March 10, 2026
By Stefan Robert McClean and Udit Mahalingam
By six votes to one, the European Court of Human Rights (ECtHR or the Court) in Renouard v France held that the conferral of jurisdictional immunity to the United Arab Emirates (UAE) before French courts did not breach Article 6 of the Convention on the right to access courts and tribunals. The outcome of the case is, at first glance, unsurprising. However, the circumstances surrounding the assignment of State immunity, and its treatment by the ECtHR, give rise to broader questions as to the place of the European Convention (ECHR) within the international legal order.
In view of these considerations, we propose that when harmonisation between the ECHR and other rules of international law cannot be achieved, the Court must use the proportionality standard as a meaningful measure of rights protection.
The applicant acted as a project intermediary between the UAE and academic authorities in France concerning the establishment of a La Sorbonne University Campus in Abu Dhabi. For the applicant’s services in securing the final agreement, UAE authorities agreed to pay the sum of 2,000,000 euros. Despite the successful completion of the project the applicant was not remunerated for his services.
In 2013, the Tribunal de Grande Instance (Court of First Instance) dismissed the claims against the UAE authorities upholding the bar to jurisdiction as a result of State immunity. The Court held that the project fell within the realm of acta jure imperi (acts by right of government) rather than acta jure gestionis (acts by right of private transaction); namely, the public service mission of education. As such, the act was not of a commercial nature to exclude State immunity. The Court of Appeal overturned the judgment of the Court of First Instance, rejecting the bar to jurisdictional immunity for the UAE Presidential Affairs Ministry due to the private and commercial nature of the agreement. However, the Court of Cassation annulled the judgment, upholding the decision of the Court of First Instance enforcing jurisdictional immunity.
The general rule that one State may not exercise adjudicative jurisdiction against another absent of consent is a matter of customary international law. However, the old customary rule of absolute jurisdictional immunity has given way to a new practice of restrictive immunity. The rule of restrictive immunity distinguishes between acta jure imperii and acta jure gestionis applying immunity only to acts relating to the former. In other words, as the ICJ held in Jurisdictional Immunities(para 60), the nature and character of the act is determinative. State acts of a private and commercial nature are, as a matter of customary international law, exempt from any rule of jurisdictional immunity.
In this case, the European Convention on State Immunity was not directly applied as the UAE is not a Contracting State. In addition, while France has ratified the United Nations Convention on Jurisdictional Immunities of States and Their Property (UN Convention), the UAE has not, nor is the UN Convention in force. Nevertheless, for the purposes of identifying the French position as to the nature of jurisdictional immunity as a matter of custom, the text of the UN Convention is useful. Indeed, prior to 2016, France had not passed legislation governing the law of State immunity before French courts.
Article 10 of the UN Convention provides that States cannot invoke jurisdictional immunity in proceedings arising out of a commercial transaction in the forum State. For the purposes of the UN Convention, Article 2(c) defines a commercial transaction as any commercial contract or transaction for the sale of goods or supply of services. To determine whether a contract or transaction is commercial, a high level of regard should be paid to the nature of the contract, however, its purpose should also be taken into consideration. Due to France’s ratification, this construction of restrictive immunity is an expression of opinio juris as concerning the rule of jurisdictional immunity under customary international law.
It is arguable that as a matter of law, the French courts simply made the wrong decision. The act concerned the delivery of services to facilitate an agreement between State authorities and a university. While the purpose of the agreement was in the public interest of higher education, the nature of the act was commercial, namely, the supply of ordinary professional services. Therefore, so goes the argument, French courts should not have permitted the UAE to invoke State immunity in proceedings concerning a commercial transaction. The act of permitting jurisdictional immunity in such circumstances could amount to a breach of customary international law.
This was not the approach of the ECtHR. The Court, being constrained to apply only the ECHR, had to determine whether a breach of Article 6 occurred.
In assessing the applicant’s complaint, the ECtHR reiterated its settled position that the right of access to a court under Article 6(1) of the Convention is not absolute and may be subject to limitations pursuing a legitimate aim and meeting the requirements of proportionality (paras 35-36). Relying on Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), the Court stressed that the Convention must be interpreted in harmony with relevant rules of international law, including those governing State immunity (paras 37-38). Against that background, it reaffirmed that measures reflecting generally recognised rules of international law on State immunity cannot, in principle, be regarded as imposing a disproportionate restriction on access to a court (para 38). The conferral of immunity on the UAE pursued the legitimate aim of respecting international law so as to promote comity and good relations between States by respecting the principle of sovereign equality (paras 41-43).
