Author: Amber De Coninck

Touax v Touax Rom

On By In Supreme Court
Supreme Court, Touax v Touax Rom, Nr. C.13.0528.F, 9 February 2017

During the 1999 Kosovo war, two shipping companies operating boats on the Danube saw their commercial activities come to a halt because of the bombing of several bridges over the river by NATO. They turned to the Kingdom of Belgium to receive compensation for their economic losses, relying on article 1382 of the civil code. According to the claimants, Belgium’s participation in NATO’s military operation constituted a breach of the prohibition on the use of force enshrined in article 2(4) of the UN Charter and accordingly qualified as a tort.

In 2013, the Brussels Court of Appeal rejected the appeal, holding that a private person cannot invoke a violation of Article 2(4) UN Charter because the provision lacks direct effect.

The judgment was later upheld by the Supreme Court. The Supreme Court found that the claimants did not invoke any fact – other than the alleged breach of Article 2(4) UN Charter – of such nature as to constitute an error of conduct. It also dismissed the argument that the existence of a tort deduced from a provision of an international treaty does not require that this provision has direct effect in the internal legal order. Lastly, the Supreme Court did away with the alleged violation of the jus in bello resulting from Belgium’s participation in the bombing of non-military targets: as the bridges over the Danube constituted a military objective, their destruction could not constitute a tort.

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F.H-E. v Kingdom of Belgium, Belgocontrol et al.

On By In Supreme Court
Supreme Court, F.H.-E. v Kingdom of Belgium, Belgocontrol et al., Nr. C.11.0521.F, 4 April 2014

After the bankruptcy of Air Zaïre, the Congolese minister of transportation designated Scibe Airlift as the temporary instrument of exploitation of the DCR’s air traffic rights under the 1965 air services agreement between the DCR and Belgium. This designation was subsequently approved by his Belgian colleague.

The bankruptcy curator for Air Zaïre challenged the latter move, arguing that the approval constituted a fault within the meaning of article 1382 of the Belgian civil code, as the abovementioned agreement, which had not been made public, designated Air Zaïre as the holder of DCR’s air traffic rights.

The Supreme Court recalled the judgement of the Court of Appeal, which held that, by accepting the designation of Scibe Airlift, Belgium had simply complied with its obligations under the 1965 agreement; that a State which signs an international treaty must implement that treaty in good faith and cannot therefore be accused of wrongdoing when it fulfils those obligations; and that the claimant had argued in vain that the Belgian State had deprived her of her rights and could not have done so by virtue of an undisclosed treaty, which could not be held against it. By so doing, the Court of Appeal had merely raised against the claim before it the limits which Article III of the 1965 placed on the right that the claimant sought to derive from that provision. The action for annulment was accordingly dismissed.

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M.A.H.

On By In Supreme Court
Supreme Court, M.A.H., Nr. AR P.13.1856.N, 3 December 2013

In 2013, the Belgian police were able to arrest M.A.H., suspected to be involved in the hostage-taking of a Belgian merchant vessel off the Somali coast, after he was lured to Belgium under the pretence that he could be a part of a movie project about maritime piracy.
M.A.H. relied on diplomatic immunity, but the Belgian Supreme Court rejected this claim. In particular, the Court held that M.A.H.’s alleged diplomatic passport was a mere travel document delivered by the previous government, whereas the Somali documents qualifying him as an ‘anti-piracy officer” did not entail any diplomatic status either. What is more, his reasons for entering Belgium were purely private and had nothing to do with exercising any public function. The Belgian Foreign Ministry has also confirmed in writing that M.A.H. did not qualify for diplomatic immunity.

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