Confederation of Christian Trade Unions and General Federation of Labour of Belgium v United States

Labour Court of Appeal Brussels, Confederation of Christian Trade Unions and General Federation of Labour of Belgium v United States, A.R. 2010/AB/1214, 3 May 2012

The jurisdictional immunity of states is a rule of customary international law that prohibits the jurisdictions of one state from exercising its jurisdictional power over another state that has not consented. However, this immunity is limited: it concerns acts relating to sovereignty, not administration. In principle, the states may not invoke jurisdictional immunity before a court of another state in proceedings relating to employment contracts. However, no exception to the states’ jurisdictional immunity is provided for collective labor relations. Disputes concerning the regulations on the establishment of works councils are collective and not individual. The primacy of access to justice (Article 6 of the ECHR) over the rule of jurisdictional immunity and immunity from execution presupposes that the person against whom the immunity is asserted does not have other reasonable means of effectively obtaining the protection of the rights guaranteed to him by the ECHR. What matters in this regard is not that an action can be brought in the state of residence of the plaintiffs or that certainty is provided as to the application of the law of that state by the foreign jurisdiction, but that that jurisdiction (or the body of the international organization to which an internal action can be brought, as in the cases submitted to the Supreme Court) provides the guarantees of impartiality and independence of the court.

M.-N.F., I.S. et al. v Kingdom of Belgium, M.L. et al.

Brussels First Instance Tribunal, M.-N.F., I.S. et al. v Kingdom of Belgium, M.L. et al., Nr. 04/4807/A, 8 December 2010

In the early days of the Rwandan genocide of 1994, an estimated 2.000 men, women and children were massacred when a Belgian contingent of the UNAMIR peacekeeping operation abandoned the school facility where these persons had sought refuge. Several relatives of the victims brought  proceedings against the Belgian government and three former officers of the Belgian ‘KIBAT’ contingent seeking compensation. In its interlocutory judgement, the Court dismisses objections that the claims had expired. In addition, the Court asserts that the decision to evacuate the ‘ETO’ school facility was taken under the auspices of the Belgian government and not UNAMIR. Furthermore, the Court emphasizes that the defendants could not harbor any illusions as to the fate that awaited the refugees upon the withdrawal of the Belgian peacekeepers, and that the Rwandan refugees had lost a chance of survival as a result of the retreat of KIBAT.

C. RYNGAERT, Oxford Reports on International Law in Domestic Courts, 2010, 1604.

Western European Union v S. M.

Belgian Supreme Court, Western European Union v S. M., Nr. S.04.0129.F, 21 December 2009

The assertion that immunity is on the same level as the ECHR, which considers access to the courts to be a fundamental right, must be made with the necessary caution. The international organisation is an actor of international law, whereas the proper administration of justice takes place -in principle- within the State. Moreover, international organisations are not party to international instruments such as the ECHR. Of course, this does not mean that the principles contained in international human rights treaties are not applicable to international organisations. Nevertheless, the Supreme Court is of the opinion that the judge who establishes that a conflict has arisen between two norms of international law that also apply in the internal legal order (access to the courts and immunity) and that are invoked respectively by the parties in the dispute, may not give precedence to one norm over the other.

B.A.R. Belgium, NV Sabena and Deutsche Lufthansa AG v Municipality of Zaventem

Council of State, B.A.R. Belgium, NV Sabena and Deutsche Lufthansa AG v Municipality of Zaventem; Belgian State v Municipality of Zaventem. Judgment Nr. 144.081, 3 May 2005

Article 15 of the 1944 Chicago Convention on Civil Aviation – which was duly ratified by Belgium and published in the Official Gazette – stipulates that ‘[n]o fees, dues or other charges shall be imposed by any contracting State in respect solely of the right of transit over or entry into or exit from its territory of any aircraft of a contracting State or persons or property thereon’. According to the Council of State, it is clear from the language and intention of the States Parties that this provision is self-executing. Accordingly, the applicants can succesfully invoke the provision to annull a decree of the municipality of Zaventem introducing a tax on airlines flying to and from Brussels international airport.

League of Arab States v T. M.

Belgian Supreme Court, League of Arab States v T.M., Nr. S.99.0103.F/1, 12 March 2001

The Supreme Court ruled that international norms (in casu the immunity from jurisdiction of an international organisation) can only be part of the internal legal order once they bind the Belgian state. In this case, although there was a headquarters agreement between Belgium and the League of Arab States, this agreement had not (yet) been ratified by the Federal Parliament (Chamber of Representatives). The Belgian Constitution states in art. 167 that treaties only come into effect after they have received the assent of the Chamber of Representatives. Although the Community Parliaments had already accepted the ratification, this was not yet the case for the federal Parliament. Consequently, the immunity plea was rejected, since no rights could be derived from a ‘treaty’ that was not ratified by the federal parliament. Rights could not be derived from a treaty that did not meet the (full) requirements of ratification. The League made another attempt by referring to the 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations to support the immunity exception. This treaty, however, still lacked the number of ratifications required for its entry into force. Also, the reasoning of the League that the immunity of international organisations would constitute a general principle of law was not accepted.