CONCURRING OPINION OF JUDGE PELLONPÄÄ JOINED BY JUDGE Sir Nicolas BRATZA

I fully agree with the majority’s reasoning, as well as with the “realistic considerations” put forward by Judge Zupančič in his concurring opinion. I would like to add the following further considerations.

There is much wisdom in the speech of Lord Justice Stuart-Smith who, on behalf of the Court of Appeal, called for a “moment’s reflection” to consider the practical consequences which would have followed from the acceptance of the applicant’s argument. Lord Justice Stuart-Smith continued (paragraph 18 of the judgment ):

“... The courts in the United Kingdom are open to all who seek their help, whether they are British citizens or not. A vast number of people come to this country each year seeking refuge and asylum, and many of these allege that they have been tortured in the country whence they came. Some of these claims are no doubt justified, others are more doubtful. Those who are presently charged with the responsibility for deciding whether applicants are genuine refugees have a difficult enough task, but at least they know much of the background and surrounding circumstances against which the claim is made. The court would be in no such position. The foreign States would be unlikely to submit to the jurisdiction of the United Kingdom court, and in its absence the court would have no means of testing the claim or making a just determination. ...”

Similar consequences could have ensued in other jurisdictions. The somewhat paradoxical result, had the minority’s view prevailed, could have been that precisely those States which so far have been most liberal in accepting refugees and asylum-seekers, would have had imposed upon them the additional burden of guaranteeing access to a court for the determination of perhaps hundreds of refugees’ civil claims for compensation for alleged torture. Even if the finding of a violation of Article 6 in this case had not had a “chilling effect” on the readiness of the Contracting States to accept refugees – a consequence which I would not totally exclude – the question of the effectiveness of the access in the circumstances outlined by Lord Justice Stuart-Smith would inevitably have arisen.

It is established case-law that mere access to a court without the possibility of having judgments executed is not sufficient under Article 6. In Hornsby v. Greece ( judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II) the Court stated that “the right to institute proceedings before courts in civil matters” is only one aspect of the “right to a court” (pp. 510-11, § 40). That right would, however,

“... be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be

likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention ... Execution of a judgment given by any court must therefore be regarded as an integral part of the ‘trial’ for the purposes of Article 6 ...” (ibid.).

The acceptance of the applicant’s argument concerning access to a court would thus have required a possibility of having judgments – probably often default judgments – delivered in torture cases executed against respondent States. This in turn would raise the question whether the traditionally strong immunity of public property from execution would also have had to be regarded as incompatible with Article 6. It would seem that this indeed would have been the inevitable consequence of the acceptance of the minority’s line. If immunity from jurisdiction were to be regarded as incompatible with Article 6 because of the jus cogens nature of the prohibition of torture, which prevails over all other international obligations not having that same hierarchical status, it presumably would also have to prevail over rules concerning immunity from execution. Consequently, the Contracting States would have had to allow attachment and execution against public property of respondent States if the effectiveness of access to a court could not otherwise be guaranteed.

The acceptance of the applicant’s argument indeed would have opened the door to much more far-reaching consequences than did the amendment to the United States Foreign Sovereign Immunities Act, which made it possible for United States nationals to raise damage claims based, inter alia , on torture against specifically designated States (see paragraph 24 of the judgment ). As appears from the plaintiff’s futile efforts of execution in Flatow v. the Islamic Republic of Iran [ Flatow v. Islamic Republic of Iran (999 F. Supp . 1 (D.D.C. 1998)); Flatow v. the Islamic Republic of Iran and Others (76 F. Supp . 2d 16, 18 (D.D.C. 1999)). See also 93 American Journal of International Law (AJIL)181 (1999)], this narrowly limited statutory amendment did not affect the immunity of a foreign State’s public property from attachment and execution, causing the District Court Judge Royce C. Lamberth to characterise the plaintiff’s original judgment against Iran as an epitome of the phrase “ Pyrrhic victory” [76 F. Supp . 2d, Memorandum Opinion, p. 27].

