DISSENTING OPINION OF JUDGES CAFLISCH, CABRAL BARRETO AND VAJIĆ

To our regret, we are unable to concur with either the Court’s decision or its reasoning. We think that, in the instant case, the Republic of Ireland has violated the right of access to courts enshrined in Article 6 § 1 of the Convention. The violation consisted in the acceptance, by the Irish courts, of the plea of immunity raised by the United Kingdom. Our conclusion is based on the following reasoning.

The principle of State immunity has long ceased to be a blanket rule exempting States from the jurisdiction of courts of law. This is true, in particular, in the context of international relations, i.e. regarding the position of foreign States before local courts. While the evolution leading to a more sophisticated set of rules is too long and complex to be retraced here, it may be said that the edifice of absolute immunity of jurisdiction (and even of execution) began to crumble, in the first quarter of the 20 th century, with the advent of State trading: Why should States, when engaging in commercial activities like individuals, be treated more favourably than the latter and, thus, enjoy a competitive advantage? By the same token, why should a foreign country locally hiring employees who will not engage directly in diplomatic or consular activities on behalf of that country be exempted from the operation of local law? And why should a State be so exempted when appearing, like a private person, in the guise of an heir or legatee, or as the owner of industrial or intellectual property? Why, finally – and this is the issue arising in the present case –, should a State not be accountable, before the courts of another State, for injury and damage inflicted by its agents on individuals or their property on the territory of that other State, just as it would be if the tort had been caused, not by an agent of that other State, but by an individual?

The above exceptions to absolute immunity have gradually come to be recognised by national legislators and courts, initially in continental Western Europe and, much later, in common law countries. For obvious reasons, they have been slower to emerge in the former socialist bloc, long dominated by State trading and the absence of competition.

The exceptions in question have also found their way into the international law on State immunity, especially the torts exception. That this is so is shown, for example, by the State Immunity Act 1978 of the United Kingdom – the very State which claimed sovereign immunity in the instant case –, Section 5 of which provides that a foreign State is

“not immune as respects proceedings in respect of (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom”.

This provision is echoed in Section 1605(a) (5) of the United States Foreign Sovereign Immunities Act (1976) and in Section 13 of Australia’s Foreign States Immunities Act ( International Legal Materials , Vol. 25, 1986, p. 715). The many countries where State immunity is an issue left to be determined by the courts – these are, paradoxically, the courts of civil law countries – follow the same rule, witness the numerous decisions listed in the International Law Commission’s (ILC) commentary relating to Article 12 of its Draft Articles on Jurisdictional Immunities of States and Their Property (Report of the ILC on the Work of its 43 rd Session, 29 April-19 July 1991, United Nations General Assembly, 46 th Session, Supplement N° 10, p. 11, at pp. 103 n. 163 and 105 n. 165), as well as in the Fifth Report of the Commission’s Special Rapporteur (Yearbook of the ILC 1983, Vol. II, Part One, paragraphs 76-99).

The same solution has been retained in treaty law. Article 11 of the European Convention on State Immunity of 16 May 1972 (European Treaties, N° 74) provides:

“A contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.”

It is true that, as of the time of writing, the 1972 Convention was binding only on eight out of the 43 members of the Council of Europe. This does not, however, prevent some of its provisions – Article 11 for one – from reflecting generally recognised rules, as is shown by the international practice referred to in the present opinion. It is also true that Article 31 of the same Convention stipulates an exception to the torts exception cited above by stressing that

“[n] othing in this Convention shall affect any immunities or privileges enjoyed by a Contracting State in respect of anything done or omitted to be done by, or in relation to, its armed forces when on the territory of another Contracting State”,

but, as is and will become apparent from the practice referred to in the present opinion, this exception is specific to the Convention and has no general validity.

