Tag: Immunity of International Organizations

A.C. v NATO and Belgium

On By In Supreme Court
Supreme Court, A. C. v NATO and Belgium, Nr. C.20.0313.F/1, 7 November 2024

In a judgment of 23 November 2017, the Brussels Court of Appeals upheld NATO’s immunity from jurisdiction in tort proceedings brought by relatives of individuals killed during a NATO strike in Libya in 2011. A subsequent appeal in cassation against the judgment was dismissed by the Supreme Court.

The Supreme Court confirms that the immunity from jurisdiction of international organizations serves a legitimate purpose. Whether its application constitutes a proportionate restriction of the right to access to court in the sense of Article 6(1) ECHR must be determined, not on the basis of the nature of the substantive right that is allegedly breached, but in light of the existence of other reasonable means to protect the rights guaranteed by the ECHR. Such reasonable means can notably consist of remedies available in a country that does not grant immunity of jurisdiction to an international organization. What is more, as indicated by the Court of Appeals, an alternative remedy could exist in a judicial procedure brought against the NATO Member State that carried out the contested airstrikes. The fact that the latter State had not been identified, and that the Court of Appeal had not established a concrete possibility for the claimant to identify this State, was not deemed not alter the foregoing.

Multiple sub-branches addressed different procedural and legal grounds were all found inadmissible or without merit. Thus, the Supreme Court i.a. held that, for lack of direct effect in Belgium, the UN Security Council resolutions invoked by the claimant did not constitute a law the violation of which could underpin an appeal in cassation, and that relevant passages from UNSC resolutions did not constitute binding decisions in the sense of Article 25 UN Charter. In the end, the Supreme Court dismissed the appeal and concluded that NATO’s immunity stands and cannot be bypassed.

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Sipos Szabo v NATO and the Kingdom of Belgium

On By In Labour Court of Appeal
Brussels Labour Court of Appeal, Sipos Szabo v North Atlantic Treaty Organization (NATO) and the Kingdom of Belgium, 2018/AB/22, Nr. 28 October 2020
ECLI:BE:CTBRL:2019:ARR.20190207.11

The case concerned a medical doctor who claimed an entitlement under NATO’s Civilian Personnel Regulation (CPR) to an indefinite contract and had brought its claims before NATO’s Administrative Tribunal. NATO’s Tribunal ruled it had no jurisdiction to entertain the claims because the plaintiff concluded successive sui generis contracts that NATO was entitled to offer. Those contracts did not bring the plaintiff within the realm of the CPR, while the jurisdiction of NATO’s Tribunal is limited to alleged breaches of the CPR. The plaintiff brought her claims before Belgian courts, host nation of NATO, and argued on the basis of ECtHR case-law relating to the interplay between the right to a judge and International Organizations’ immunity that NATO’s immunity must be set aside because she did not have access to an effective remedy within NATO’s legal system as NATO’s Tribunal declared itself without jurisdiction and arguably did not consider the merits of her claims. NATO’s immunity was upheld before Brussels’ Labour Tribunal and, on appeal, by the Brussels Labour Court of Appeal which agreed with NATO that the plaintiff’s argument was based on a wrong premise, that NATO’s internal justice system was effective and independent, that the plaintiff was heard and received an articulated legal answer to her claims following due process.

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Russian Federation v Godeau Finances

On By In Supreme Court
Supreme Court, Russian Federation v Godeau Finances, Nr. C.18.0282.F/1, 6 December 2019

The Supreme Court addresses a case by the Brussels Court of Appeal between a Belgian Real Estate company and the Russian Federation. The company sought compensation after the Russian Federation renounced the acquisition of a set of real estate properties intended for the housing of personnel of its Permanent Mission to the EU.

The Supreme Court confirms that State immunity from jurisdiction is a rule of customary international law which only applies to acts performed in the exercise of public authority (‘acta jure imperii’) and not to ‘acta jure gestionis’. In order to determine whether an act is done in the exercise of a State’s public authority, the nature of the act and the capacity in which the State has intervened, and the context in which the act was performed must be taken into account.

The Supreme Court finds that, by relying exclusively on the nature or form of the acts of the Russian Federation’s Permanent Mission to the EU in order to determine that they constituted acta jure gestionis, without examining the quality in which the applicant intervened having regard to the context in which the acts were undertaken, the Court of Appeal infringed customary international law. Consequently, the judgement is annulled.

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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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Western European Union v S. M.

On By In Supreme Court
Belgian Supreme Court, Western European Union v S. M., Nr. S.04.0129.F, 21 December 2009
ECLI:BE:CASS:2009:ARR.20091221.7

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.

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