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|Neutral Citation Number:  EWHC 1807 (Ch)
|Case No: HC09C01992
IN THE HIGH COURT OF JUSTICE
|Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE ROSE
Lord Pannick QC and Ms Shaheed Fatima (instructed by HowardKennedyFsi LLP) for the Defendant/Applicant
Mr. Edward Fitzgerald QC and Mr Tom Hickman (instructed by Neumans Solicitors LLP) for the Claimant/Respondent
Hearing date: 1 May 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mrs Justice Rose :
- The Defendant ('Prince Abdul Aziz' or 'the Prince') applies under CPR 11.1 for an order declaring that the court has no jurisdiction to try this claim against him on the grounds that the claim is barred by the defence of state immunity under the State Immunity Act 1978.
- The Claimant ('Mrs Harb') alleges that in March 1968, when she was 19 years old, she was married in secret to the sovereign of the Kingdom of Saudi Arabia, the late King Fahd, Prince Abdul Aziz's father. At the time of the marriage King Fahd was a Prince and Minister of the Interior of Saudi Arabia; he acceded to the throne on 13 June 1982. Mrs Harb says that at some point before 1970 King Fahd promised to provide for her financially for the rest of her life; that he did provide for her from that time until he suffered a stroke in 1995; but that since his stroke he has failed so to provide for her. In May 2003 her solicitors sent to King Fahd in Riyadh a copy of a draft statement on which she said she would rely in proceedings she intended to bring against him in England under section 27 of the Matrimonial Causes Act 1973 ('the matrimonial proceedings'). In response to that letter Prince Abdul Aziz, she says, agreed to meet her in London on 19 June 2003. Mrs Harb alleges that at that meeting Prince Abdul Aziz told her he was prepared to honour the terms of his father's promise to provide for her financially. More particularly Prince Abdul Aziz offered to pay her a lump sum of £12 million and to transfer to her the title to two properties in Central London. She says that accepted that offer in satisfaction of the late King's promises. She also promised Prince Abdul Aziz that she would withdraw certain assertions she had proposed to include in her statement in the matrimonial proceedings and further that she would take steps to preserve the confidentiality of information she had provided to her legal advisers relating to her relationship with the late King. She has, she asserts, fulfilled her side of the bargain but she has not received either the £12 million or the title to the London properties.
- Mrs Harb launched the matrimonial proceedings against King Fahd in January 2004. The claim was dismissed by reason of state immunity by the President of the Family Division in a judgment dated 15 December 2004. The Court of Appeal gave Mrs Harb permission to appeal but King Fahd died on 1 August 2005, bringing the matrimonial proceedings to an end: see the judgment to that effect in Harb v King Fahd Bin Abdul Aziz  1 WLR 578.
- The present claim was issued against Prince Abdul Aziz on 15 June 2009 shortly before the expiry of the limitation period. It was issued by Mrs Harb's trustee in bankruptcy but I shall treat it as having been brought by Mrs Harb as she has subsequently bought the claim from her trustee. The claim form states that the claim arises:
"from a breach of an agreement made between the Defendant and Mrs Janan George Harb in 2003 by which the Defendant agreed to pay Mrs Harb the sum of £12 million and to transfer to her the properties at 108 and 129 Pier House, Cheyne Walk, London ("the Properties")."
- The relief claimed is an order requiring Prince Abdul Aziz to transfer the Properties to Mrs Harb and to pay damages in the sum of £12 million and/or for the value of the Properties and interest.
- I emphasise at the outset of this judgment that the Prince has not made any response as regards the accuracy or otherwise of any of the allegations made by Mrs Harb – his submissions have been limited to contesting the jurisdiction of the court. I have seen a letter from the Royal Embassy of Saudi Arabia in London dated 4 May 2010 and addressed to the Prince's solicitors saying that the Kingdom of Saudi Arabia supports the claim for state immunity made by the Prince in these proceedings.
The issues raised by the Prince's application
- By the time the hearing of the application came before me the issues had been substantially narrowed by the agreement of the parties that the application should proceed on the basis of some important assumptions. These assumptions, both sides stressed, apply solely for the purpose of determining this application and will have no bearing on the proceedings if they go forward. The first assumption is that at the time of any alleged discussions and agreement with Mrs Harb in 2003, the Prince was acting as a conduit for or representative of his father, King Fahd. The effect of this assumption is that it is accepted that the Prince is entitled to the same immunity from suit in respect of any agreement concluded with Mrs Harb as his father was entitled to then and as his father's estate is entitled to now. I should make clear that this assumption has nothing to do with the issue that might arise in contract law as to whether in 2003 the Prince was contracting with Mrs Harb on his own behalf or as agent for his father – that is a different question.
