Diplomatic Community-May 2017
May 15, 2017
Kelley Drye’s Diplomatic Community is our quarterly newsletter that provides updates on public international law developments with a focus on diplomatic legal issues, international organizations, the law of immunities and international civil service law. 
Belgian Constitutional Court Rules on Recent Legislation Protecting Property of Foreign States and International Organizations

By Frédéric Dopagne, and Bert Theeuwes 

In its
27 April 2017 judgment (No. 48/2017), the Court largely confirms the validity of the Act of 23 August 2015 whereby the immunity from execution of foreign States and international organizations was strengthened in Belgian legislation. The Court only annuls, for non-diplomatic property, the requirement that a waiver of the immunity must be ‘specific’.

Dutch Supreme Court Upholds Immunity of European Patent Organization in Trade Union Dispute

By Frédéric Dopagne, and Bert Theeuwes 

In a
judgment delivered on 20 January 2017 (original in Dutch here), the Hoge Raad held that the EPO can invoke its immunity from jurisdiction in proceedings instituted by trade unions for alleged breaches of employees’ fundamental rights (right to strike, etc.). It ruled that the staff representatives do have access to alternative remedies to protect the right to collective action and the right of collective negotiation, hence the immunity is not disproportionate in light of the individuals’ right of access to a court.
U.S. Extends Foreign Sovereign Immunity for Art Works

By Frédéric Dopagne, Saskia Lemiere and Bert Theeuwes 

On 16 December 2016, a new amendment to the U.S. Foreign Sovereign Immunities Act (FSIA) was signed into law, extending the immunity of foreign States which send art works to the U.S. for temporary exhibit. While the change was welcomed by the U.S. art community, two important exceptions to the extension of immunity might result in new uncertainties.

New French Court Decision on Liability of Host State for Recognizing Immunity to International Organizations 

By Frédéric Dopagne and Bert Theeuwes 

By a
judgment delivered on 7 February 2017, the Paris Administrative Court of Appeals confirmed that the French State must compensate an individual who could not enforce a judgment against the United Nations High Commissionner for Refugees (UNHCR) due to the immunity from execution enjoyed by the UNHCR on French territory. The Conseil d’État – the French Administrative Supreme Court – had previously taken a different stance in the case at hand.

PUBLICATION: Belgian State’s Interventions in Domestic Courts to Defend International Law Immunities

Special Counsel Frédéric Dopagne’s article ‘L’État belge devant ses tribunaux en défense des immunités du droit international’ is featured in the recently published edited book Les visages de l’État. Liber amicorum Yves Lejeune (Bruylant Publishers, Brussels, 2017, pp. 351-361). The article analyzes the increasing intervention practice of the Belgian federal government in disputes before Belgian courts involving immunity issues under international law. While such interventions in support of immunities are well-known and specifically regulated in a number of legal systems, they are more unusual and raise new questions in continental law systems such as Belgium.