New French Court Decision on Liability of Host State for Recognizing Immunity to International Organizations
By Frédéric Dopagne and Bert Theeuwes
By a judgment delivered on 7 February 2017, the Paris Administrative Court of Appeals confirmed that the French State must compensate an individual who could not enforce a judgment against the United Nations High Commissionner for Refugees (UNHCR) due to the immunity from execution enjoyed by the UNHCR on French territory. The Conseil d’État – the French Administrative Supreme Court – had previously taken a different stance in the case at hand.
The plaintiff was dismissed from employment by the UNHCR. He obtained a judgment from the French courts ordering the UNHCR to pay him compensation. The UNHCR refused to execute this judgment, relying on the immunity from execution provided for in Section 2 of the 1946 Convention on the Privileges and Immunities of the United Nations (which the 1953 Host Agreement between France and the UNHCR referred to).
The plaintiff then sought damages from the French State. He argued that, by recognizing immunity to the UNHCR, French authorities breached the equality between citizens, and must compensate the harm that he suffered accordingly. Such a theory of no-fault liability of the State for the application of rules of international law is, indeed, fairly well-established in French administrative case-law. Nevertheless, for the theory to apply, the harm invoked by the individual must be ‘serious and special’, in other words it cannot be regarded as a public charge that typically is imposed on the individuals concerned.
The Paris Administrative Court of Appeals granted the plaintiff’s appeal a first time in 2014. The Conseil d’État, however, quashed this ruling in 2015: it held that the Paris Court failed to enquire whether – as contended by the French State – an alternative remedy (including arbitration) could have been exercised by the plaintiff and could have offered him reasonable chances to recover his debt, hence the alleged damage did not possess a ‘direct and certain’ character.
In its recent decision, the Paris Administrative Court of Appeals stands by its initial, 2014 judgment. With respect to the possibility of an arbitration, the Paris Court considers that the offer of arbitration addressed to the plaintiff by the UN authorities was purely formal and did not offer him reasonable chances to assert his right to compensation, therefore the harm invoked is duly ‘direct and certain’.
It is likely that the case will be heard once again by the Conseil d’État. The final outcome will be interesting to assess, as it is obviously important to know the specific conditions under which the liability of France as a host State may be engaged on account of immunities recognized to international organizations.
It also remains to be seen whether this tendency in the French jurisprudence will somehow be transposed in other domestic legal systems which recognize no-fault State liability.