CYIL 2014

STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS was exercising some public (sovereign) functions, but rather whether he or she acted in the exercise of the “official” (in-the-service-of-a-state) or in a “private” capacity. “Functionality” here inherently involves the notions of mandate and delegation that form the basis of this immunity. Consequently, while a State may have no immunity in respect of acta jure gestionis , a State official may enjoy immunity for that very same act by performing it in the service of the State, in the official function. 70 Alternatively, and more plausibly, by labeling State immunity as “functional”, the Czech Supreme Court declares (and emphasizes) that a foreign State enjoys and should enjoy immunity because (and precisely because) it carries out certain public functions. It is the exercise of these public functions that deserves to be protected by the concept of State immunity. In this sense, State immunity, as reflective of the exercise of public functions, directly relates to the understanding and conceptualization of statehood as such. The theme of fulfillment of public functions has certainly been present in the restrictive doctrine, which had shifted the emphasis from the institution of the State to the character of the act. 71 However, it has never been articulated this explicitly, presumably being largely overshadowed by the nature-of-the-act/purpose debate. State immunity doctrine is about reconciling the forum State’s territorial jurisdiction with the foreign State’s sovereign equality. 72 In a way, the modern histoire of State immunity is thus a story about finding a balance between unreasonable or abusive interference by a forum State with the affairs of another State, and a legitimate exercise of (dominantly territorial) jurisdiction in line with the (changing) perceptions of statehood and its prerogatives, as well as the expectations with respect to remedies that should be available to individuals and other parties when they suffer a wrong through a State’s action. While the values of modern international society strongly support the position that States need to be held accountable for their actions and cannot be excessively shielded by State immunity (and other legal concepts), the State immunity doctrine arguably still needs to maintain a certain limit beyond which immunity should not be withdrawn just because the particular exercise of a State’s public functions may take the form of a private law transaction. The active involvement of domestic courts in interpreting State immunity in light of the changing demands of the international system has constantly secured the adjustment International Law (on-line version, http://opil.ouplaw.com/home/EPIL 2011) accessed 19 May 2014, paras. 32-39. 70 Fox H. and Webb P., The Law of State Immunity, 537. 71 The pertinence of the functional view with respect to State immunity was in fact advocated by Joan Donoghue, the current US Judge on the ICJ bench, in an early article in Yale Journal of International Law. Her position, however, arguably lacked appreciation for the distinct “function” in question in the context of immunities of State officials and in the context of State immunity. Donoghue J.E., ‘Taking the Sovereign Out of the Foreign Sovereign Immunities Act: A Functional Approach to the Commercial Activity Exception’ (1992) 17 Yale Journal of International Law 489. 72 Crawford J., Brownlie’s Principles of Public International Law , 489.

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