice, Judgment of 2 February 2012, para. 57. 30 The text of § 47 Sec. 1 of the 1963 Act is reproduced at ft 14 above. 31 Act No. 91/2012 Coll., on Private International Law, § 7: “ (1) Foreign states shall be exempted from the jurisdiction of Czech courts in proceedings arising from their conduct and acts carried out in the exercise of their sovereign, governmental, and other public powers and functions, including their property, which

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