Turning to proportionality, the Court accepted the French courts’ reliance on the distinction between acts jure imperii and jure gestionis, noting that they had examined both the nature and the purpose of the mission in light of Article 2 of the UN Convention (paras 49-52). Given the absence of a written contract, and the extensive documentation demonstrating that the operation aimed at establishing a public higher-education institution, the Court held that the domestic courts’ conclusion that the mission formed part of a public service function was neither arbitrary nor manifestly unreasonable (para 52). Finally, the Court rejected the applicant’s argument concerning the lack of independence of the Emirati judiciary, holding that the French courts could not be criticised for refusing to presume such a deficiency in the absence of concrete evidence of a risk of denial of justice (para 53). Accordingly, there had been no violation of Article 6 (1) (paras 54-55).
In a forceful dissent, Judge Serghides argued that the majority’s reasoning was flawed. In his view, the Court substituted a review of legality for a genuine assessment of proportionality, thereby emptying the right of access to a court of its practical effect (dissent, paras 4, 9(c)). Judge Serghides criticised the majority for treating compliance with generally recognised rules of international law on State immunity as both the premise and the conclusion of their proportionality analysis. Such an approach, in his view, reduced a review of proportionality into a “tautology”, whereby immunity is deemed proportionate simply because it exists. Central to this dissent was the principle of effectiveness, which Judge Serghides articulated through four cumulative criteria: (i) a broad interpretation of the right; (ii) a strict interpretation of restrictions; (iii) a genuine balancing of competing interests; and (iv) an outcome that renders the right practical and effective rather than theoretical or illusory (para 5). He argued that all four criteria were inverted in the present case (dissent, paras 6-9).
More specifically, Judge Serghides contended that State immunity, when applied as an automatic bar to jurisdiction, constitutes an absolute restriction incompatible with Article 6, since absolute restrictions “lead to the death of a right” (dissent, para 9(a)). He rejected the majority’s reliance on the “very essence” test, noting that immunities, by definition, eliminate access to a court and therefore necessarily impair the substance of the right (dissent, para 9(b)). The dissent further criticised the Court’s reliance on the availability of proceedings before the Emirati courts as a factor in their conclusion, emphasising that Convention obligations cannot be outsourced to non-Contracting States and that the assessment under Article 6 must be confined to the legal order of the respondent State (dissent, para 9(b)).
On the interaction between the Convention and general international law, Judge Serghides accepted that relevant rules of international law must be “taken into account” under Article 31(3)(c) of the VCLT but stressed that this does not permit the substitution of guarantees under the Convention (dissent, para 10). In his view, the Convention constitutes a lex specialis in the field of human rights; as such, the right of access to a court cannot be overridden by doctrines of State immunity designed to regulate inter-State relations rather than individual rights (dissent, paras 11-13). Finally, Judge Serghides argued that immunity is a jurisdictional bar that should be addressed at the admissibility stage. Once the Court chose to examine the merits, it was logically bound to conduct a full proportionality analysis, which it failed to do (dissent, paras 14-17). For these reasons, Judge Serghides concluded that there had been a violation of Article 6(1) (dissent, para 18).
Renouard is the latest addition to a line of cases in which the Court has articulated its approach to the relationship between the right of access to a court and State immunity. The starting point of the Court’s case-law is clear: the right of access to a court under Article 6(1) operates as a limitation on domestic courts’ discretion as to the exercise of jurisdiction. Immunity does not negate jurisdiction ab initio; rather, it constitutes a “procedural bar” to its exercise: Al-Adsani v. United Kingdom (para 48). Article 6(1) is therefore engaged, and any interferences must be justified as proportionate to the legitimate aim of ensuring compliance with customary international law.
In Renouard, the Court reiterated its long-standing view that “measures […] which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court” (para 38). That proposition is firmly entrenched in the Court’s jurisprudence: see e.g. Al-Adsani v. United Kingdom(para 56); McElhinney v Ireland(para 49); Fogarty v United Kingdom (para 36); Sabeh El Leil v France(para 49); Cudak v Lithuania(para 57); Oleynikov v Russia (para 57); Jones v United Kingdom (para 189). Of course, such an approach may be justified on the basis that it preserves respect for the principle of sovereign equality, which underpins the law of State immunity. Yet it also has the capacity to perpetuate a formalistic approach to proportionality review, one that directs the Court’s attention to the mere existence of sovereign immunity, rather than the extent of its application in a given case.
