САВРЕМЕНЕ ТЕНДЕНЦИЈЕ РАЗВОЈА ИМУНИТЕТА ДРЖАВЕ
CONTEMPORARY TENDENCIES IN THE DEVELOPMENT OF THE IMMUNITY OF THE STATE

Summary/Abstract: During the last decade, we have been witnessing a very significant transformation in the legislatures and judicial practice of a significant number of states regarding the immunity of the state. First of all, new viewpoints have been formed as a reply to the significant increase in the activities of the state beyond its sovereign functions; they have been formed in a climate created by the violent and unbalanced critisizing of the immunity of the state. The dilemma between the absolute and restricted immunity does not constitute the starting point and the question over which the diverse viewpoints should be confronted any more. The main question is the option between the moderate and the radical shrinking of the immunity of the state; in addition, there is the concern over the possible abuse of too much immunity, and also that a too radical shrinking of it shall endanger the execution of sovereign functions of the state. The problems concerning the methods and scope of this shrinking are in the focus of the matter. Several characteristic instruments used in this process, which are the cause of complex problems and contraversies, may be selected. They are: the nature of activity as the measure for the determination of which activities are „ex iure gestionis”; the tacit renounciation of immunity; the manner of establishment of the relationship between immunity and the international judicial jurisdiction; finally, the closer ties between the executive immunity and the jurisdictional immunity. It may be stated as a fact that Yugoslav law has not become involved in the trend to a necessary degree. The directing to the regulations of international law by the use of blanket norms does not offer a satisfactory solution any more, at the moment when the concept of international law pertaining to absolute immunity has derogated, without being substituted by new regulations in the character of norms of international law. New events and situations seek a more active approach not only in national but also in international legislature; that is the only way to express our principles and interests in the newly created situation.

• Details
• Contents