The plaintiff, a former member of the service staff at the embassy of the foreign State in Belgium, was challenging his dismissal. Affirming the appealed judgment, the Brussels Labour Court of Appeals upheld the employer State’s immunity from jurisdiction.
The applicability of the said immunity had been deeply debated between the parties. More specifically, three key elements were disputed: the nature of the functions performed by the staff member; the impact of his nationality – he had indeed the citizenship of the employer State – and residence; and the influence of a clause in the labour contract whereby the parties conferred exclusive jurisdiction on the courts of the employer State. The Brussels Labour Court of Appeals eventually focused on the nationality and residence factor alone.
With a view to determining the applicable rules of customary international law governing sovereign immunity in the case at hand, the Court relied upon the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, which is not in force yet but is increasingly regarded by domestic courts as reflecting rules of customary international law in most of its provisions. More specifically, the Court referred to Article 11(2)(e) of the Convention, which maintains the immunity of the employer State where the (former) employee is a national of that State. The Court held that this part of Article 11(2)(e) reflects an existing rule of customary international law.
On the other hand, 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: in this respect, the Court referred to the preparatory work of the Convention, showing that the said limitation was introduced without being founded on actual State practice. 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.
It is striking that the foreign State’s immunity from jurisdiction was recognized in this case. In employment disputes involving staff members of diplomatic missions, Belgian labour courts have indeed been rejecting State immunity in virtually all cases for decades, with – to our knowledge – only a very few exceptions that pertain to consular officers.
The judgment should be welcome as the Court took pain to approach the text of the UN Convention with nuance, rather than taking for granted that all of its provisions necessarily reflect existing rules of customary international law. It is hoped that other Belgian courts will adopt a similar methodology in future cases.
