CONCURRING OPINION OF JUDGES CAFLISCH, COSTA AND VAJIĆ

We agree with the general thrust of the judgment, which we base on the following line of reasoning:

The selection of a State’s diplomatic and consular staff must be dictated by that State’s interests, laws and procedures. It is inconceivable that a State, when appointing those who will represent it abroad – including clerical staff –, would have to submit to the standards set by the laws and procedures of another State, in particular those of their host country. Accordingly, when selecting its foreign service officers, the first State is evidently acting within its public authority, jure imperii , and, in so doing, is covered by sovereign immunity.

This view is reflected in the International Law Commission’s Draft Articles on the Jurisdictional Immunities of States and their Property, mentioned in § 19 of the judgment, Article 11(1) of which states, authoritatively in our view, that

“a Contracting State cannot claim immunity from the jurisdiction of another Contracting State if the proceedings relate to a contract of employment between the [first] State and an individual where the work has to be performed in the territory of the State of the forum”.

The Article adds, however, with equal authority, that the above exception does not apply in situations where “the subject of the proceeding is the recruitment, renewal of employment or reinstatement of the individual” and where the person to be recruited will “perform functions closely related to the exercise of governmental authority”. This exception, according to the Commission’s commentary on Article 11 of its Draft, applies to each and every person to be employed by diplomatic missions or consular posts (Yearbook of the International Law Commission 1991, Vol. II/Part 2, 42-43). In other words, while immunity is complete when it comes to selecting diplomatic and consular personnel, this may no longer be the case, in certain situations, once the individual concerned has been hired .

The immunity just described must apply in the present case: (i) because the present case pertains to the recruitment of diplomatic or consular staff rather than to the application of a contract of employment; (ii) because it does not prevent the application of any provision of the Convention having the value of jus cogens ; (iii) because, for that reason, the immunity rule will stand, unless (iv) it can be shown that the resulting restriction of the right of access to court is disproportionate from the angle of Article 6 § 1 of the Convention.

As the Court points it out in paragraph 36 of its judgment:

“measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access embodied in Article 6 § 1”.

This is so by reason of the overarching importance, for each and every independent State, freely to conduct its foreign policy by using the services of whosoever it sees fit for that task. Important though it is, the right of access to court cannot prevail over that basic imperative.

DISSENTING OPINION OF JUDGE LOUCAIDES

I am unable to agree with the majority that there has been no violation of Article 6 in this case.

The first question that has to be answered is whether or not the applicant’s claim in England involved the determination of a civil right for the purposes of Article 6 § 1. This question was left open by the majority who decided that, even Article 6 was assumed to apply, there had been no violation. However, I have to decide this question because I adopt a different approach to the case.

If the answer to that question is in the negative, the case is inadmissible without it being necessary to proceed further. On the other hand, if the answer is in the affirmative, the next question that I will have to determine is whether there was a valid obstacle blocking access to court in terms of immunity from jurisdiction under the domestic law and/or customary international law. Again, if the answer is in the affirmative I will still have to determine whether such an obstacle is incompatible with Article 6 of the Convention in the circumstances of this case.

With regard to the first question, the position of the parties is briefly as follows:

The Government submit that, in the light of the judgment of this Court in the Pellegrin case, the applicant’s claim in the domestic courts was not of a civil nature because it related to an employment dispute in respect of a public service post, the nature of the duties and responsibilities of which did not allow the applicability of Article 6. Alternatively the Government argue that the nature of the post for which the applicant applied was such that, again on the basis of the Pellegrin test, her claim did not attract the protection of Article 6. According to the Government the posts in question were within the administrative and technical services of the mission and, in spite of the fact that they were not at the level of diplomatic staff, the holders of such posts “[would] often have access to or will work in close proximity to confidential information of considerable importance so that the employing state has a legitimate interest in requiring of them a special ‘bond of trust and loyalty’”. The posts for which the applicant applied must have entailed at least indirect participation in the exercise of public law power.

