CYIL 2014

STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS is characterized by the equality of its parties ( i.e. the foreign State does not act in a position of public authority), the acts of the State are not acta jure imperii , and the State does not enjoy immunity with respect to that relationship and the acts involved. Contemporary international law of immunities contrasts the State’s exercise of public powers with its engagement in private relations. 51 State immunity is almost universally conceptualized as limited and not absolute. 52 States enjoy immunity only with regard to sovereign or governmental acts ( acta jure imperii ); they have no immunity with respect to commercial or private acts ( acta jure gestionis ). 53 However, beyond this general principle and some broad consensus as to the types of (potential) limitations, States’ views on the scope of restrictiveness vary widely. 54 What constitutes an acte jure gestionis is largely unsettled. The ICJ did not define the concept in its Jurisdictional Immunities Judgment, 55 and different countries have adopted different approaches in this respect. 56 In fact, even practice within a single State may be ambiguous. 57 51 Fox H. and Webb P., The Law of State Immunity, 4 and 26. 52 Yang X., State Immunity in International Law , 12, even if some domestic courts, especially lower courts or specialized courts, sometimes struggle with its application ( see , for example, the Russian courts’ decisions leading to Oleynikov v. Russia, European Court of Human Rights, Application No. 36703/04, Judgment of 14 March 2013. However, note China’s recent position that “the position of China in maintaining absolute immunity has not been changed, and has never applied or recognized the so-called principle or theory of ‘restrictive immunity’” cited in Democratic Republic of Congo v FG Hemisphere Associates LLC , Hong Kong Court of Final Appeal, Judgment of 8 June 2011, para. 202. 53 See , Jurisdictional Immunities of the State (Germany v. Italy), International Court of Justice, Judgment of 2 February 2012, paras. 55 ff.; Mahamdia v Algeria, Court of Justice of the European Union (Grand Chamber), case No. C-154/11, Judgment of 19 July 2012, paras. 54-55; United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004; European Convention on State Immunity, 1972; Yang X., State Immunity in International Law, 3 , 32, and 58; Stoll P.-T., State Immunity, para. 25; Fox H. and Webb P., The Law of State Immunity, 32-34. However, whether this basic distinction between acta jure imperii and acta jure gestionis is appropriate is debatable. As Andrea Bianchi has suggested, the distinction may not be at all adequate, because, among other things, it tends to make it difficult for states to acknowledge the peculiarity of certain facts – such as human rights violations. Bianchi A., Overcoming the Hurdle of State Immunity on the Domestic Enforcement of International Human Rights. 54 Stoll P.-T., State Immunity, para. 26; Crawford J., Brownlie’s Principles of Public International Law (8 th ed., Oxford University Press 2012), 490. 55 Jurisdictional Immunities of the State (Germany v. Italy), International Court of Justice, Judgment of 2 February 2012. 56 Common law jurisdictions have generally adopted comprehensive statutes on State immunity, with specific lists of exceptions to the general rule of immunity (similarly to the UN and European Conventions). Consequently, the courts in these countries deal with the distinction between acta jure gestionis and acta jure imperii only in relation to the residual category of commercial acts; in other instances they simply apply the explicit statutory exemption. In contrast, in civil law systems, all immunity cases are resolved under the general commercial or private-law exception and the distinction between acta jure gestionis and acta jure imperii is the fundamental distinguishing criterion in all of them. 57 See , for example, the discussion of the US case law in Yang X., State Immunity in International Law, 87-98.

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