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State Immunity in Employment Matters

Published online by Cambridge University Press:  17 January 2008

Richard Garnett
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Extract

An area which has received little attention in the academic literature of foreign State immunity to date is that concerning immunity in employment matters.1 This omission can probably be explained by the scant case law which has hitherto existed on the subject. However, in recent years the number of decisions has increased due to the fact that employment by States of foreign nationals has become far more common. Developing countries in particular, as they seek to create new industries, have become increasingly reliant on advisers and technicians from the developed world.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 46 , Issue 1 , January 1997 , pp. 81 - 124
Copyright
Copyright © British Institute of International and Comparative Law 1997

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References

1. Among the major works on State immunity the issue of employment is either (i) referred to briefly as a separate category for consideration or (ii) discussed under the rubric of commercial transactions without any recognition of its distinct nature. See, as examples of (i), Sucharitkul, S., State Immunities and Trading Activities in International Law (1959), pp.240–242, 322Google Scholar; Badr, G., State Immunity; An Analytical and Prognostic View (1984), pp.94–95, 117–119Google Scholar; Lewis, C., State and Diplomatic Immunity (3rd edn, 1990), pp.48–51 (looking at the British immunity legislation)Google Scholar; Greig, D., “Specific Exceptions to Immunity Under the International Law Commission's Draft Articles” (1989) 38 I.C.L.Q. 560Google Scholar; Seyersted, J., “Jurisdiction Over Organs and Officals of States, the Holy See and Governmental Organisations” (1965) 14 I.C.L.Q 31, 36–40Google Scholar and Morris, V., “The International Law Commission's Draft Convention On the Jurisdictional Immunity of States and their Property” (1989) 17 Denver J.I.L. & Poly. 395, 421–423. As examples of (ii)Google Scholar, see Schreuer, C., State Immunity: Some Recent Developments (1988), pp.13–14, 36, 39Google Scholar; Sinclair, I., “The Law of Sovereign Immunity: Recent Developments” (1980) 167 Hag. Rec. 113Google Scholar; Trooboff, P., “Foreign State Immunity: Emerging Consensus of Principles” (1986) 200 Hag. Rec. 235Google Scholar; Lowe, L., “The International Law Commission's Draft Articles On the Jurisdictional Immunity of States and their Property: the Commercial Contract Exception” (1989) 27 Col. J. Transnat. L. 657Google Scholar and Donoghue, J., “Taking the ‘Sovereign’ Out of the Foreign Sovereign Immunities Act: A Functional Approach to the Commercial Activity Exception” (1992) 17 Yale J.I.L. 489.Google Scholar

2. See e.g. in English practice the decisions of the Court of Appeal in the Parlement Belge Case (1880) 5 P.D. 197 and Krajina v. Toss Agency [1949] 2 All E.R. 274. It should be noted, however, that there were Italian decisions dating from the 1920s which suggested that immunity for foreign States was not unqualified; see cases cited in Sucharitkul, idem, p.322, nn.22–23.

3. In particular Belgium and Italy, see Badr, op. cit. supra n.1, at chap.2 and Brownlie, I., Principles of Public International Law (4th edn, 1990), p.327.Google Scholar

4. Alfred Dunhill of London Inc. v. Republic of Cuba (1976) 151.L.M. 735 (US Supreme Court)Google Scholar; Trendtex Trading Corporation Ltd v. Central Bank of Nigeria [1977] 2 W.L.R. 356 (English Court of Appeal).Google Scholar

5. The Trendtex case, e.g., involved a contract for the sale of concrete to a foreign State.

6. This was certainly the view of academic writers. See Seyersted, op. cit. supra n.1; Sucharitkul, , op. cit. supra n.1, at p.242 (although noting that some Italian courts have denied immunity in cases involving employment by foreign State railway companies).Google Scholar

7. This can be seen both in terms of the judicial practice of States and in recent national legislation and multilateral treaties on State immunity (e.g. the European Convention on State Immunity of 1972).

8. See e.g. S v. Republic of India (1984) 82 I.L.R. 13 (Swiss Federal Tribunal).

9. E.g. Crawford, J., “A Foreign State Immunities Act for Australia?” (1983) 8 Aust. Y.I.L. 71, 90Google Scholar; Brownlie, , op. cit. supra n.3, at p.333Google Scholar; Singer, M., “Abandoning Restrictive Sovereign Immunity: An Analysis In Terms of Jurisdiction to Prescribe” (1985) 26 Harv. I.L J. 1, 3 et passim. A territorial approach certainly eliminates the difficulty of having to differentiate between commercial and sovereign acts.Google Scholar

10. Unless, possibly, if the foreign national has a significant residential tie to the forum; see the Australian Foreign States Immunities Act 1985, s.12(3), where such persons are entitled to sue. Cf. the State Immunity Act 1978 (UK), s.4(2).

11. A detailed consideration of the various legislative practices is made below.

12. United States v. The Public Service Alliance of Canada (1992) 94 I.L.R. 264 (Supreme Court of Canada).Google Scholar

13. Van Hulst v. United States of America [1990] Neth. Y.I.L. 379 (Supreme Court of the Netherlands); Saudi Arabia v. Nelson 113 S.Ct. 1471 (1993) (US Supreme Court).Google Scholar

14. The Italian practice, in particular, has drawn the distinction between economic and non-economic aspects of a dispute; see infra nn.68–74 and accompanying text.

15. This point was made by Seyersted, , op. cit. supra n.1, at p.36, who argued that, in the context of employment at diplomatic and consular offices, even involving subordinate employees, “the organic jurisdiction of the sending state … supersedes the combined territorial and personal jurisdiction of the host state. The relationship of employment between the sending state and the employee is subject to the public law of that state and not to the administrative or labour law of the host country.”Google Scholar

16. [1983] I.C.R. 221 (English Employment Appeal Tribunal).

17. Idem, pp.228–229.

18. Arab Republic of Egypt v. Gamal-Eldin [1996] 2 All E.R. 237 (English Employment Appeal Tribunal).

19. United Arab Emirates v Abdelghafar & Abbas (unrep., 10 July 1995, English Employment Appeal Tribunal).

20. Ahmed v. Kingdom of Saudi Arabia [1996] 2 All E.R. 248 (English Court of Appeal).Google Scholar

21. Jayetilleke v. Bahamas (unrep., 14 Dec. 1994, English Employment Appeal Tribunal).

22. Ahmed, supra n.20 at p.256 (per Hutchison, LJ).Google Scholar

23. Canada v. The Employment Appeals Tribunal and Burke [1992] I.R. 484 (Supreme Court of Ireland).Google Scholar

24. Justices McCarthy and O'Flaherty.

25. Burke, supra n.23, at p.500 (per Justice, O'Flaherty).Google Scholar

26. Governor of Pitcairn v. Sutton [1995] 1 N.Z.L.R. 426 (New Zealand Court of Appeal).Google Scholar

27. Idem, p.431 (per President Cooke).

28. Idem, p.436 (per Justice Richardson). The question of immunity with respect to such persons is discussed in more detail at infra nn.82–84 and accompanying text.

29. Conrades v. United Kingdom (1981) 65I.L.R. 205 (Hanover Labour Court).Google Scholar