The applicant maintained that, bearing in mind the nature of the duties of the posts in question, which were strictly of an administrative/secretarial character, her claims were not excluded from the ambit of Article 6 by virtue of the criterion established in the Pellegrin case. The applicant invoked in particular the fact that the holders of such posts do not satisfy the criterion of “direct or indirect participation in the exercise of powers conferred by public law and the carrying out of duties designed to safeguard the general interest of the state or of other public authorities”.

On the assumption that the Pellegrin judgment is pertinent to the facts of this case, I find that the duties involved in the posts to which the applicant was seeking appointment did not fall within the criterion of “exercise of powers” conferred by public law which was established by that case. Moreover, in my opinion, in order to be considered as exercising such duties, it is not enough to have a special bond of trust and loyalty. This in fact is such a general requirement in respect of practically all kinds of employment that it cannot be considered a decisive feature of the exercise of public power.

However, I do not think that the Pellegrin criterion is in any way relevant to the facts of the present case, because this criterion is, as the judgment states, relevant only in order to determine the applicability of Article 6 § 1 to ‘public servants whether established or employed under contract’, in other words, in respect of claims by public servants by virtue of their terms of employment and not in respect of claims by potential public servants. In fact even the respondent Government admits, albeit in a different context, that the applicant was not asserting a cause of action in relation to any act performed during the course of her employment … but in relation to the selection procedures operated by a potential (not actual) employer (para. 7.22 p. 33 - observations of the Government dated 6 May 1998).

But even if I proceed on the assumption that the Pellegrin case applies also to the claims of those seeking employment in the public service and not only to the claims of persons already employed therein (with which I do not agree), it is clear that it cannot extend to claims other than those whose primary aim is the employment or non- employment in a public service post. It is difficult to accept that it extends also to claims where the cause of action is, like the present case, not so much the employment or non-employment element but a complaint for discrimination. This was in fact the only complaint of the applicant for which she sought to have recourse to the courts by virtue of the Sex Discrimination Act 1975, section 2 (a). Such complaint is, in my opinion, within the concept of a “civil right” for the purposes of Article 6 § 1 of the Convention. 

I must now proceed to examine the next question, namely whether there was a valid obstacle blocking access to the court in terms of immunity from jurisdiction under the domestic law and or customary international law.

The applicant did not pursue her claim before the domestic courts because of the invocation by the US Government of immunity from the jurisdiction of the courts by virtue of the State Immunities Act 1978. This Act provides for immunity in respect of proceedings concerning the employment of members of a mission, including members of the administrative and technical staff, precisely the type of positions sought by the applicant. The respondent Government argues that the immunity provided by the British Act reflects customary international law.

However I would like to draw attention to the following points:

1) The immunity invoked under the State Immunity Act expressly refers to “proceedings concerning the employment of the member of a mission”. In the present case it is, I think, reasonable to accept that the proceedings in question did not concern the employment of the applicant but her complaint about sex discrimination.

2) The complaint about discrimination is in the nature of an allegation of a violation of a human right, namely the prohibition of discrimination (see Article 26 of the UN Covenant on Civil and Political Rights).

3) Restrictions to the rights under the Convention such as that safeguarded by Article 6 (access to court) should be interpreted strictly and narrowly.

Even if the immunity invoked is considered as applicable to the facts of the present case, I believe that, in so far as it is a blanket immunity which automatically blocks access to court, without any discretion for the court to examine the competing interests by reference to the facts of each case, including those relating to the claim itself, it is incompatible with the right of access to the court guaranteed by Article 6 of the Convention.

In the case of Osman v. the United Kingdom (judgment of 28 October 1998, Reports 1998 - VIII, §§ 151-154), the Court recognised that a blanket immunity which pursued the legitimate aim of the maintaining the effectiveness of the police service, but which did not allow further enquiry into the existence of competing public interest considerations, constituted a disproportionate restriction on the right of access to court and thus violated Article 6 § 1. Although that decision has since been reviewed on the basis that, on its facts, what was at issue was not in reality a blanket immunity but rather an application of the principles governing substantive rights of action in domestic law ( Z and Others v. the United Kingdom [GC], no. 29392/95, § 100, ECHR 2001), I believe that in cases such as the present, where a true blanket or absolute immunity is at stake, the principles set out in Osman should still apply. As a result, such an immunity should not be allowed to prevent access to court where, in the circumstances of any given case, it is outweighed by other public interest considerations.