Finally, various attempts at codifying the international law of State immunity should be examined. A first item to be considered under this heading is Article III(e) of a resolution adopted by the Institute of International Law ( Institut de droit international ) on 2 September 1991 and entitled: “Contemporary Problems Concerning the Immunity of States in Relation to Questions of Jurisdiction and Enforcement” ( Annuaire de l’Institut de droit international , Vol. 64-II, 1992, p. 390, at p. 393). That provision runs as follows:

“The organs of the forum State are competent in respect of proceedings concerning the death of, or personal injury to, a person, or loss of or damage to tangible property, which are attributable to activities of a foreign State and its agents within the national jurisdiction of the forum State.”

Another text pointing in the same direction is the International Law Association’s Revised Draft Articles for a Convention on State Immunity of August 1994 (ILA, Report of its Sixty-Sixth Conference , Buenos Aires 1994, p. 488). According to Article III(F) of that Draft,

“[w]here the cause of action relates to: 1. Death or personal injury; or 2. Damage to or loss of property, and the act or omission which caused the death, injury or damage either occurred wholly or partly in the forum State or if that act or omission had a direct effect in the forum State”,

the foreign State shall not be immune. This extends the exception to State immunity beyond acts or omissions which  occurred wholly or partly in the forum State. It also comprises acts or omissions which had a direct effect in the forum State, i.e. it opens up the exception to so-called transborder tort actions. If in the case of McElhinney it may be argued that if the tort had its origin on the territory of the United Kingdom (Northern Ireland), it nevertheless had a direct effect in the forum State, Ireland, and is therefore covered in every respect by what Article III (F) considers to be the rule of State immunity.

The ILC, a subsidiary organ of the United Nations General Assembly entrusted with the progressive development of international law and its codification, and made up of eminent experts in that field, has, in turn, prepared a set of “Draft Articles on Jurisdictional Immunities of States and Their Property”. As is shown by the work of the Commission’s Special Rapporteurs , this Draft, which has been mentioned already, largely rests on the prevailing State and international practice. This is true, in particular, of its Article 12, entitled “Personal Injuries and Damage to Property”, which prescribes:

“Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory or that other State and if the author of the act or omission was present in that territory at the time of the act or omission.”

The ILC’s commentary on this provision (Report of the ILC…, op. Cit. , pp. 102-108) reveals: ( i ) that the exception it makes to the general principle of immunity, while mainly destined to encompass road and other accidents, i.e. insurable risks (judgment, § 19), it “is wide enough to cover also intentional physical harm such as assault and battery, malicious damage to property, arson or even homicide, including political assassination “ ( ibid ., p. 103); (ii) that that exception only obtains where the forum State is the State on whose territory the act or omission complained of has taken place, because, if access to its courts were denied, the injured person would be without recourse to justice ( ibid. , p. 103); (iii) that the author of the act or omission must have been present in that State’s territory at the relevant time, this condition being meant to rule out transboundary injuries which are more properly classified as State-to-State disputes ( ibid. , p. 104); and (iv) that no distinction shall be drawn between the torts resulting from the exercise of the jus imperii and those flowing from acts or omissions falling into the category of jus gestionis ( ibid. , p. 105). Finally, it may be said that the Commission’s commentary is firmly rooted in practice; its language nowhere suggests that the Commission intended to propose Article 12 as lex ferenda , that is, as a development rather than a codification of international law.

Subsequently, the Commission’s Draft Articles ran into stormy weather, when they were examined by the General Assembly’s Sixth Committee and a working party convened by the latter in 1992 and 1993. Criticisms were levelled at various provisions of the Draft, but not Article 12, which gave rise to little or no discussion.

Finally, as a result of these criticisms, the Draft Articles were sent back for possible “repairs” to the ILC which, in turn, established a working group to deal with the problems inherent in the Draft (see Report of the ILC 1999, Chapter VII). Nowhere in the Working Group’s Report of May 1999 is there any discussion of Article 12; nor is the latter mentioned in an appendix to the Report dealing with recent developments in the field of State immunity. This must mean that there were no significant challenges against the approach followed by the ILC.

