International law, Sixth edition
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International Law MALCOLM N. SHAW
Norwegian Embassy v. Quattri, for example, the Italian Court of Cassation
referred to an international trend of restricting immunity with regard to employment contracts. The Court held that under customary interna- tional law immunity was available, but this was restricted to acts carried out in the exercise of the foreign state’s public law functions. Accordingly, no immunity existed with regard to acts carried out by the foreign state in the capacity of a private individual under the internal law of the re- ceiving state. An example of this would be employment disputes where the employees’ duties were of a merely auxiliary nature and not intrinsic to the foreign public law entity. 157 In Barrandon v. USA, the French Court of Cassation (1992) and subsequently the Court of Appeal of Versailles (1995) held that immunity was a privilege not guaranteed by an inter- national treaty to which France was a party and could only be invoked by a state which believed it was entitled to rely upon it. Immunity from jurisdiction was limited to acts of sovereign power (puissance publique) or acts performed in the interest of a public service. In the instant case, the plaintiff, a nurse and medical secretary at the US embassy, had performed functions clearly in the interest of a public service of the respondent state and immunity was therefore applicable. 158 However, on appeal the Court of Cassation (1998) reversed this decision and held that her tasks did not give her any special responsibility for the performance of the public 155 65 ILR, p. 325. See also Military Affairs Office of the Embassy of the State of Kuwait v. Caramba-Coker, EAT 1054/02/RN, Employment Appeals Tribunal (2003) and Aziz v. Republic of Yemen [2005] EWCA Civ 745. 156 (1992) 91 DLR (4th) 449; 94 ILR, p. 264. 157 114 ILR, p. 525. See also Canada v. Cargnello 114 ILR, p. 559. See also a number of German cases also holding that employment functions forming part of the core sphere of sovereign activity of the foreign states would attract immunity, otherwise not, X v. Argentina 114 ILR, p. 502; the French Consulate Disabled Employee case, 114 ILR, p. 508 and Muller v. USA 114 ILR, p. 513. 158 113 ILR, p. 464. i m m u n i t i e s f r o m j u r i s d i c t i o n 727 service of the embassy, so that her dismissal was an ordinary act of ad- ministration so that immunity was not applicable. 159 Practice is far from consistent. Courts in a number of states have accepted immunity claims in such state immunity/employment situations, 160 while courts in others have rejected such claims. 161 Other non-immunity areas Domestic and international instruments prohibit sovereign immunity in cases of tortious activity. 162 Article 11 of the European Convention on State Immunity, 1972, for example, refers 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’. Section 5 of the UK State Immunity Act provides that a state is not immune as respects proceedings in respect of death or personal injury, or damage to or loss of tangible property, caused by an act or omission in the UK, 163 while section 1605(a)(5) of the US Foreign Sovereign Im- munities Act 1976, although basically similar, does include exceptions relating to the exercise of the state’s discretionary functions and to claims arising out of malicious prosecution, abuse of process, libel, slander, mis- representation, deceit or interference with contractual rights. In Letelier v. Chile, 164 the Court rejected a claim that the torts exception in this 159 116 ILR, p. 622. The case was remitted to the Court of Appeal for decision. 160 See e.g. the Brazilian Embassy Employee case, 116 ILR, p. 625 (Portuguese Supreme Court) and Ramos v. USA 116 ILR, p. 634 (High Court of Lisbon). 161 See e.g. Landano v. USA 116 ILR, p. 636 (Labour Court of Geneva); Nicoud v. USA 116 ILR, p. 650 (Labour Court of Geneva); M v. Arab Republic of Egypt 116 ILR, p. 656 (Swiss Federal Tribunal); R v. Republic of Iraq 116 ILR, p. 664 (Swiss Federal Tribunal); Fran¸cois v. State of Canada 115 ILR, p. 418 (Labour Court of Brussels); Kingdom of Morocco v. Download 7.77 Mb. Do'stlaringiz bilan baham: |
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