Flatow led to a further amendment of the Foreign Sovereign Immunities Act with the purpose of allowing United States victims of terrorism to attach and execute judgments against a foreign State’s diplomatic or consular properties. The amendment, however, included a provision allowing the United States President to suspend its application [The amendment is contained in paragraph 117 of the Treasury and General Government Appropriations Act of 1999, as contained in the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, 112 Stat . 2681 (1998). See 93 AJIL at p. 185]. On 21 October 1998 President Clinton exercised this power, reasoning as follows:

“If this section [of the Act] were to result in attachment and execution against foreign embassy properties, it would encroach on my authority under the Constitution to ‘receive Ambassadors and other public Ministers’. Moreover, if applied to foreign diplomatic or consular property, section 177 would place the United States in breach of its international treaty obligations. It would put at risk the protection we enjoy at every embassy and consulate throughout the world by eroding the principle that diplomatic property must be protected regardless of bilateral relations. Absent my authority to waive section 177’s attachment provision, it would also effectively eliminate use of blocked assets of terrorist States in the national security interests of the United States, including denying an important source of leverage. In addition, section 177 could seriously affect our ability to enter into global claims settlements that are fair to all United States claimants and could result in United States taxpayer liability in the event of a contrary claims tribunal judgment . To the extent possible, I shall construe section 177 in a manner consistent with my constitutional authority and with United States international legal obligations, and for the above reasons, I have exercised the waiver authority in the national security interest of the United States.” [Statement on Signing the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, 34 Weekly Comp. Pres. Doc . 2108, 2133 (October 23, 1998), as quoted in 93 AJIL, pp. 185-86]

A holding that immunity is incompatible with Article 6 of the Convention because of the jus cogens nature of the prohibition of torture would have made it difficult to take into account any considerations of this kind. In other words, in order not to contradict itself the Court would have been forced to hold that the prohibition of torture must also prevail over immunity of a foreign State’s public property, such as bank accounts intended for public purposes, real estate used for a foreign State’s cultural institutes and other establishments abroad (including even, it would appear, embassy buildings), etc., since it has not been suggested that immunity of such public property from execution belongs to the corps of jus cogens . Although giving absolute priority to the prohibition of torture may at first sight seem very “progressive”, a more careful consideration tends to confirm that such a step would also run the risk of proving a sort of “ Pyrrhic victory”. International cooperation , including cooperation with a view to eradicating the vice of torture, presupposes the continuing existence of certain elements of a basic framework for the conduct of international relations. Principles concerning State immunity belong to that regulatory framework, and I believe it is more conducive to orderly international cooperation to leave this framework intact than to follow another course.

In my view this case leaves us with at least two important lessons. First, although consequences should not alone determine the interpretation of a given rule, one should never totally lose sight of the consequences of a particular interpretation one is about to adopt. Secondly, when having to touch upon central questions of general international law, this Court should be very cautious before taking upon itself the role of a forerunner [That previous international practice does not support the conclusion that the erga omnes or jus cogens nature of the prohibition of torture has the consequence of obliging States to make their civil courts available for the victims of such violations is convincingly demonstrated by a study conducted by a group of distinguished international lawyers under the auspices of the British Branch of the International Law Association – see [2001] E.H.R.L.R. 129, particularly pp. 138 and 151]. I started this opinion by quoting Lord Justice Stuart-Smith. I end it by quoting another eminent jurist, Sir Robert Jennings, who some years ago expressed concern about “the tendency of particular tribunals to regard themselves as different, as separate little empires which must as far as possible be augmented” [Sir Robert Jennings, “The Proliferation of Adjudicatory Bodies: Dangers and Possible Answers” in Implications of the Proliferation of International Adjudicatory Bodies for Dispute Resolution, Asil Bulletin: Educational Resources on International Law, Number 9, November 1995, 2 at p. 6]. I believe that in this case the Court has avoided the kind of development of which Sir Robert warned.