In a judgment delivered on 5 February 2019, the European Court of Human Rights found that Switzerland did not breach Article 6 of the European Convention on Human Rights (ECHR) when its domestic courts upheld the immunity from jurisdiction of Burundi in employment related proceedings involving the permanent mission of Burundi to the United Nations in Geneva. For the European Court, the immunity recognized by Swiss courts did reflect existing rules of customary international law on State immunity.
The claimant was hired by the government of Burundi to work as a secretary at Burundi’s permanent mission to the Office of the United Nations in Geneva. In fact, she was frequently called upon to perform additional functions (accounting, consular matters such as renewal of passports and issuance of visas, current businesses during absences of the ambassador, etc.). She was a national of Burundi, and was living in France both when she was recruited and when she filed her lawsuit before the Swiss courts.
The European Court applied its settled case-law concerning the conflict between State immunity from jurisdiction and the individual’s right of access to a court guaranteed under Article 6 ECHR: the immunity is compatible with Article 6 as long as it reflects “generally recognized principles of international law” (i.e. rules of customary international law) on State immunity.
In this case, the Court referred to Article 11(2)(e) of the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (UNCSI, a Convention not yet in force but ratified by Switzerland) as an indication of those “generally recognized principles of international law”. Under Article 11(2)(e), a foreign State can invoke immunity from jurisdiction in proceedings which relate to a contract of employment concluded with an individual, “if the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum.”
The Court took note that the plaintiff was indeed a national of Burundi when she brought her action before the Swiss courts, and that, at that same moment, she did not have permanent residence in Switzerland (she moved to Switzerland but only after she instituted the proceeding). Therefore, according to the European Court, the conditions of Article 11(2)(e) of the UNCSI were met and the Swiss courts effectively had to uphold Burundi’s claim of immunity in accordance with “generally recognized principles of international law”.
Against that backdrop, the Court did not find it necessary to analyse further the actual functions exercised by the claimant, and to determine whether Article 11(2)(a) of the UNCSI was also applicable in the case at hand. As developed in this edition of Diplomatic Community in relation to a recent ruling by the Belgian Supreme Court, Article 11(2)(a) preserves the application of the immunity where “the employee has been recruited to perform particular functions in the exercise of governmental authority.”