CONCURRING OPINION OF JUDGE MOTOC

I voted with the majority in this case with a number of reservations. I must point out that in regard to some of the issues at stake, either the Court does not deal with them in its reasoning or my position is different.

The case concerns the infringement of the applicant ’ s right to access the Court, under Article 6 of the Convention, by the Lithuanian State. The applicant, a Lithuanian national and a former employee of the Swedish Embassy in Vilnius, has brought a claim under Article 6 of the Convention in relation to the negation of her court action challenging her dismissal from the Embassy on the basis of State immunity requested by the Kingdom of Sweden and granted by the Lithuanian courts. In assessing the relationship of proportionality between the applicant ’ s right to access the court and the legitimate aim of respecting another State ’ s sovereignty, the Court has concluded that the Lithuanian court has impaired the very essence of the applicant ’ s rights under Article 6, and thus has unduly interfered with her conventional guarantees.

The first issue that I will tackle in my concurrent opinion is the applicability of Article 6 and the question of jurisdiction, the second concerns customary law in matters of immunity in the sphere of employment, the third relates to questions of subsidiarity in the implementation of the relevant provision, and the fourth and last issue concerns remedies.

I . Article 6 and the question of jurisdiction

Article 6 cannot have been intended to confer on the Contracting States jurisdiction which they otherwise do not hold, nor can it have conferred a type of jurisdiction which is contrary to general international law such as to be binding on non-Contracting States. It is regrettable that our Court missed the opportunity also to deal with these considerations in the present judgement.

The ECtHR has never expressly addressed these questions. But the established case-law of our Court states that Article 6 is relevant prima facie to immunity cases. This holds true for this case as well. Furthermore, paragraph 87 of Naku confines itself to stating the following: “[f]irstly the Court observed that in Cudak, which concerned the dismissal of a member of the local staff of an embassy, it found that the grant of immunity to a State in civil proceedings pursued a legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State ’ s sovereignty (ibid., paragraph 60). It does not find any reason to reach a different conclusion in the present case.”

This separation of the two issues of immunity and jurisdiction is in conformity with the general international law position established by the ICJ in its “Arrest Warrant” judgment, which states:

“The rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction “does not imply absence of immunity, while absence of immunity does not imply jurisdiction” (paragraph 59).

The right of access to a court as secured under Article 6 does not confer jurisdiction on a domestic court: although the latter is bound to exercise the jurisdiction which it already holds, it may nonetheless opt not to exercise it pursuant to a rule of international law.

In the present case, the Court might suggest that the domestic courts adopt an approach whereby they are “not bound to choose between the aforementioned competing approaches”, and that granting immunity to Sweden would breach the applicants ’ right of access to a court: the relevant provisions of the Lithuanian Immunities Act have been ruled incompatible with Article 6 ECHR and deemed non-applicable in pursuance of Article 47 of the European Charter of Fundamental Rights, inasmuch as the claims related to rights guaranteed under European Union legislation ( see Philippa Webb, “ A Moving Target: The Approach of the Strasbourg Court to State Immunity ” , A. van Acken and I. Motoc, “The ECHR and General International Law”, Oxford University Press, forthcoming) .

Again, the fact that the applicability of Article 6 was not analysed and backed up with proper reasoning was a missed opportunity for the Court.

II. The role of customary law

The Naku case follows the belief enunciated in the previous jurisprudence on the matter which is taken as an established fact: “the Court has already found that there is a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes ... The Court notes that the application of absolute State immunity has, for many years, clearly been eroded ...” (see paragraph 88). In fact, the Court merely repeated what was stated in Cudak.

In the case of Cudak , the Court had cited the comment of the ILC on Article 11, which stipulates that “the rules established by Article 11 seem to be compatible with the new trends in the legislative and conventional practices implemented by a growing number of States”. The Court subsequently jumped forward from the 1991 draft Articles to the United Nations Convention of 2004, and from “the new trends implemented by a growing number of States” to well-established State practices, largely and representatively accompanied by the opinio juris.

