Schona Jolly KC and Joshua Jackson write about the European Court of Human Rights and missed opportunities. — Cloisters
Schona Jolly KC and Joshua Jackson have an article published in the most recent edition of the EHRLR on the recent decision of the European Court of Human Rights to avoid examining the fundamental questions of state immunity, international law and in article 6 in Buttet v United Kingdom:
“A missed opportunity for the Court to clarify the relationship between state immunity and Article 6 in the employment context: (2022) 5 EHRLR 469.”
Tension exists between state immunity laws and the right to a fair trial under Article 6 of the ECHR The case of Buttet v United Kingdom provided the opportunity to clarify to what extent the grant of immunity in matters of employment contracts is compatible with art.6 and, in particular, whether it was permissible to grant immunity on the ground that an employee was a national of the foreign employing State (nationality exception) or was a national thereof without permanent residence in the State of the forum (exception of qualified nationality). The Court acknowledged that there was a question mark over the content of customary international law but did not provide clarification on the procedural grounds. The Court has missed an opportunity to develop its jurisprudence and important questions remain as to customary international law rules regarding state immunity in the employment context.
The article is available in print and also on Westlaw for subscribers.
Schona Jolly KC and Ruaraidh Fitzpatrick both acted for the Claimants in the Strasbourg proceedings in Buttet v United Kingdomassisted by Joshua Jackson.
November 15, 2022