January 12, 2022
By Ash Stanley-Ryan
International law walks a tightrope between the rights of sovereign States and the rights of those who comprise them. Tip too far to either side and the system breaks – sovereignty either becomes unbridled power, or becomes meaningless. This delicate balancing is most evident when sovereign power and human rights directly collide, as was the case in J.C. and Others v. Belgium. The European Court of Human Rights (‘ECtHR’ or ‘the Court’) was asked to determine whether a grant of state(like) immunity for the Holy See could constitute a violation of Article 6(1) of the European Convention on Human Rights, which enshrines the right to a fair trial, as state immunity had effectively limited the right of access to a court for victims of sexual abuse by members of the Catholic Church in Belgium. Although the outcome – the ECtHR finding no violation – is predictable and follows the established precedent of the Court, the case draws attention to the challenge of balancing human dignity with sovereign immunity, while its obiter focus on availability of remedies is of particular interest.
This case’s procedural history dates back to 2011, when a group of claimants filed a civil case before the Ghent Court of First Instance. The litigation alleged that the Holy See, the Catholic Church of Belgium and individual members of the clergy had failed to prevent and punish sexual abuse within the Church. The Ghent Court of First Instance found that it had no jurisdiction to consider claims against the Holy See, because the Holy See had been recognised as a sovereign by Belgium and enjoyed the same rights and obligations as those enjoyed by a State. These rights included a general immunity from the jurisdiction of foreign courts. The Ghent Court of Appeal upheld this decision, determining that sovereign immunity applied and no exception to it had been triggered. It also considered that state immunity was an accepted limitation on Article 6(1) of the Convention, and that other avenues were available for the plaintiffs to assert their rights. The Ghent Court of Appeal dismissed the claims against individuals for procedural failings. 24 Claimants appealed to the Court, pleading a violation of Article 6(1).
The Court had to consider two key questions of international law:
1. Is the Holy See a sovereign entity, enjoying the same rights and obligations as a State?
2. If so, do any exceptions to immunity apply?
The Court noted Article 2 of the Lateran Pacts, wherein Italy recognised the sovereignty of the Holy See; and then noted that the Holy See frequently undertakes acts associated with sovereignty, including the signature and ratification of bilateral and multilateral treaties. It also acknowledged that the Holy See enjoys member status in several international organisations and maintains diplomatic relations with over 180 States. In Belgium, foreign relations are the domain of the federal executive; diplomatic relations have been maintained with the Holy See for over 170 years. The Court further identified two occasions in its own jurisprudence when its decisions had implied recognition of the Holy See’s international legal personality: Fernández Martínez v. Spain and Travaš v. Croatia.
The Court therefore found nothing unreasonable nor arbitrary in the Belgian courts’ analysis. It accepted that the Holy See is a foreign sovereign with corresponding rights and obligations, including immunity from jurisdiction.
The Court then moved to consider the grant of immunity itself. It emphasised that immunity is a fundamental rule of international law, and that the granting of state immunity pursues the legitimate aim of ensuring that sovereignty is respected. It recalled its past jurisprudence and stated that state immunity cannot, in principle, be regarded as imposing a disproportionate restriction on the right of access to a court.
The Court then considered established and possible exceptions to immunity. It focused on the characterisation of an act, the territorial tort exception (an exception to immunity for personal injury or damage to property committed in the forum state hearing a claim) and whether other new exceptions to the doctrine of immunity have emerged. It also considered the interests of justice.
Immunity attaches to acts of public authority (acta jure imperii) rather than commercial acts. This is often termed the restrictive model of state immunity. The Belgian courts had found that the actions of the Holy See were acts of public authority; the Court accepted this characterisation, and that granting immunity in such cases was consistent with current international law.
The Court declined to consider the territorial tort exception in any depth, because in its view the Belgian courts’ assessment of the matter was neither arbitrary nor manifestly unreasonable.
The applicants also advanced an argument that in cases involving inhuman or degrading treatment, including violations of jus cogens, immunity cannot be maintained. The Court rejected this argument, recalling its own jurisprudence and the decision of the International Court of Justice in Jurisdictional Immunities of the State (Germany v. Italy). The applicants could not demonstrate that international law had developed to include such an exception.
Accordingly, the Court held that Article 6(1) had not been violated because the grant of immunity in this case complied with international law and so was not disproportionate to the legitimate aim pursued.
Finally, the Court considered, in obiter, whether immunity would deprive the claimants of access to justice. It accepted that the interests at stake were serious, concerning underlying acts that fell within the scope of Article 3 on the prohibition of torture or inhuman or degrading treatment or punishment. However, the applicants still had access to justice via an ongoing judicial investigation into sexual abuse within the Belgian Catholic Church. This was true regardless of the fact that the investigation was progressing at a slow rate and could not yet contemplate the award of compensation for damage suffered. In addition, complying with the procedural rules of the Belgian courts would have rendered the complaints against individual members of the Belgian clergy, contained within the original civil claim, admissible.
Judge Pavli issued a dissenting opinion. He questioned the Belgian courts’ interpretation of the territorial tort exception, concluding that their analysis of the issue was ‘unjustifiably cursory’. In Judge Pavli’s view, the key issues at hand were the precise scope of the territorial tort exception: in particular, the nature of the relationship between the Holy See and officials of the Catholic Church, and the question of whether harm occurred within the territory of the forum State. Judge Pavli also noted and heavily criticised an assertion by the Belgian courts that the territorial tort exception does not apply to acts jure imperii. On the basis that the domestic courts were ‘exceedingly summary’ and did not adequately consider the territorial tort exception, Judge Pavli would have found a violation of article 6(1).