- The second assumption is that if Mrs Harb's claim had been brought whilst King Fahd was alive and serving as the sovereign head of state of Saudi Arabia, both the King and the Prince would have been able to claim sovereign immunity in the English courts to defeat her claim.
- The sole question for decision in this application is therefore whether when the King ceased to be head of state of Saudi Arabia on his death, his immunity from suit (and hence the Prince's) continued to extend to everything he did when he was head of state, whether of an official or private nature. Counsel for both parties told me that they have been unable to find any legal authority directly on this issue and that there is no commentary in text books and no learned articles considering the question. Their researches have not uncovered any reference to a claim previously having been brought against the estate of a head of state who died in office. Given the calibre of the legal representation in this case, I can be confident that means that there is none to be found.
The relevant domestic and international law instruments
- The immunity from suit enjoyed by a head of state is conferred by section 20(1) of the State Immunity Act 1978 ('the SIA 1978'). That provides:
"20. Heads of State.
(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to—
(a) a sovereign or other head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants."
- The SIA 1978 therefore directs us to the Diplomatic Privileges Act 1964 ('the DPA 1964') which by section 2 gives effect in United Kingdom law to certain articles of the Vienna Convention on Diplomatic Relations 1961 ('the Vienna Convention') as set out in a Schedule to the Act. Those articles include article 39 which provides:
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission."
- Lord Browne-Wilkinson noted in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3)  1 AC 147,  UKHL 17 ('Pinochet (No. 3)') that the task of transposing the immunity enjoyed by a head of mission in Article 39 to the position of a head of state under section 20 is not a straightforward one:
"The correct way in which to apply Article 39(2) of the Vienna Convention to a former head of state is baffling. To what "functions" is one to have regard? When do they cease since the former head of state almost certainly never arrives in this country let alone leaves it? Is a former head of state's immunity limited to the exercise of the functions of a member of the mission, or is that again something which is subject to "necessary modification"? It is hard to resist the suspicion that something has gone wrong. A search was done on the parliamentary history of the section. From this it emerged that the original section 20(1)(a) read "a sovereign or other head of state who is in the United Kingdom at the invitation or with the consent of the Government of the United Kingdom." On that basis the section would have been intelligible. However it was changed by a Government amendment the mover of which said that the clause as introduced "leaves an unsatisfactory doubt about the position of heads of state who are not in the United Kingdom"; he said that the amendment was to ensure that heads of state would be treated like heads of diplomatic missions "irrespective of presence in the United Kingdom." The parliamentary history, therefore, discloses no clear indication of what was intended. However, in my judgment it does not matter unduly since Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law."
- Lord Goff of Chieveley in the same case also referred to this Parliamentary history before concluding:
"We have, therefore, to be robust in applying the Vienna Convention to heads of state "with the necessary modifications". In the case of a head of state, there can be no question of tying Article 39(1) or (2) to the territory of the receiving state, as was suggested on behalf of the appellants. Once that is realised, there seems to be no reason why the immunity of a head of state under the Act should not be construed as far as possible to accord with his immunity at customary international law, which provides the background against which this statute is set:"
- The first issue I need to consider therefore is the scope of the immunity in customary international law for a head of state. Certain legal propositions are common ground between the parties and form the background to the issue raised by this case. During the period when the head of state holds office, there is no doubt that his immunity from suit extends to all matters whether official or private. This is illustrated by Mighell v Sultan of Johore  1 QB 149. In that case it was alleged that the Sultan, a sovereign prince, had come to England, adopted the name Albert Baker, promised to marry the plaintiff and then broken that promise. The Court of Appeal held that he was immune from suit. Lord Esher MR, having examined the relevant case law, quoted from his own earlier judgment in The Parlement Belge 5 P.D. 197 where he had said:
"The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state, each and every one declines to exercise by means of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction."
and went on to say that rule was 'laid down absolutely and without any qualification'.
- If more recent authority is sought, it can be found in Aziz v Aziz and ors (Sultan of Brunei intervening)  EWCA Civ 712 ('Aziz'). The Court of Appeal was considering the relevance of the Sultan of Brunei's status as head of state to the question whether he was entitled to confidentiality of certain information about him that might be disclosed in the course of litigation to which he was not a party. Lawrence Collins LJ confirmed the scope of immunity that is enjoyed by the head of state in his personal capacity: see paragraphs 56 and 57 of the judgment.
