JUNE 2016

    Katherine Reece Thomas

This article examines the recent UK Supreme Court case of United States v Nolan concerning the rights of a dismissed civilian employee of a US military facility in England. It sets out a summary of the court’s findings on European law and ultra vires. It considers the public international law aspects of the appeal and asks if the court’s acceptance that a plea of state immunity is procedural (and does not therefore affect the state’s underlying duty or obligation) means that the UK approach to the relationship between immunity and art.6 of the European Convention on Human Rights (access to justice) needs to be re-examined. The UK courts have hitherto held that art.6 is not automatically engaged by a plea of immunity on the basis that such a plea deprives the court of substantive jurisdiction so there can be no denial of access as access does not exist in the first place. The European Court of Human Rights in Strasbourg has consistently maintained the opposite view and Nolan may have an impact on appeals touching on this issue pending before the Supreme Court.

international law and state immunity; nature of a plea of state immunity; access to justice and state immunity; art.6 of the European Convention on Human Rights; 2004 United Nations Convention on the Jurisdictional Immunities of States and Their Property; employment rights and immunity
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It is a rule of customary international law that a state is entitled to plead immunity in the courts of another state at the very least in respect of its sovereign activities. It is trite law that a state can waive its immunity.

In United States of America v Nolan, it was unsuccessfully claimed that the US could rely on principles of construction under European Union (EU) or international law to avoid a statutory duty to consult employees made redundant by its closure of a military facility in the UK.1 The underlying argument was that one had to interpret the relevant EU Directive and UK Act and Regulations as inapplicable to the jure imperii or sovereign non-commercial activities of foreign states. The interest for international lawyers lies in the US attempt to circumvent substantive liability, having failed to plead state immunity at the initial Employment Tribunal hearing.

The US, not entitled to rely on immunity, was effectively claiming to be exempt from liability under the relevant UK employment law. The state argued, in part, that as a matter of binding international law, the legislation had to be interpreted as though it did not apply to the activities of a foreign state committing a sovereign act overseas, even though those activities would otherwise have attracted liability. Lord Mance (giving the only judgment on international law3) was not persuaded, finding that such a far-reaching exception would effectively lead to all legislation being interpreted to exclude foreign state liability where state immunity could have been pleaded. The creation of what was, in effect, a second chance at state immunity was unwarranted and the appeal was lost on this ground.

The decision is important, despite the seemingly thin US arguments, because of the Supreme Court’s endorsement of the thesis that state immunity is a procedural plea which is distinct from the foreign state’s duty or obligation under English law or the domestic court’s underlying jurisdiction. This concept is gaining momentum internationally, was relied upon in the seminal International Court of Justice (ICJ) case on immunity, Jurisdictional Immunities of the State (Germany v Italy), and may have important implications for recent arguments about the relationship between immunity and the right of access to a court, raised, in particular, by art.6 of the European Convention on Human Rights (ECHR).5 This endorsement of immunity as a matter of procedure which has the effect of exempting a state from the jurisdiction rather than removing jurisdiction altogether6 may have ramifications for a number of cases on appeal to the Supreme Court and suggests that the approach of the Court of Appeal may need to be refined in the Supreme Court.

This note will focus on state immunity and jurisdiction and not on the EU or public law issues.