CYIL vol. 8 (2017)

PETR VÁLEK

CYIL 8 ȍ2017Ȏ

1. Introduction On July 1, 2017, the new Czech Act on Foreign Service entered into force (promulgated under No. 150/2017). For the Czech diplomats, this Act constitutes a long-overdue piece of legislation and a real “game changer” in their professional lives. Nevertheless, the key question is why the new Act on Foreign Service, which forms part of the domestic legal order of the Czech Republic, should be dealt with on the pages of the Czech Yearbook of Public and Private International Law. The answer is that numerous of its provisions are based on international law or regulate international law issues. These aspects of the Act on Foreign Service will be addressed in this article. In this context, it should be added that the domestic legislation of States is not irrelevant in international law, as it may form part of State practice – one of the two constitutive elements of customary international law. 1 In the present article, I will explain, at the outset, the reasons behind the new Act on Foreign Service and, subsequently, focus on the following parts of the Act: first, the principles for the exercise of foreign service, second, the categories of the representative offices and their functions, and third, the scope and limits of the consular protection. The purpose of this article is not to provide a detailed description or English translation of the whole Act on Foreign Service, as most of its provisions deal with the internal matters of this service, but rather to discuss these main cross points between this Act and international law. The Uneasy Path Towards the Act on Foreign Service The journey towards the adoption of the new Act on Foreign Service has been neither short, nor simple and it has been directly linked to the Act on State Service. During the times of the Czechoslovak Socialist Republic, there was no special law that would be applicable to the employees of State, as they were all covered by the 1965 Labor Code (with some exceptions, such as the special laws for the members of the armed forces and police). This situation made sense during the era of the Communist Governments of Czechoslovakia, as almost everybody worked in fact for the State – there was almost no private sector, all branches of the economy were run by the State. The universal application of the Labor Code to the majority of the working population had perhaps a symbolic significance too: during the times of the Austro-Hungarian Empire and the first Czechoslovak Republic, the State officers had a special status and enjoyed some privileges. This was hardly compatible with the Communist Party’s goal to achieve absolute equality in the society. With one Labor Code for everyone, this doubtful objective was fulfilled – at least formally. After the Velvet Revolution of 1989, the Czech Governments – dealing, first, with the dissolution of Czechoslovakia, and second, with the economic transformation – had different priorities than to draft rules on the status of the State officers. While the structure of the economy returned to normal and a viable private sector was created, the State officers were still subject to the same rules as any other employees. During the efforts to join the EU, it became clear, however, that this situation is untenable and that employees who exercise the State power deserve special rules. The Labor Code – making it relatively easy to hire, fire or 2.

1 ČEPELKA, Č., ŠTURMA, P., Mezinárodní právo veřejné (Public International Law), 1st edition, Prague, 2008, p. 99; BROWNLIE, I., Principles of Public International Law , 5th Edition, Oxford, 1998, p. 5.

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