This is precisely the methodological concern articulated by Judge Serghides in his dissent in Renouard. By treating the existence of a generally recognised rule of immunity as presumptively sufficient to justify limitations on the right of access to court, the Court risks foreclosing a substantive review of whether, in the particular circumstances of a case, a denial of jurisdiction strikes a fair balance between the competing interests at stake. In such circumstances, there remains the danger that “the access left to the individual [is reduced] in such a way or to such an extent that the very essence of the right is impaired”: Jones v United Kingdom (para 186).
That is not to say that the Court has not engaged in a more searching review of proportionality where domestic courts have extended jurisdictional immunity beyond the requirements of customary international law. Indeed, in Cudak v Lithuania, the Grand Chamber examined whether the conferral of immunity in an employment dispute corresponded with shifts in the international community towards the doctrine of relative immunity in matters relating to dismissal, as reflected in Article 11 of the UN Convention (paras 64-67). Having concluded that the applicant’s duties did not involve the exercise of sovereign authority (paras 69-70), the Court held that the Lithuanian courts had extended immunity beyond what was generally recognised under international law, and that the resulting restriction on access to a court was disproportionate (paras 74-75).
What the majority’s opinion in Renouard does underscore, however, is the practical limits of the Court’s current approach. It is at least arguable that the French courts in this case misclassified the intermediary services as an act performed in the exercise of sovereign authority. Yet the Court did not independently assess that characterisation in its assessment of proportionality. In such circumstances, proportionality review functions less as an autonomous balancing of competing interests and more as a review of the reasonableness of a domestic court’s understanding of custom. This dynamic prefigures a broader, more structural concern.
How should the Court respond to a possible world order where general international law, due to changes in custom, more often becomes at odds with the Convention and human rights? Recent times highlight that States, endowed with law-making authority, may take international custom on a path of departure from the ECHR. In such circumstances, compliance with generally recognised rules of international law, as the example of immunity illustrates, cannot automatically be assumed to constitute proportionate limitations on rights under the Convention. Indeed, in future, the Court will have to directly contend with normative conflicts between customary rules beyond immunity, such as those on the use of force, and the Convention.
The proportionality analysis applied by the ECtHR in relation to customary rules is thoroughly interpenetrated with the logic of harmonisation. By recognising adherence to customary international law as a legitimate aim, the Court seeks to integrate the Convention within a broader system of international legal obligations. Whether the practice and opinio juris of States departs from the Convention, therefore, matters insofar as the ECtHR is concerned. The task for the Court, in this context, is to pursue compatibility, without presuming it. As the International Court of Justice noted in its recent Advisory Opinion on Obligations of States in Respect of Climate Change: “it is a generally recognized principle that, when several rules bear on a single issue, they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations” (para 165).
“To the extent possible” is the crucial caveat here. While the principle of systemic integration under Article 31(3)(c) of the VCLT may assist the Court in construing rights under the Convention in a manner which complements customary rules, the treaty text itself cannot be rewritten via a process of harmonious interpretation. The priority given to the text is even more important if other rules of international law hinder the effectiveness of the Convention and the extent to which its provisions are not “theoretical or illusory”, but “practical and effective”: Airey v Ireland(para 24).
In our submission, it would be beyond the Court’s judicial function to revise customary obligations to fit within the framework of the Convention through a process of rule identification hidden within a proportionally analysis. In the event of an unavoidable conflict, the ECtHR should simply declare and acknowledge the inconsistency and engage in a substantive assessment of proportionality.
The case of Renouard provides a glimpse into the interpretive toolkit the Court has at its disposal when dealing with other rules of international law. While the current law of restrictive immunity from adjudicative jurisdiction can generally be characterised as a legitimate aim amounting to a propionate interference with the ECHR, this will not always be the case when other customary rules are at play. States will always pursue a legitimate aim when crafting and adhering to other rules of international law, even if those rules constrain existing human rights. In such circumstances, the proportionality standard must act as a meaningful safeguard to protect rights under the Convention.
In today’s world, it would be foolhardy to suggest that measures adhering to other rules of international law cannot in principle be regarded as imposing a disproportionate restriction on the enjoyment of Convention rights. While the Court should continue to strive for a harmonious interpretation of the Convention to ensure compatibility with other rules of international law, it must also recognise the limits of such a process. In the event of direct conflict, where new customary rules undermine human rights protection, the ECtHR should identify them as disproportionate limitations and highlight the normative conflict. While this act will not displace the binding force or validity of the custom, it will expose the inconsistency between conflicting norms in a manner commensurate with the judicial function of the Court.
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