Assessing state jurisdictional immunities through the lenses of the European Court of Human Rights. Embassy employment disputes as test bench for restrictive immunity

Over the last 20 years, the European Court of Human Rights has played a pivotal role in shaping the understanding of State jurisdictional immunities in the European continent. Taking into account its case-law on embassy employment disputes, this chapter will analyse State jurisdictional immunities in light of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. When in Fogarty the European Court of Human Rights first addressed the issue, it concluded that lacking a settled practice, no violation of the right of access to courts had occurred. However, since the adoption of the United Nations Convention on Jurisdictional Immunities of States and Their Property, the approach of the Court has changed. In fact, from Cudak on, the European Court of Human Rights largely relied on Article 11 of the abovementioned convention, as codification of customary international law by which employment-related disputes are out of the scope of State immunity, with some exceptions. While the conclusions of the Court are acceptable in principle, its arguments are debatable to some extent. It did not undergo any examination of the practice in the field and apparently underestimated the approaches taken by domestic courts. This chapter will dwell on the risks to domestically replicate the European Court of Human Rights’ reasoning, which could result in an interpretation of State jurisdictional immunity that is less restrictive than that generally accorded at the national level.