CYIL vol. 13 (2022)

KATARÍNA ŠMIGOVÁ CYIL 13 ȍ2022Ȏ fulfilment of their tasks. The general purpose of immunities is to promote cooperation and friendly relations between states. The origin of the concept of immunity is justified by various theories. 14 The theory of extraterritoriality was the first to be applied, according to the fiction of which the representative of the state is located on the territory of the sending state and is therefore exempt from the jurisdiction of the receiving state. Based on the representation theory, the representative of the state participates in the immunity of their state. The youngest, currently prevailing theory is the theory of functionality. It justifies the special status of the state representative by the necessity to perform indispensable state functions. 15 However, the existence of the institution of immunity and its recognition does not mean that violations of international law are respected. 16 In case of the most serious crimes under international law which are often regulated by ius cogens norms, a distinction must first be made between the forum in which the perpetrators of these crimes could be prosecuted and the type of immunities that may not be applied. In some cases, the jurisdiction of the competent judicial authority is also questionable in terms of the passage of time (jurisdiction ratione temporis ). In case of high state representatives, these are persons who enjoy both functional and personal immunity. The highest authority that represents the state in its international relations, namely the head of state, is also an individual that represents the state without being itself a subject of international law. In the past, the person of the monarch was inextricably linked with the embodiment of the state, which is also expressed by the well-known saying - L’Etat, c’est moi - the state, that’s me. 17 In those times, the head of state was identical to the state it represented and could not be brought before the court of another state. Nowadays, the head of state as a private person is separated from the bearer of national and international powers and functions. Although the head of state is currently “only” a formal representative of the state, they still embody and represent it. In the field of international customary law, a generally valid rule has been created that the head of state in office enjoys fundamentally full, so-called absolute, personal immunity. As already mentioned, similar immunity is granted, e.g., also a Prime Minister or a Minister of Foreign Affairs. 18 In case of personal immunity, its creation, duration, and termination are governed by a appointment to an office and remaining in it. The rule of absolute immunity applies indefinitely only as long as its bearer is in office. After the end of the function, the rule of the so-called relative immunity is applied, for which it is necessary to distinguish between immunity ratione personae and immunity ratione materiae . 19 If a representative of a state acts as a representative of their office, it is ratione materiae , i.e., acting in an official capacity ( acts performed in an official capacity ). 20 In this case, the representative of the state is therefore protected even after the end of the performance of 14 ILC Yearbook , 1958, vol. II, pp. 94–95. 15 See Preamble of the Vienna Convention on Diplomatic Relations. 16 Arrest Warrant Case , op. cit ., para. 60 et seq. 17 A saying attributed to Louis XIV, King of France, by which he emphasized the uniqueness and exclusivity of his position. 18 Arrest Warrant Case , op. cit ., para. 51. 19 AKANDE, D., SHAH, S., Immunities of State Officials, International Crimes and Foreign Domestic Courts: A Rejoinder to Alexander Orakhelashvili, In: 22 (3) European Journal of International Law 2011, p. 817. 20 UN International Law Commission, The fourth report on Immunity of State officials from foreign criminal jurisdiction, 67 th session, A/CN.4/686, 29 May 2015, p. 8.

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