CYIL 2014

KLARA POLACKOVA VAN DER PLOEG CYIL 5 ȍ2014Ȏ international law justify the conclusion that this juridical person – the foreign State – does not enjoy functional immunity, and that Czech courts have jurisdiction in these matters.” 79 A logical inference from this language would seem to be that Czech courts have jurisdiction over any and all employment disputes involving foreign States. However, such position would be quite radical in comparison with international standards. Both the general State practice and the UN Convention differentiate among various types of employment disputes, never lifting immunity for all types of employment disputes. 80 In deciding whether to grant immunity, courts in some jurisdictions have emphasized the importance of the location or the context of the contracted employment. If an employee is employed at whatever level at an embassy, consulate, military base or within a similar context, where a foreign State is engaged in sovereign activities, the courts in these jurisdictions will hold that immunity attaches because any inquiry into the foreign State’s conduct as employer in relation to such institution would excessively encroach on the State’s internal organization and sovereignty. 81 Elsewhere, courts have focused instead on the nature of the particular employee’s functions, upholding immunity only where an employee is specifically engaged in inherently sovereign activities. Employees engaged in menial duties, regardless of their place of employment, have been permitted to sue. 82 The UN Convention considers employment matters to be a special category and sets forth two grounds for immunity to attach: the character of activity performed by the employee and the content of the claim itself. States thus enjoy immunity in proceedings concerning (i) employees who have been recruited to perform “particular functions in the exercise of governmental authority” or fall within special categories, such as diplomatic agents; or (ii) a claim relating to the recruitment, renewal of employment, and reinstatement, or the dismissal or termination of employment 79 Ruling of the Supreme Court of the Czech Republic dated 25 June 2008, case No. 21 Cdo 2215/2007. 80 The key problem of immunity with respect to employment contracts between a State and an individual for work performed or to be performed in the forum State is the opposing interests of the two States involved. While the employer State has an interest in the forum State not interfering in its relationships with its own agents, the forum State has an interest in the protection of its local labor force and in the application of its labor laws. Hafner G., United Nations Convention on Jurisdictional Immunities of States and Their Property (2004), para. 25. 81 See , e.g. , Conrades v United Kingdom , 65 ILR 205; X v Argentina , 114 ILR 502; Muller v United States of America , 114 ILR 512; Sengupta v Republic of India , 64 ILR 352; Arab Republic of Egypt v Gamal Eldin, 104 ILR 673; Brazilian Embassy Employee Case , 116 ILR 625; Governor of Pitcairn v Sutton , 104 ILR 508. See also Garnett R, ‘State Immunity in Employment Matters’ (1997) 46 International & Comparative Law Quarterly 81, 83 and O’Keefe R., Tams C.J. and Tzanakopoulos A. (eds), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (Oxford University Press 2013), 187-188. 82 See , e.g. , British Embassy Driver Case , 65 ILR 20; S v Republic of India , 82 ILR 13; Landano v United States of America , 116 ILR 636; M. v Arab Republic of Egypt , 116 ILR 656; R v Republic of Iraq , 116 ILR 664; Saignie v Embassy of Japan , 113 ILR 492; Barrandon v United States of America , 116 ILR 622 . See also Garnett R., State Immunity in Employment Matters, 83 and O’Keefe R. et al., The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary , 188-189.

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