Tag: Vienna Convention or Consular Relations

Baghouri et al. v Belgium

On By In Court of Appeal
Brussels Court of Appeal, Baghouri et al. v Kingdom of Belgium, Nr. 2020/******/C, 21 October 2020

The case concerns an appeal against two Orders of the Tribunal of First Instance of 11 December 2019 and 25 February 2020, ordering the Belgian State to provide consular assistance to several children held at the Al-Hol refugee/detention camp in Syria, as well as to provide necessary identity and travel documents enabling them to travel to Belgium.

The appellants seek reform of the contested Order inasmuch as it states that they are not eligible for consular assistance since they cannot invoke Article 9 of the Convention of the Rights of the Child (CRC) in order not to be separated from their children against their will. They claim that the Order is not in the best interests of the children and violates the CRC, the Charter of Fundamental Rights of the EU and Article 22bis of the Constitution. However, the Court of Appeal finds this claim to be unfounded as the parents are not eligible for consular assistance pursuant to Article 83 Consular Code. This is so because they travelled to a region undergoing armed conflict despite a negative travel advice from the Belgian authorities.

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Baghouri et al. v Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2020/******/C, 25 February 2020

The case concerns an appeal by the Belgian government against an Order of the Tribunal of First Instance of 11 December 2019, ordering the Belgian State to provide consular assistance to several children held at the Al-Hol refugee/detention camp in Syria, as well as to provide necessary identity and travel documents enabling them to travel to Belgium.

The Court recognizes the temporary impossibility for the Belgian State to fully execute the Order within the allotted time. This finding is based on the fact that the Belgian State repeatedly requested the Kurdish authorities for the Belgian State to be allowed to provide consular assistance to the children and to organize their repatriation without their parents. The Kurdish authorities refused this request several times because they could not allow the separation of the children from their parents under Kurdish law. In addition, the security threat was such as to jeopardize the security of the consular mission and the children during their repatriation. For this reason, the Court grants the Belgian State an extension of time to implement the decision.

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Baghouri et al. v Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2019/*/C, 11 December 2019

Several parents with Belgian citizenship staying at the Al-Hol refugee/detention camp in Syria claim that the Belgian State should be held liable to undertake all feasible measures to ensure the repatriation of their minor children and themselves.

The Tribunal of First Instance confirms that, since the entry into force of the Law of 9 May 2018, consular assistance is no longer a mere privilege, but a subjective right on the part of individuals covered by the Belgian Consular Code. This right, however, is not deemed to be absolute. Article 83 of the Consular Code indeed imposes several grounds for exclusion, including with respect to individuals who knowingly travel to a region where an armed conflict is ongoing. This manifestly applies to the plaintiffs, but not to their minor children, who should not bear the consequences of their parents’ acts, and who remain fully entitled to consular assistance.

In addition, the Tribunal rules that, given the severe neglect of their children by taking them into life-threatening war zone, the plaintiffs cannot invoke the children’s interest in not being separated from their parents against their will under Article 9 of the Convention of the Rights (CRC) of the Child in order to claim any right to assistance for themselves. The Tribunal confirms that neither the plaintiffs, nor their children, come within the jurisdiction of the Belgian State in the sense of the European Convention on Human Rights.

Based on the accumulation of international obligations assumed by the Belgian State (e.g. under the CRC and the Convention on Statelessness), and given the specific factual circumstances of the case, the Tribunal finds that the Belgian State is required to provide the children with the necessary administrative, identity and/or travel documents, to enable them to travel under supervision from Syria to Belgium.

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Kingdom of Belgium v A.A.

On By In Supreme Court
Supreme Court, Kingdom of Belgium v A.A., Nr. C.15.0269.F, 29 September 2017

The Belgian Supreme Court overturns a verdict by the Brussels Court of Appeal of 9 September 2014. The Court of Appeal held that, where a national is detained abroad and is the victim of attacks against his or her physical integrity and of violations of jus cogens, Articles 5 and 36 of the Vienna Convention on Consular Relations (VCCR) impose an obligation on the State to provide consular assistance.

The Supreme Court contradicted this interpretation. According to the Supreme Court, the relevant provisions of the VCCR only create rights that can be invoked by the sending State vis-à-vis the host State, but do not impose an obligation to extend consular assistance to the State’s nationals abroad, and do not confer any right that can be claimed by those nationals. While the fact that a national abroad suffers treatment that contravenes jus cogens obliges the State to employ all measures it deems appropriate in order to put an end to this situation, it does not as such create an obligation for the State to provide consular assistance to the person concerned.

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R.B. v Kingdom of Morocco

On By In Labour Court of Appeal
Antwerp Labour Court of Appeal, R.B. v Kingdom of Morocco, Nr. 2015/AA/536, 17 March 2017

R.B., a person of Belgian-Moroccan nationality, who used to work for the Moroccan Consulate-General in Belgium, was seeking the payment of severance pay and of overdue salary after his mandate was terminated.

Notwithstanding plaintiff’s suggestion that he was merely engaged in simple administrative tasks, the Antwerp Labour Court held that the mandate of the plaintiff related to ‘acta jure imperii’, in particular as his tasks could be qualified as consular functions in the sense of Article 5(e) of the Vienna Convention on Consular Relations of 1963, for which the state of Morocco was entitled to immunity from jurisdiction. Moreover, the plaintiff could not prove the existence of an employment contract instead of a statutory employment. For the sake of completeness, the Court tested Morocco’s state immunity against the 2004 UN Convention on Jurisdictional Immunities of States and their Property, which it considered to reflect customary international law, and upheld the immunity of Morocco under several of the exceptions contained in Article 11(2) of that treaty relating to employment contracts.

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