Arias v Venezuela

• Jurisdiction: Holanda
• Judgment Date: 04 February 1998
• Court: District Court (Netherlands)
• Date: 04 February 1998

The Netherlands, District Court of The Hague.

Arias

and

Venezuela

State immunity Jurisdictional immunity Locally recruited foreign national employed as secretary by mission of foreign State Contract of employment Claim for wrongful dismissal Whether foreign State entitled to jurisdictional immunity Employee neither national of nor permanently resident in receiving State Whether dismissal of such an employee covered by immunity Draft international provisions on the matter Whether reflecting current position under customary international law The law of the Netherlands

Summary: The facts:Ms Arias (A) was employed as a secretary in the Embassy of Venezuela in The Hague from 15 April 1980 onwards, where she was a member of the clerical staff. She was born in Argentina and obtained dual nationality in 1987 when she became a naturalized Dutch national. She was dismissed on 1 September 1995. She then brought proceedings against Venezuela before the Sub-District Court of The Hague, claiming payment of a substantial sum of money on account of unlawful and manifestly unreasonable dismissal, as well as an adequate pension provision. The judge of the Sub-District Court held that he lacked jurisdiction over the application owing to the immunity from jurisdiction to which Venezuela was entitled (judgment of 28 November 1996). The plaintiff appealed against this judgment to the District Court of The Hague.

Held:The Court was competent to exercise jurisdiction over the dispute.

(1) State immunity was not regulated by the Vienna Convention on Diplomatic Relations, 1961. However, the preamble to the Convention did indicate that the rules of customary international law should continue to govern questions not expressly regulated by the Convention.

(2) It was to be inferred from international provisions and draft provisions, including the European Convention on State Immunity, 1972, the International Law Commission Draft (1986) and the International Law Association Draft of Montreal (1982) that a foreign State could not claim immunity in respect of the present kind of dispute, unless the employee concerned was neither a national of the host country at the time when the employment contract was entered into nor permanently resident in the receiving country. Although none of these texts were directly binding on the Netherlands, they reflected the current view of the position under customary international law. This exception applied in the present case. The position was not...