In what appears to be its first decision on the immunity from jurisdiction enjoyed by foreign States in employment disputes involving diplomatic missions, the Belgian Court of Cassation dismissed the immunity invoked by the sending State – the United States. The judgment, dated 4 March 2019, is available here in original Dutch language.
The plaintiff was claiming compensation for alleged unlawful dismissal. Of Belgian citizenship, he had been hired to perform, within the embassy in Brussels, a number of functions including: providing advice to the diplomatic staff on privileges and immunities in tax matters; establishing and maintaining contacts with certain officials within Belgian ministries; preparing forms relating to tax exemptions for purchases in EU and non-EU countries; monitoring the attribution of car plates to the staff of the embassy. His last post at the embassy was “Chief Customs and Dispatching”.
The Court of Cassation agreed with the Brussels Labour Court of Appeals which had found that the employee, while being in charge of the preparation of documents, did not have the authority to sign these documents on behalf of the sending State. Performing functions in the exercise of governmental authority requires, according to the Court, that the staff member be entitled to commit the State. As he lacked such a power, the plaintiff was not performing functions in the exercise of governmental authority, hence the United States could not invoke its immunity from jurisdiction.
This ruling raises four main questions.
- First, with a view to determining the scope of existing rules on sovereign immunity, the Court of Cassation relied on customary international law “as also stated in” Article 11(1) and Article 11(2)(a) of the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (UNCSI). In essence, Article 11(1) provides that, in proceedings which relate to a contract of employment concluded with an individual, foreign States cannot, in principle, invoke immunity from jurisdiction; under Article 11(2)(a), the immunity is nonetheless applicable “if the employee has been recruited to perform particular functions in the exercise of governmental authority.”
However, the Court did not further elaborate on its characterizing those provisions of the UNCSI as “stating”’ existing rules of customary international law. Some clarification would have been welcomed in this respect, all the more so as the UNCSI is not in force, has to date only been signed (not ratified) by Belgium, and has not even been signed by the United States.
- Second, it is bewildering that the judgment was, in fact, entirely premised on the finding that the staff member did not have the authority to sign documents and to make commitments on behalf of the sending State, and therefore was allegedly not “recruited to perform particular functions in the exercise of governmental authority.” It is doubtful that the exercise of such governmental authority implies or requires the power to commit the State in all cases. For example, it is not established that members of the diplomatic staff themselves are entitled to commit the sending State (without the approval of the head of the mission or another governmental organ), but it is undisputed that they are still effectively “recruited to perform particular functions in the exercise of governmental authority.” At any rate, the power to sign documents and to make commitments on behalf of the foreign State cannot be the only, decisive criterion.
- Third, as the subject-matter of the case was a dismissal, the Court of Cassation should all the more have expanded on the reasons why the immunity does not apply. Under Article 11(2)(d) of the UNCSI, indeed, the immunity is considered duly applicable in dismissal proceedings. Admittedly only where the head of State, the head of Government or the Minister for Foreign Affairs of the employer State has determined that the proceedings “would interfere with the security interests of that State.” This additional condition in Article 11(2)(d), nevertheless, can hardly be regarded as reflecting an existing rule of customary international law.
- Fourth, and surprisingly enough, the Court failed to make any link to its previous case law on State immunity from jurisdiction; especially its landmark 2015 judgment in which it held that, in order to determine whether acts have been performed by a State in the exercise of governmental authority (jure imperii) and are accordingly covered by immunity, the “context” of the act at stake must be taken into account. That 2015 judgment was not related to an embassy staff dispute. However, the ruling it contains has a broader scope and can certainly be considered applicable in embassy staff disputes as well.
In the case at hand, it might have been argued that the specific “context” of the dismissal is an employment relationship within a diplomatic mission, between a sovereign State and a staff member responsible for a number of tasks closely associated with the very functioning of that diplomatic mission; and that such a context is, typically, of a sovereign nature, thus entailing that the immunity is applicable. At the very least, one would have expected some further explanation fromthe Court of Cassation on this plane.