State Immunity and the Rights of Employees: Lights and Shadows of the Strasbourg Court’s Jurisprudence

Abstract

This paper analyzes the case law of the European Court of Human Rights on the relationship between state immunity and the foreign state employees’ right of access to a court, protected under Article 6 of the European Convention on Human Rights. While acknowledging that the case law of the Strasbourg Court has in many respects contributed to providing employees of foreign states with broader access to the courts of the receiving states, the paper submits that the Court’s handling of labor cases presents some major flaws. Namely, it is argued that (i) the Court’s assessment of the norms of customary international law in the area of state immunity from employment lawsuits is ill-proven and largely unconvincing; (ii) this flawed assessment of custom has had a negative impact on the scope of the employees’ right of access to a court; and (iii) under the approach followed by the Strasbourg Court, certain categories of state employees may be left without any judicial means of obtaining redress. It appears crucial that the Court addresses such flaws in future cases.