X {Ex parte}

Bruges First Instance Tribunal, X, Nr. 14/1508/B, 23 November 2015

The Tribunal examined a request of a man of Palestinian origin seeking recognition as a stateless person. Since statelessness presupposes an absence of ‘nationality’, and ‘nationality’ in turn necessitates a connection between an individual and a ‘State’, the Tribunal needed to determine whether Palestine qualified as such. Starting from the four cumulative conditions of the 1933 Montevideo Convention, the Tribunal accepts that Palestine fulfills the requirements of a permanent population and a defined (even if fragmented) territory. By contrast, it is less clear whether the Palestinian National Authority (PNA) qualifies as an ‘effective government’, since it only has limited powers and Israel still controls their airways, external borders, territorial waters, national registrations, taxes and functions in the government itself. In any case, according to the Tribunal, fulfillment of the Montevideo criteria is ‘manifestly meaningless’ if the Palestinian State is not internationally recognized. As a significant number of countries, including Belgium itself, has not recognized Palestine as such, the Tribunal cannot under present circumstances establish the existence of a sovereign Palestinian State. It follows that the applicant cannot be seen as having the ‘Palestinian nationality’ and must be regarded as being stateless.  

Rb. Brugge 23 november 2015, T.Vreemd 2016, afl. 2, 223.
AGENTSCHAP INTEGRATIE EN INBURGERING, “Palestijnse nationaliteit wordt niet erkend, staatloosheid dus niet uitgesloten”, T.Vreemd 2016, 509-510.

J.P.-A. v Kingdom of the Netherlands and Dutch Central Bank

Supreme Court, J.P.-A. v Kingdom of the Netherlands and Dutch Central Bank, Nr. C.14.0322.F/1, 23 October 2015

During the financial crisis of 2008, the Dutch State decided to buy the Dutch activities of the Fortis group instead of proceeding with the recapitalization as previously agreed to. In the wake of the events, a group of former shareholders decided to file a lawsuit against the Dutch State, as well as against the Dutch central bank (DNB), which they deemed complicit in the dismantling of the Fortis group.

In 2013, the Court of Appeal held that the Kingdom of the Netherlands and DNB enjoyed immunity from jurisdiction. In particular, the Court found that while both Belgium and the Netherlands had made a declaration pursuant to Article 24 of the European Convention on State Immunity (the Basel Convention), such declarations were without prejudice to the immunity from jurisdiction which foreign States enjoy in respect of acts performed in the exercise of sovereign authority. After careful consideration of the nature of the act, the context in which the act was done and the capacity in which the Dutch State had acted (as the guarantor of the State’s financial stability), taking into account the context in which the Dutch State acted (cf. the urgency and severity of the financial crisis and the absence of a private investor capable of intervening), the Court of Appeal concluded that the Dutch State had effectively acted in the exercise of its public authority and accordingly enjoyed immunity from jurisdiction. Furthermore, while DNB constituted a distinct legal entity, it equally enjoyed immunity from jurisdiction for ‘acts performed by the entity in the exercise of sovereign authority’ pursuant to Article 27(2) of the Basel Convention.

The Belgian Supreme Court adjudges that this conclusion was legally constituted and dismisses the appeal in cassation.

R.J.V.D.B. v Imperial Tomacco Ltd. and Gallagher Ltd.

Supreme Court, R.J.V.D.B. v Imperial Tobacco Ltd. and Gallagher Ltd, Nr. 14.0414.N, 26 May 2015

In this case, the claimant seeks annulment of a judgment of the Antwerp Court of Appeal, inter alia on the basis of an alleged breach of Article 22(3) of the Vienna Convention on Diplomatic Relations (VCDR). In particular, the claimant argues that a vehicle of the Ivorian embassy in London with a British diplomatic license plate be immune from search and seizure in the context of a criminal investigation in Belgium.  The Supreme Court recalls that Art. 22(3) VCDR regulates mutual obligations between the sending and receiving States. By contrast, neither Article 22(3) nor article 40 VCDR provide immunity from investigation or seizure of a means of transportation of a diplomatic mission that is not accredited in Belgium.

Central Bank of Iraq v Commerzbank AG, Prysmian Finland OY et al.

Belgian Supreme Court, Central Bank of Iraq v Commerzbank AG, Prysmian Finland OY et al., Nr. C.14.0459.N/1, 15 May 2015

The Belgian Supreme Court observes that the immunity from execution owed to foreign States pursuant to customary international law, treaty law or national law, is not absolute and is susceptible to waiver of immunity. Immunity from execution does not alter the fact that grievances regarding the seizability of goods must be brought before the court in a timely manner.

A. v Kingdom of Belgium

Brussels First Instance Tribunal, A. v Kingdom of Belgium, Nr. 2013/9033/A, 4 May 2015

The claimant is a Belgian national born in Palestine. He asserts that numerous products originating from Israeli settlements in occupied Palestinian land are commercialized in Belgium undr the label ‘Made in Israel’, in contravention with international law. According to A., authorizing this commercialisation makes Belgium complicit in the illegal occupation of Palestine and Israel’s violations of international humanitarian law. In light hereof, the claimant requests the Court to forbid the Belgian State to continue allowing the entry and sale of these products.

However, the Court declared his claim inadmissible on the grounds that A. did not have a personal, direct, concrete and legitimate interest. Contrary to what A. asserts, this interest cannot be derived from the direct applicability of jus cogens. Only people who have a direct and personal interest because of the violation of international laws, can turn to the courts.