This section considers the judgment’s approach to recognition of sovereignty and exceptions to immunities, before briefly discussing the dissenting opinion. It concludes overall that the judgment is conservative and unsurprising, but that its obiter dictum should be of interest to international and European lawyers alike.
On the whole, the judgment treads familiar ground and only hesitantly steps beyond the established contours of international law. This was to be expected: in the words of Judge Pellonpää in al-Adsani, ‘when having to touch upon central questions of general international law, this Court should be very cautious before taking upon itself the role of a forerunner’. International law is a complex system, and the Court’s first priority should be to interpret the European Convention in harmony with outside rules: ‘As the Court has observed on many occasions, the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part.’
The judgment first proceeds from the premise that the Holy See is either a State or a sui generis sovereign entity with the same rights and obligations as a State. Neither the judgment nor the dissenting opinion questioned this, which is unsurprising: after all, recognition of sovereignty is a foreign policy decision. Such decisions typically rest with the executive of a State, although this is, of course, reliant on the domestic constitutional framework. For a domestic court to substitute itself in matters of sovereign recognition would be to violate the separation of powers; for a treaty-established, regional court to do so would arguably be even more damaging. It would risk both the smooth and predictable administration of international relations, and the non-political characterisation of the Court. While there are legitimate questions to be asked surrounding the precise status of the Holy See in international law, and, as Cedric Ryngaert notes in his own analysis of the case, it is a distinct entity from the Vatican State, a judgment of the Strasbourg Court was never the place where those questions would find a definitive answer.
On the question of immunity, the Court also took a generally conservative approach. The law of state immunity is heavily weighted in favour of States, and the procedural barrier to the exercise of jurisdiction has only two exceptions that could be relevant to this case (except, of course, voluntary waivers). The first is that acts of a private or commercial nature – acta jure gestionis – do not attract immunity. This exception primarily serves to ensure that commercial actors can interact with States with confidence. The second is the territorial tort exception, a well-established concept in international law which aims to ensure that acts which cause injury, or damage to property, committed in the territory of a forum State, do not go without compensation. Although originally intended to address motor vehicle accidents, the exception is broadly drafted in treaty law in a manner which renders its potential scope of application wider.
There is no generally recognised exception to state immunity, in current international law, for violations of human rights or even violations of jus cogens norms. This was confirmed by the International Court of Justice in Jurisdictional Immunities of the State (Germany v. Italy), and is also the preferred approach of the Strasbourg Court; the minority view expressed in al-Adsani, that jus cogens violations override state immunity, has failed to gain traction.
With that background in mind, by and large the decision of the Court is not surprising. It is a conservative interpretation of the law of immunities: an exercise of public authority (acta jure imperii) outside the territory of the forum State attracts immunity. This is in line with the established jurisprudence of both the Court and the International Court of Justice. This is the correct interpretation of international law as it currently stands.
However, as Ryngaert notes, what is surprising is how the last paragraphs of the judgment imply that availability of other remedies may have influenced the Court’s decision. Such a test would follow the Court’s previous decision in Waite and Kennedy v. Germany, where it held that availability of alternative means to ensure rights was a “material factor” in granting immunity to an international organisation. However, it would also expand that case’s logic to entities other than international organisations. The potential lack of access to a remedy is not a generally accepted exception to state immunity, and it is not entirely clear what the implications of such a broadened test would be. Ryngaert may well be correct that it reflects hesitance on the part of the Court to treat the Holy See as definitively equivalent to a State. It could equally indicate an attempt to socialise possible broadening of exceptions to immunity; or, it could simply be the Court emphasising that there are still remedies available for survivors of systematic sexual abuse. Whatever the reason, this aspect of the judgment is worth noting.
Interestingly, the dissenting opinion mentions that the Belgian courts identified an exception to the territorial tort exception for acta jure imperii. Such an exception is not ordinarily considered to exist in international law, and appears inconsistent with both Article 11 of the European Convention on State Immunity (which Belgium has signed and ratified), and Article 12 of the United Nations Convention on Jurisdictional Immunity of States and their Property (which Belgium has signed but not yet ratified). The UN Convention’s commentary specifically notes that Article 12 is intended to apply to both public and private acts. This issue is not mentioned in the majority judgment; however, taken alongside the other concerns raised in the dissent, it suggests that a closer inspection of the Belgian court’s dismissal of the territorial tort exception may have been warranted.
The judgment, overall, demonstrates the tension that courts face when human dignity and immunity collide. As discussed, state immunity is weighted in favour of sovereign actors, except in very limited, typically commercial, circumstances. However, despite being legally sound, this approach can and does perpetuate harm. Moreover, it creates the impression that economic certainty is privileged above basic rights – a fair conclusion to reach when a breach of a commercial contract between a State and an individual could be heard by a court, but a violation of human rights, involving the same two parties, could not. Courts find themselves in the challenging position of enforcing a rule of international law that potentially undermines several others.
With that in mind, there are legitimate and serious questions to be asked about the balancing of state immunity and human dignity. Cases like J.C. and Others v. Belgium, while they largely preserve the status quo as concerns immunity from jurisdiction, also present an opportunity to question whether the current law appropriately balances competing interests. It has caused harm to victims of sexual abuse and torture on several occasions; it will do so on several more if nothing changes. Equally, any change to the law which is not well-grounded in State practice and opinio juris, or in treaty law, risks driving inconsistency and uncertainty in international law. Lawyers and States should take note of the obiter statement of the Court, and consider whether it represents an avenue for broadening exceptions to the law of immunity in a manner acceptable to States.