Prosecutor v X

On By In Court of Appeal
Brussels Court of Appeal, X v Prosecutor, Nr. 2017/FA/707, 5 June 2018

The Brussels Court of Appeal states that according to article 1.1° of the 1954 Statelessness Convention, a person who is not considered a national by any State constitutes a stateless person. In assessing the statehood of Palestine, the Court takes into account the four criteria established in the 1933 Montevideo Convention and holds that, in accordance with the declaratory theory, the political existence of a State is not contingent on its recognition by other States. The Court determines that, based on these elements, Palestine must be considered as a ‘State’ hic et nunc.

According to the Court, the alleged absence of a Palestinian nationality legislation does not imply that the defendant ought to be regarded as a stateless person. Instead, what matters is that the State of Palestine considers the defendant as a Palestinian citizen by virtue of applicable national law. In particular, the defendant’s UNRWA Registration Card indicates Palestinian descent, whereas individuals of Palestinian origin and their descendents who sought refuge in Lebanon following the establishment of the State of Israel are recognized as nationals by the Palestinian National Authorities. It follows that the defendant is not a stateless person in the sense of the 1954 Convention.

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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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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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NML Capital Ltd & Yukos Universal Limited

On By In Constitutional Court
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.

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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).

R.B. v Kingdom of Morocco

On By In Labour Court of Appeal
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.

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