Category: Supreme Court

United States of America v P.V.N.

On By In Supreme Court
Supreme Court, United States of America v P.V.N., Nr. S.15.0051.N/2, 4 March 2019

The Belgian Supreme Court examines a judgement of the Brussels Labour Court of Appeal. The case concerns a dispute involving an employment contract between the USA and a private person, P.V.N., who worked for the US embassy in Belgium and demanded compensation after being dismissed in 2010.

The Supreme Court holds that, according to international customary law and, as provided by Article 11(1) of the 2004 Convention on Jurisdictional Immunities of States and their Property, a foreign state can only invoke immunity from jurisdiction in the context of employment disputes when a number of criteria are met, including that a person must be appointed for the performance of certain acts performed in the exercise of public authority (‘acta jure imperii’).

The Brussels Court of Appeal previously established that, while the defendant performed certain preparatory acts with regard to acts involving the exercise of public authority, he did not have the authority to sign and bind the USA. Consequently, such acts could not of themselves be considered to entail the exercise of public authority for which immunity from jurisdiction can be invoked. The Supreme Court confirms that the judgement of the Court of Appeal was properly motivated.

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A.N.H. {Ex parte}

On By In Supreme Court
Supreme Court, A.N.H., Nr. C.18.0400.N, 18 February 2019

The Court holds that a ‘State’ can be said to exist when the criteria laid down in the 1933 Montevideo Convention are fulfilled, and that the creation of a State is, in principle, not contingent on its recognition by other States. In light hereof, the Ghent Court of Appeal did not err in regarding the claimant as a Palestinian national, rather than a Stateless person. In particular, the Supreme Court rejects the claimant’s argument that Palestine could not be qualified as a State due to a lack of recognition by the international community.

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Kingdom of Belgium v A.A.

On By In Supreme Court
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.

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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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Prosecutor v X

On By In Supreme Court
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.

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