Assessing State immunity through the lenses of the European Court of Human Rights: embassy employment disputes as test bench for restrictive immunity

Over the last twenty years, the European Court of Human Rights (ECtHR or the Court) has played a pivotal role in shaping the current understanding of the principle of State immunity in the European continent, alternatively favouring an absolute and restrictive approach. Taking into account the recent jurisprudence of the ECtHR on embassy and consulate employment disputes, this paper will investigate on how State immunity has been interpreted with regard to the alleged violations of Article 6 of the European Convention of Human Rights. When in the Fogarty case the ECtHR addressed the issue for the first time, it concluded that no customary international law existed with regard to State immunity in the field of employment disputes, thus declaring that no violation of Article 6§1 of the Convention had occurred. Since the General Assembly of the United Nations adopted the text of the United Nations Convention on Jurisdictional Immunities of States and Their Property in 2004 (the Convention), the ECtHR’s approach to the topic completely changed. When, in fact, in 2010 and 2011the ECtHR settled two disputes related to the dismissal of embassies’ employers (Cudak and Sabeh El Leil cases), it largely referred to Article 11 of the Convention. In particular, the Court held that State immunity cannot impose a disproportionate restriction on the right of access to a court and that it is a customary rule of international law that employment-related disputes are out of the scope of State immunity. In this respect, although the Convention had so far only been ratified by 22 States and was not in force, the Court claimed that it reflected rules of a customary nature and even States not Parties to the Convention were obliged to comply with Article 11. If the conclusions of the Court in the two mentioned cases can be acceptable in principle, the followed reasoning was certainly debatable. The ECtHR, in fact, did not undergone any extensive examination of the relevant State practice in the field and, when delivering its judgment, apparently misinterpreted the customary character of Article 11. In particular, since the Convention was drafted, the International Law Commission (ILC) was very cautious in defining Article 11 as a customary norm, because the opinion juris of States was not uniform. Moreover, the final version of the text of the Convention did not reflect the ILC draft, so that any reference to the preparatory works, largely recalled by the Court, is of limited relevance. In the two most recent cases brought before the ECtHR in 2016, namely Naku and Radunović, the restricted application of State immunity in the field of embassy and consulate employment disputes has been confirmed. Such interpretation is also domestically accepted by most European countries and even the United Kingdom, traditionally known for taking the view of absolute immunity, through the Benkharbouche case, has shifted towards a restricted approach. Through the lenses of the case law of the ECtHR, this paper will address how the Court is contributing to shape the current interpretation of State immunity and to which extent a restricted immunity in the referred field of employment disputes is consistent with the domestic and international practice of some European countries.