A. v Kingdom of Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, A. v Kingdom of Belgium, Nr. 2013/9033/A, 4 May 2015

The claimant is a Belgian national born in Palestine. He asserts that numerous products originating from Israeli settlements in occupied Palestinian land are commercialized in Belgium undr the label ‘Made in Israel’, in contravention with international law. According to A., authorizing this commercialisation makes Belgium complicit in the illegal occupation of Palestine and Israel’s violations of international humanitarian law. In light hereof, the claimant requests the Court to forbid the Belgian State to continue allowing the entry and sale of these products.

However, the Court declared his claim inadmissible on the grounds that A. did not have a personal, direct, concrete and legitimate interest. Contrary to what A. asserts, this interest cannot be derived from the direct applicability of jus cogens. Only people who have a direct and personal interest because of the violation of international laws, can turn to the courts.

Download

NML Capital Ltd v Republic of Argentina

On By In Supreme Court
Belgian Supreme Court, NML Capital Ltd v Republic of Argentina, Nr. C.13.0537.F, 11 December 2014
ECLI:BE:CASS:2014:ARR.20141211.4

According to the Court, the right of access to court, as enshrined in Article 6 ECHR, cannot be invoked to force a State to set aside the customary rule of immunity from execution, which seeks to ensure the proper functioning of diplomatic missions and to promote friendly relations between sovereign States. The Court rejects the argument that immunity from execution must be set aside when no alternative means of legal redress are available.

Download

F.H-E. v Kingdom of Belgium, Belgocontrol et al.

On By In Supreme Court
Supreme Court, F.H.-E. v Kingdom of Belgium, Belgocontrol et al., Nr. C.11.0521.F, 4 April 2014

After the bankruptcy of Air Zaïre, the Congolese minister of transportation designated Scibe Airlift as the temporary instrument of exploitation of the DCR’s air traffic rights under the 1965 air services agreement between the DCR and Belgium. This designation was subsequently approved by his Belgian colleague.

The bankruptcy curator for Air Zaïre challenged the latter move, arguing that the approval constituted a fault within the meaning of article 1382 of the Belgian civil code, as the abovementioned agreement, which had not been made public, designated Air Zaïre as the holder of DCR’s air traffic rights.

The Supreme Court recalled the judgement of the Court of Appeal, which held that, by accepting the designation of Scibe Airlift, Belgium had simply complied with its obligations under the 1965 agreement; that a State which signs an international treaty must implement that treaty in good faith and cannot therefore be accused of wrongdoing when it fulfils those obligations; and that the claimant had argued in vain that the Belgian State had deprived her of her rights and could not have done so by virtue of an undisclosed treaty, which could not be held against it. By so doing, the Court of Appeal had merely raised against the claim before it the limits which Article III of the 1965 placed on the right that the claimant sought to derive from that provision. The action for annulment was accordingly dismissed.

Download

M.A.H.

On By In Supreme Court
Supreme Court, M.A.H., Nr. AR P.13.1856.N, 3 December 2013

In 2013, the Belgian police were able to arrest M.A.H., suspected to be involved in the hostage-taking of a Belgian merchant vessel off the Somali coast, after he was lured to Belgium under the pretence that he could be a part of a movie project about maritime piracy.
M.A.H. relied on diplomatic immunity, but the Belgian Supreme Court rejected this claim. In particular, the Court held that M.A.H.’s alleged diplomatic passport was a mere travel document delivered by the previous government, whereas the Somali documents qualifying him as an ‘anti-piracy officer” did not entail any diplomatic status either. What is more, his reasons for entering Belgium were purely private and had nothing to do with exercising any public function. The Belgian Foreign Ministry has also confirmed in writing that M.A.H. did not qualify for diplomatic immunity.

Download

V. et al v the Holy See

On By In First Instance Tribunal
Ghent First Instance Tribunal, V. et al v the Holy See, Nr. 11/2648/A, 1 October 2013

Some 39 plaintiffs who claim to have been victims of sexual abuse as minors by ministers of the Roman Catholic Church in Belgium, argue that in addition to the damages stemming from the abuse itself, they also suffered damages due to the church authorities’ year-long refusal or failure to acknowledge and address the problem. The Holy See objects that the Court has no jurisdiction to adjudicate the claims against it as it enjoys immunity from jurisdiction.

The plaintiffs argue that the Holy See can only enjoy state immunity in its capacity as the government of Vatican City State, but not when it is sued ‘on behalf of the Pope’ in a civil court as the government of the Roman Catholic Church. The Court, however, rejects this argument as it would undo the de facto recognition of the Holy See as foreign sovereign by the Belgian State. The Court, moreover, dismisses the argument by the plaintiffs that the alleged policy errors of the Holy See were ‘acta jure gestionis’ for which it cannot rely on immunity from jurisdiction. The Court also confirms that the invocation of such immunity from jurisdiction does not entail a violation of the plaintiffs’ right of access to justice under the ECHR.

Download