Tag: Treaty Law

D. R. vs Republic of Mauritius

On By In Supreme Court
Supreme Court, D. R. vs Republic of Mauritius, Nr. C.22.0012.F, 6 April 2023

The case concerns a French-Mauritian dual national who initiated arbitral proceedings against Mauritius under the 1973 France–Mauritius Bilateral Investment Treaty (BIT), alleging several treaty breaches. In 2018, however, the arbitral tribunal, having its seat in Brussels, found it lacked jurisdiction on the grounds that dual nationals of the two State parties fall outside the BIT’s personal scope of application, even though the treaty does not expressly address this issue. The investor sought annulment of the award before the Brussels Tribunal of First Instance, yet without success.

Contrary to the claimant, the Supreme Court held that the contested judgment had relied on the 2010 BIT between France and Mauritius – which excludes dual nationals from its scope but had not yet entered into force – not to determine the scope of the 1973 Treaty, but rather as an element revealing the common intention of the States Parties, at least as of 2010.

The Supreme Court further accepted that the contested judgment could rightly consider the customary norm excluding diplomatic protection for dual nationals as a “relevant rule of international law applicable in the relations between the parties” in the sense of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) for purposes of interpreting the 1973 BIT. By contrast, the European Convention on Human Rights (ECHR) and its First Additional Protocol did not qualify as such, as Mauritius was not bound by these instruments.

With respect to the reliance on national legislation as a “supplementary means of interpretation” under Article 32 VCLT, the Supreme Court rejected that supplementary means can be used only when the interpretation pursuant to Article 31 VCLT leaves the matter ambiguous or results in an outcome that is manifestly absurd (as they can be used to confirm an interpretation pursuant to Article 31 VCLT). On the other hand, it held that the reference to “preparatory work” in Article 32 is merely illustrative and that other supplementary means of interpretation may also be considered.

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Touax v Touax Rom

On By In Supreme Court
Supreme Court, Touax v Touax Rom, Nr. C.13.0528.F, 9 February 2017

During the 1999 Kosovo war, two shipping companies operating boats on the Danube saw their commercial activities come to a halt because of the bombing of several bridges over the river by NATO. They turned to the Kingdom of Belgium to receive compensation for their economic losses, relying on article 1382 of the civil code. According to the claimants, Belgium’s participation in NATO’s military operation constituted a breach of the prohibition on the use of force enshrined in article 2(4) of the UN Charter and accordingly qualified as a tort.

In 2013, the Brussels Court of Appeal rejected the appeal, holding that a private person cannot invoke a violation of Article 2(4) UN Charter because the provision lacks direct effect.

The judgment was later upheld by the Supreme Court. The Supreme Court found that the claimants did not invoke any fact – other than the alleged breach of Article 2(4) UN Charter – of such nature as to constitute an error of conduct. It also dismissed the argument that the existence of a tort deduced from a provision of an international treaty does not require that this provision has direct effect in the internal legal order. Lastly, the Supreme Court did away with the alleged violation of the jus in bello resulting from Belgium’s participation in the bombing of non-military targets: as the bridges over the Danube constituted a military objective, their destruction could not constitute a tort.

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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.

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