At the time, but in fact still nowadays, the Cudak decision was an example of the ECtHR applying international law without really assessing whether it is appropriate to completely defer legal matters to this sphere. In this light, it is also argued that if the ECtHR had decided to take account of the international norms, it would also have been useful to examine the origin, quality and reliability of the customary norms in question. The growing interference by the Strasbourg Court in the regulation of employment disputes had been criticised because it determines the application of international rules of State immunity from a regional perspective, which approach is not necessarily accepted elsewhere, These criticisms relate not only to courts which take little account of the merits of the internal procedures of alternative dispute resolution, but also to the lack of recognition of the flexibility of the contract as a way to fairly distribute the contradictory interests of all parties (see, for example, R. Pavoni, “The myth of the United Nations Convention on State Immunity: does the end justify the means?”, and A. van Acken and I. Motoc, “The ECHR and General International Law”, Oxford University Press, forthcoming).

The approach to general international law adopted by the European Court of Human Rights through its adherence to Article 11 of the UNCSI (and Article 11 of the Draft Articles of the ILC) has resulted in the emergence of a European Court of Human rights approach, separate from the one governing employment disputes which involve States and international organisations.

National Courts have also followed our Court approach. In Benkharbouche , the UK Court of Appeal has abolished the immunity of Sudan and Libya in what has been called "a dramatic stretch of the principle of effectiveness of EU law." This seems to offer potential applicants the possibility to enforce EU fundamental rights directly, notwithstanding the immunity of the national State, and even against non-member States.

In Naku, the domestic Courts set out “the contemporary international law and doctrine of limited immunity, whereby immunity from the jurisdiction of foreign State courts in areas of State activities are regulated by public law”.

The dilemmas of this case relate not so much to lack of knowledge of the nature of Article 11 UNSCI in the ECHR approach, as if we were in the pre- Cudak era, as to the difficult decision regarding the actual duties of the plaintiff, who presented herself as “Head of Culture and Information Projects at the Embassy ” (see paragraph 30); this will be further explained below.

III . Subsidiarity

The most problematic question raised by the majority in this case is that of subsidiarity. In all the other cases concerning immunity in employment, starting with Cudak, the ECHR gives clear indications to domestic Courts on how to apply the criteria set out in Article11. Naku is the first case in which the Court does not give any such indications.

In Cudak, for example, having stated that it is possible to affirm that Article 11 of the ILC ’ s 1991 Draft Articles, on which the 2004 UN Convention was based, applies to the respondent State under customary international law, the Court “notes that the applicant is not covered by any of the exceptions enumerated by Article 11 of the ILC ’ s Draft Articles”, and analyses the case on the merits.

The Court took the same approach in Sabeh El Leil v. France. Here again the Court noted that Article 11 § 2 was not relevant to that particular case, and in the ensuing paragraphs gave clear indications regarding the application of Article 11 of the ILC ’ s 1991 Draft Articles.

I n Naku, however, the Court chooses simply to criticise the approach of the domestic Courts, which is considered to have an overarching conclusions without giving further indications to the national Courts how to proceed with the application of Article 11 of the Draft Articles of the ILC.

Prima facie, it would seem that compliance with the principle of subsidiarity was more acknowledged and emphasised in this case than in Cudak, Sabeh El Leil and the other subsequent cases.

In fact, the Court left the domestic courts without any indication of how to solve a difficult case of State immunity in the employment sphere. During the domestic proceeding the applicant presented her herself as the Head of Culture and Information Projects at the Embassy. Furthermore, the Swedish government noted that the applicant had the power to decide, unsupervised, how financial support for cultural and related proposed should be granted (see paragraph72).

IV. Remedies

Another highly problematic issue concerns available remedies in the State claiming immunity. In the paragraph 82 of this judgment the Court stated “[i] t could therefore be argued that if the applicant had submitted her complaints to the Swedish courts, they would have applied the substantive law chosen by the parties, that is to say, Lithuanian law. The Court finds that such a remedy, even if it was theoretically available, was not a particularly realistic one in the circumstances of the case. If the applicant had been required to use such a remedy she would have encountered practical difficulties which might hinder her right of access to a court, which, like all the other rights in the Convention, must be interpreted so as to make it practical and effective, not theoretical or illusory (see, among other authorities, United Communist Party of Turkey and Others v. Turkey , 30 January 1998, § 33, Reports of Judgments and Decisions 1998-I; point 4 of the ILC commentary, reproduced in paragraph 58 of this judgment; on this issue also see the extracts from Council Regulation (EC) No. 44/2001, in paragraph 61 of this judgment).

This paragraph inspired by Cudak (par. 36) raises many questions regarding the application of the rules of international private law. Even if the application of the foreign law is difficult, time-consuming and costly, it does not make this remedy theoretical and illusory.

It is even more difficult to agree with this assessment in the present case in the context of Cou ncil Regulation (EC) no.44/2001 .