Tag: Immunity

B. A. M. vs Republic of Indonesia

On By In Supreme Court
Supreme Court, B. A. M. vs Republic of Indonesia, Nr. S.22.0043.F, 8 April 2024

The case concerns an appeal in cassation against a judgment of the Brussels Labour Court of Appeal which had upheld the immunity of Indonesia in an employment dispute lodged by an Indonesian national formerly employed at the embassy in Brussels (see here). In particular, the claimant argued that the Labour Court had erred in law by holding that Article 11(2)(e) of the UN Convention on State Immunity (UNCSI) does not reflect customary international law insofar as it conditions the application of State immunity in employment disputes between a foreign State and a national of that State on the latter person not having permanent residence in the forum State.

Rather than addressing the specific provision of the UNCSI, the Supreme Court reaffirmed that State immunity attaches only to acts performed in the exercise of public powers (acta jure imperii), to the exclusion of acta jure gestionis.

The Supreme Court further emphasized that there is no rule of customary international law according to which the exception to State immunity for acta jure gestionis would not apply when the claimant is a national of the foreign State, regardless of the claimant’s permanent residence. Accordingly, the claim asserting that customary international law prevents the forum State from exercising jurisdiction over a foreign State in matters relating to its acta jure gestionis, at least when the claimant is a national of that foreign State residing permanently in the forum State, was deemed unfounded in law.

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X v Kingdom of Saudi Arabia

On By In First Instance Tribunal
Ghent First Instance Tribunal, X v Kingdom of Saudi Arabia, Nr. 18/3932/A, 17 October 2022

A Belgian businesswoman sought compensation from the Kingdom of Saudi Arabia, claiming in particular that an official press release, in which she had been presented as  being unreliable, had caused her financial and moral damage. The Court held, however, that the passing on of information on the applicant by the Saudi Embassy in Belgium to the Saudi Ministry of Trade and Industry constituted an act ‘jure imperii’, benefiting from State immunity. By reference to Article 12 of the 2004 UN Convention on State Immunity and the preparatory works of the International Law Commission, the Court further held that the ‘territorial tort’ exception does not apply to reputational damage and was accordingly inapplicable. In turn, the publication of a press release on the applicant within Saudi Arabia did not fall within the jurisdiction of the Belgian courts.

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B.A.M. v Republic of Indonesia

On By In Labour Court of Appeal
Brussels Labour Court of Appeals, B.A.M. v Republic of Indonesia, Nr. 2018/AB/868, 2 November 2021

The plaintiff, a former member of the service staff at the Indonesian embassy in Brussels, was challenging his dismissal. Affirming the appealed judgment, the Brussels Labour Court of Appeals upheld Indonesia’s State immunity from jurisdiction. With a view to determining the applicable rules of customary international law, the Court relied upon the United Nations Convention on Jurisdictional Immunities of States and Their Property. More specifically, it focused on Article 11(2)(e), which maintains the immunity where the employee is a national of the employer State – the plaintiff had indeed Indonesian citizenship. The Court considered that the limitation in Article 11(2)(e), that sets immunity aside where the employee has its permanent residence in the State of the forum, does not reflect an existing rule of customary international law. The Court went on to add that, in any event, the plaintiff had failed to demonstrate a permanent residence in Belgium at the time when the proceedings were instituted.

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Labour Prosecutor et al. v X and X

On By In First Instance Tribunal
Brussels First Instance Tribunal, Labour Prosecutor et al. v X et al., Nr. 21.N.003187, 15 December 2021

A former diplomat and his wife are condemned in absentia for the crimes of human trafficking and unlawful imprisonment on account of their exploitation of a domestic worker. The Tribunal asserts that, pursuant to Article 39 of the Vienna Convention on Diplomatic Relations, a diplomat whose function has come to an end enjoys immunity only in respect of those acts that were performed in the exercise of this function. The exploitation of domestic workers in the diplomat’s private residence does not qualify as such, and is accordingly not covered by diplomatic immunity.

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Prosecutor v A.S., N.N. et al.

On By In First Instance Tribunal
Antwerp First Instance Tribunal, Prosecutor v A.S., N.N. et al, Nr. 20/A/3763, 4 February 2021

The Tribunal of First Instance imposes heavy prison sentences on four individuals of Iranian origin, including an diplomat accredited to the Iranian embassy in Austria, for planning a terrorist attack. The Tribunal finds that the diplomat cannot invoke immunity from jurisdiction under Article 31 VCDR, since this only applies in the bilateral relationship between the sending and the receiving State. In addition, the diplomat was not in transit in the sense of Article 40 VCDR. This provision must be read restrictively, and does not extend to situations where a diplomat is on a holiday abroad. The Tribunal also observes that the activities of which the diplomat is accused cannot form part of the normal diplomatic function, and that it cannot have been the intention of the States parties to the VCDR for such acts to be covered by diplomatic immunity.

According to the Tribunal, the immunity of Iran itself is not triggered since Iran or its secret service are not a party to the proceedings. With respect to the residual functional immunity of the diplomat as a State organ, the Tribunal asserts that such immunity extends only to acts performed in the exercise of official functions. The planning of a terrorist attack can be presumed not to be part of such tasks. Nor did Iran claim responsibility for this conduct. In any case, the Tribunal finds it difficult to accept that there is an exception to State immunity for commercial acts, but not for crimes against humanity that flout the basic right to life.

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