I have also taken into account the fact that it has not been established that there is in actual fact a rule of customary international law in support of the State immunity invoked by the respondent Government. The Government itself conceded that there are currently a variety of approaches regarding the immunity in question. But they add that, in such a situation it is necessary to allow States a considerable “margin of appreciation” (later they use the term “margin of tolerance”) in the evaluation of each State as to what is required by international law and that the UK Act falls within the “margin of tolerance” that should be shown in this field. In this connection there was a reference to a number of authorities to show that there is a certain practice supporting the view that “in the case of disputes involving employment contracts at embassies and consulates a policy of de facto absolute immunity is in existence on the basis that the embassy or consulate is the most sovereign instrumentality of a foreign State”. I think that the position of the Government is unconvincing. They invoke a rule of blanket immunity under customary international law while themselves accepting that it is not anymore a “widespread and consistent practice”. Following their own argument as to an international law obligation to adopt the Act in question they had to prove that such obligation existed under customary international law. They failed to do that. They did not prove a rule of immunity supported by any established rule of customary international law. In their own words this question is, in international law, a “highly controversial issue”.

The majority in their judgment state the following:

“The Court observes that, on the material before it (see paragraphs 16-20, 29 and 31 above), there appears to be a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes. However, where the proceedings relate to employment in a foreign mission or embassy, international practice is divided on the question whether State immunity continues to apply and, if it does so apply, whether it covers disputes relating to the contracts of all staff or only more senior members of the mission”.

The Government, in support of the correctness of their own practice regarding the enforcement of the immunity in question, argue that, if such practice were not followed, an investigation into the internal management of the embassy would have been carried out by the court; a course which would have amounted to an interference with the sovereign functions of the United States of America. Cases decided by foreign courts were cited to support the position of the Government. The cases included instances of termination of services of employees of diplomatic missions. However, none of the authorities referred to a potential employee, as in the present case, and to a complaint of discrimination. I would also add that the investigation or examination into the internal management of diplomatic missions does not in itself justify the blocking of access to court in respect of any civil action. After all, it is accepted that the commercial and other specified activities of a State are not subject to immunity and the courts, therefore, can enter into examination of such activities in judicial proceedings against the States concerned, although this entails an intrusion into or examination of the internal administration and organisation structures of diplomatic missions of foreign States. Case-law contrary to the position cited by the Government also exists, and this is conceded by the Government. Furthermore, it is, I think, pertinent to note in this respect that the applicant has in the past issued judicial proceedings against the US Government for her dismissal from the US Embassy in London. In particular she alleged that she had been the victim of persistent sexual harassment by her supervisor and that working relationships had broken down in consequence. The US Government defended the claim and did not at any stage of those proceedings claim State immunity. On 13 May 1996, the competent tribunal upheld the applicant’s complaint.  

In any event, what really matters is the fact that, in the case under consideration, access to court was blocked without any examination of the nature of the claim and therefore without a balancing of competing interests.

In the light of the above, I conclude with the following question: is the blocking of the way to a judicial examination of a claim for damages for sex discrimination through a plea of a blanket State immunity, which is not even supported by a consistent practice of international law, compatible with Article 6? Is it proportionate to the aim pursued? The answer should be, in my opinion, negative, taking into account:

a) the blanket nature of the immunity (see the relevant points in my dissenting opinion in the McElhinney v. Ireland  (judgment of 21 November 2001) case which are applicable in this case mutatis mutandis );

b) the absence of an established international rule supporting the immunity;

c) the fact that the claim of the applicant was in the nature of an allegation of a violation of a human right; and

d) the fact that there was no alternative means of redress in respect of the applicant’s complaint.