N.A. v African Union

On By In Labour Court
Brussels Labourt Court, N.A. v African Union, Nr. 16/7777/A, 10 January 2018

The plaintiff, who had worked for the Permanent Mission of the African Union in Brussels based on successive short-term contracts, was disputing the termination of his appointment. The Brussels Labour Court upheld the African Union’s immunity from jurisdiction pursuant to a 1985 headquarters agreement concluded with Belgium. The plaintiff had sought to challenge the immunity based on the individual’s right of access to a court (Art. 6 ECHR). However, the Court held that neither the African Union nor its Member States are bound by the ECHR; that the Belgian State, by approving the headquarters agreement and the immunity it provides for, had intended to depart from Article 6 of the (previously ratified) ECHR; and that, at any rate, the restriction on the plaintiff’s right of access to a court was not disproportionate since he had several reasonable alternative remedies available to him – including an appeal before the African Union’s Administrative Tribunal – which he refrained from using.

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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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Federal Prosecutor, Republic of Turkey and F.A. v U.S., K.R. et al.

On By In First Instance Tribunal
Council Chamber of the Tribunal of First Instance, Federal Prosecutor, Republic of Turkey and F.A. v U.S, K.R. et al., 3 November 2016

The Council Chamber of the Tribunal of First Instance adjudges that the PKK should be considered as a non-State armed group that is party to a non-international armed conflict with the Turkish State under international humanitarian law (IHL). In accordance with the IHL exclusion clause of Article 141bis of the Belgian Criminal Code, this qualification entails that the 42 defendants cannot be prosecuted for ‘terrorist offences’ in connection with their involvement in that conflict as members of the PKK.
In order to establish the intensity and degree of organization required to conclude to the existence of a non-international armed conflict, the Chamber (implicitly) draws from a range of factors, including: the PKK’s armed activities since 1984, the high number of these activities, the use of heavy weapons, the existence of a chain of command, the position of the International Committee of the Red Cross, the formal initiative undertaken by the PKK to comply with international conventions, the territorial control of the PKK over parts of South-East of Turkey (as demonstrated by a call for armistice by the PKK leader in 2013), as well as the conduct of negotiations between the PKK and Turkey.

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M.R. v La Posterie

On By In Supreme Court
Supreme Court, M.R. v La Posterie, Nr. C.16.0039.N, 28 October 2016
ECLI:BE:CASS:2016:ARR.20161028.6

The Belgian Supreme Court adjudges that the immunity of jurisdiction of a member of the United States Permanent Representation to NATO (as per Article XII of the Ottawa Agreement and Articles 29-31 of the Vienna Convention on Diplomatic Relations (VCDR)) does not violate the right of access to court (Article 6 ECHR). In a case involving a dispute over the payment of rent arrears, the lower court had previously held that such immunity would violate the right of access to court, in light of the fact that the proceedings would “in no way compromise” the proper functioning of the US Permanent Representation or NATO itself. According to the Supreme Court, however, this approach was not legally justifiable. The Supreme Court further recalls that lawsuits regarding the lease of a private home do not fall within the exception to immunity from jurisdiction under Article 31 (1) (a) VCDR.

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