Supreme Court, Kingdom of Belgium v A.A., Nr. C.15.0269.F, 29 September 2017
The Belgian Supreme Court overturns a verdict by the Brussels Court of Appeal of 9 September 2014. The Court of Appeal held that, where a national is detained abroad and is the victim of attacks against his or her physical integrity and of violations of jus cogens, Articles 5 and 36 of the Vienna Convention on Consular Relations (VCCR) impose an obligation on the State to provide consular assistance.
The Supreme Court contradicted this interpretation. According to the Supreme Court, the relevant provisions of the VCCR only create rights that can be invoked by the sending State vis-à-vis the host State, but do not impose an obligation to extend consular assistance to the State’s nationals abroad, and do not confer any right that can be claimed by those nationals. While the fact that a national abroad suffers treatment that contravenes jus cogens obliges the State to employ all measures it deems appropriate in order to put an end to this situation, it does not as such create an obligation for the State to provide consular assistance to the person concerned.
Constitutional Court, NML Capital Ltd & Yukos Universal Limited, Nr. 48/2017, 27 April 2017
The Constitutional Court examines two actions for annulment filed by the companies NML Capital and Yukos Universal against the law of 23 August 2015 introducing Article 1412quinquies of the Judicial Code, which provides for a far-reaching immunity from execution for property of foreign States or international organizations. In light of the case-law of the Strasbourg Court, the Court acknowledges that restrictions on the right to access to Court and the right to property that stem from immunity of execution for property of foreign States are accepted inasmuch as they reflect generally recognized international immunity rules. What is more, Article 19 of the 2004 UN Convention on State Immunity, while not yet in force, can be regarded as indicative of present international custom on States’ immunity from execution.
The Court notes that the requirement under Article 1412quinquies that a State waiver from immunity from execution be ‘express’ is in accordance with the aforementioned Convention and international custom. By contrast, the additional requirement that such waiver must also be ‘specific’ goes beyond what international custom posits inasmuch as this requirement of specificity applies not only to diplomatic property (including embassy bank accounts), consular property, property of special missions, or international organizations (which is permissible), but also to other property of a foreign State more generally. The provision is indeed annulled to the extent that it extends the specificity requirement to the latter. By contrast, the Court upholds the requirement in Article 1412 quinquies that any attachment of the property of a foreign State presupposes prior approval by the juge de saisie.
VANDERSCHUREN, J., "Satisfecit constitutionnel partiel pour l’article 1412quinquies du Code judiciaire", JT 2018, afl. 6737, 560-564 and http://jt.larcier.be/ (6 july 2018).
Antwerp Labour Court of Appeal, R.B. v Kingdom of Morocco, Nr. 2015/AA/536, 17 March 2017
R.B., a person of Belgian-Moroccan nationality, who used to work for the Moroccan Consulate-General in Belgium, was seeking the payment of severance pay and of overdue salary after his mandate was terminated.
Notwithstanding plaintiff’s suggestion that he was merely engaged in simple administrative tasks, the Antwerp Labour Court held that the mandate of the plaintiff related to ‘acta jure imperii’, in particular as his tasks could be qualified as consular functions in the sense of Article 5(e) of the Vienna Convention on Consular Relations of 1963, for which the state of Morocco was entitled to immunity from jurisdiction. Moreover, the plaintiff could not prove the existence of an employment contract instead of a statutory employment. For the sake of completeness, the Court tested Morocco’s state immunity against the 2004 UN Convention on Jurisdictional Immunities of States and their Property, which it considered to reflect customary international law, and upheld the immunity of Morocco under several of the exceptions contained in Article 11(2) of that treaty relating to employment contracts.
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.
Supreme Court, Prosecutor v X, Nr. C.16.0325.N, 23 January 2017
The Belgian Supreme Court examines a judgement of the Ghent Court of Appeal which previously held that Palestine cannot at present be regarded as a ‘State’, implying that persons of Palestinian origin may be eligible for protection as stateless persons. By holding, on the one hand, that the statehood of Palestine must be assessed by reference to the criteria of the 1933 Montevideo Convention, while finding, on the other hand, that recognition by third States is decisive, the judgement contains a contradictory statement of reasons. The judgement is accordingly annulled.