The foregoing considerations lead to the conclusion that Article 12 reflects the law as it is at present and that it squarely covers the case at hand. However, even if one were not prepared to admit as much, that Article is, at the very least, the expression of a remarkable convergence of tendencies in contemporary international law. This convergence is sufficiently powerful to suggest, at any rate, that at present there is no international duty , on the part of States, to grant immunity to other States in matters of torts caused by the latter’s agents.

There was, consequently, no conflict between the international law on sovereign immunity and the right of access to domestic courts guaranteed by Article 6 § 1 of the Convention. It follows that the Court, in our view, should have held Article 6 § 1 to apply to the present case. It could then have found that the Republic of Ireland should have allowed the applicant to have access to its courts. By not doing so, it disproportionately restricted the applicant’s rights under the Convention.

dissenting opinion of judge loucaides

I am unable to agree with the Court’s decision. I agree with the dissenting opinion of Judges Caflisch , Cabral Barreto and Vajić to the effect that, in this case, for the reasons set out in that opinion, there was no conflict between the international law on sovereign immunity and the right of access to domestic courts guaranteed by Article 6 § 1 of the Convention and therefore no question of refusing access to court on the ground of such immunity could arise in this case. However I would like to add an additional reason for finding a violation of Article 6 § 1 of the Convention in this case.

As in the cases of Al- Adsani and Fogarty (judgments of 21 November 2001), I would like to repeat here that I believe that a blanket immunity which is applied by a court in order to block completely the judicial determination of a civil right without balancing the competing interests, namely those connected with the particular immunity and those relating to the nature of the specific claim which is the subject matter of the proceedings, amounts to a disproportionate restriction on the right of access to court. In this respect I would like to underline the following points.

In present democratic society an absolute immunity from judicial proceedings appears to be an anachronistic doctrine incompatible with the demands of justice and the rule of law.

The international law immunities originated at a time when individual rights were practically non-existent and when States needed greater protection from possible harassment through abusive judicial proceedings. The doctrine of State immunity has in modern times been subjected to an increasing number of restrictions, the trend being to reduce its application in view of developments in the field of human rights which strengthen the position of the individual. Moreover, nowadays judicial institutions, at least in the countries where the Convention is applicable, are bound to secure the safeguards of fairness and impartiality provided therein and protect States accordingly.

In a case like the one before the Court, the lex specialis is the European Convention of Human Rights. General principles of international law are not embodied in the Convention except insofar as reference is expressly made to them by the Convention (see, for example, Articles 15, 35 § 1 and 53 of the Convention and Article 1 of Protocol No. 1). Therefore, one should be reluctant to accept restrictions on Convention rights derived from principles of international law such as those establishing immunities which are not even part of the jus cogens norms.

It is correct that Article 6 may be subject to inherent limitations, but these limitations should not affect the core of the right. Procedural conditions such as time-limits, the need for leave to appeal etc. do not affect the substance of the right. But completely preventing somebody from having his case determined by a court, without any fault on his part and

regardless of the nature of the case, contravenes, in my opinion, Article 6 § 1 of the Convention.

Finally I would like to place on record my reaction to the fact that the majority in finding no violation of Article 6 § 1 in this case has taken into account "that in the circumstances of the present case it would have been open to the applicant to bring an action against the United Kingdom Secretary of State for Defence in Northern Ireland".

I believe that when a complaint is made for a breach of the Convention, the complaint should be examined by the Court by reference only to the legal system of the respondent State. Any defects or other problems relating to such a system cannot be remedied by reference to the legal system of any other High Contracting Party, whether neighbouring to the respondent State or not. Therefore, the fact that the applicant in this case had the possibility of a judicial remedy in the United Kingdom in respect of his grievance should be irrelevant to the issue before the Court, which was solely and exclusively whether the applicant had access to the courts in Ireland in respect of the same complaint. I think it is unfair as well as odd to expect the applicant to have recourse to another State as a solution to his problem of lack of access to a court in his own country, against which his complaint was directed.