State Immunity and Strasbourg: Schona Jolly KC and Joshua Jackson write about the European Court of Human Rights and missed opportunities.

Written by Charlotte Gallagher

Schona Jolly KC

Joshua Jackson

Schona Jolly KC and Joshua Jackson have an article published in the most recent edition of the EHRLR on the European Court of Human Rights’ recent decision to avoid examining core issues relating to state immunity, international law and Article 6 in Buttet v UK:

“A missed opportunity for the Court to clarify the relationship between state immunity and Article 6 in the context of employment: (2022) 5 EHRLR 469.”

A tension exists between the laws of state immunity and the right to a fair trial under Article 6 ECHRThe European Court of Human Rights has not fully resolved this tension in its jurisprudence, owing to ambiguity regarding the rules of customary international law on state immunity. The case of Buttet v UK   provided an opportunity to clarify the extent to which grants of immunity in relation to employment contracts are compatible with art.6 and, in particular, whether it was permissible to grant immunity on the basis that an employee was a national of the foreign employer state (Nationality Exception) or was a national of the same without permanent residence in the forum state (Qualified Nationality Exception). The Court recognised there was a question mark over the content of customary international law but failed to provide clarification on procedural grounds. The Court missed an opportunity to develop its jurisprudence and significant questions remain over the rules of customary international law regarding state immunity in the employment context.

The article is available in hard copy and also on Westlaw for subscribers.

Schona Jolly KC and Ruaraidh Fitzpatrick both acted for the Claimants in the Strasbourg proceedings in Buttet v UK, assisted by Joshua Jackson.

15th November 2022