- The second principle by way of background is that when a head of state ceases to hold office during his lifetime, his on-going immunity from suit is thereafter limited to acts which constituted the performance of his official functions during his period in office. This was the point discussed in Pinochet (No. 3) although the acts which were the subject of the suit there were not private acts committed whilst in office but acts of torture. The scope of immunity from suit conferred on heads of state was considered by Lord Browne-Wilkinson. He set out the relevant principles as follows:
i) The immunity enjoyed by a head of state in power is a complete immunity attaching to the person of the head of state and rendering him immune from all actions or prosecutions whether civil or criminal and whether or not they relate to matters done for the benefit of the state. This immunity is said to be granted ratione personae.
ii) At common law, a former head of state enjoys more limited immunity once he ceases to be head of state. He loses immunity ratione personae and enjoys instead an immunity ratione materiae, that is immunity in relation to his official acts during his tenure in post. He can be sued on his private obligations: see page 202F-H and the authorities cited there.
iii) Senator Pinochet was entitled to immunity from the charges of murder and conspiracy since these were official acts committed whilst he was in office. But to grant immunity in respect of the international law crime of torture would frustrate the application of the Torture Convention 1984, to which Chile was a signatory state. Senator Pinochet therefore did not have immunity in respect of charges of torture or conspiracy to torture after the coming into force in the United Kingdom of the Criminal Justice Act 1988 which implemented that Convention.
- Lord Hutton in Pinochet (No. 3) also emphasised the distinction between the immunity ratione personae of a serving head of state and the immunity of a former head of state ratione materiae: see page 249E-250C. It is accepted by the Prince that any agreement he or his father had with Mrs Harb was a private matter rather than an exercise of the King's official functions so that the Prince's application cannot succeed if his late father's immunity is only immunity ratione materiae and not ratione personae.
- Mr Fitzgerald QC appearing for Mrs Harb drew my attention to many places in the speeches in Pinochet (No. 3) where their Lordships referred to the complete immunity of a 'serving' head of state or, by contrast, of a head of state having ceased to hold office or having left office. He submitted that I am bound by the authority of the House of Lords to hold that the Prince is not entitled to immunity from suit here. He argues that Pincohet (No. 3) is authority for the proposition that a former head of state, regardless of how he comes to leave office, only enjoys immunity from suit in respect of official acts. Lord Pannick QC for the Prince argues that their Lordships in Pinochet (No. 3) did not have in mind the situation where the head of state had died in office, given that Senator Pinochet was very much alive during those protracted proceedings. The fact that King Fahd ceased to hold office because of his death rather than for any other reason distinguishes this case, Lord Pannick submits, from Pinochet (No. 3).
- Although their Lordships in Pinochet (No. 3) were not addressing the scope of immunity of a head of state who has died in office, I do regard it as significant that none of the extensive authorities or material that were presented to their Lordships in the course of those proceedings prompted them to qualify the many references to 'former' heads of state or to heads of state who have ceased to hold office by adding some caveat or proviso relating to heads of state who die in office rather than who leave office in their lifetime. The question for me is whether the reasons why their Lordships held that Senator Pinochet's immunity extended only to immunity ratione materiae lead me to conclude that the case is authority for so limiting the immunity enjoyed by the estate of a serving head of state or whether instead there are reasons for concluding that the estate of a head of state enjoys whatever immunity he enjoyed the moment before his death.
- I note at this point that Lord Pannick accepted that it made no difference on his arguments whether sovereign title in the particular state passed by hereditary succession, by democratic election, by effluxion of time or other means. Thus on the Prince's case the estates of Abraham Lincoln and Franklin D Roosevelt would enjoy immunity ratione personae whereas the estates of Ronald Reagan and Harry S Truman would enjoy only immunity ratione materiae. Similarly and closer to home, the estate of King George VI would have complete immunity from suit whereas the estate of Edward VIII would enjoy only the more limited immunity. For legal purposes, it is accepted, those who leave office during their lifetimes become ordinary citizens and on their deaths their estates can claim no better treatment than they enjoyed the day before they died.
- The Prince's main argument was based on the functionality of the doctrine of state immunity as described by Lawrence Collins LJ in Aziz namely that the doctrine 'has a function in international relations to protect the ability of the head of state to carry out his functions and to promote international co-operation': see paragraph 61 of the judgment. The Prince also relies on Lord Millett's description of the justification for the doctrine in Pinochet (No. 3) where he said: (emphasis added)
"The immunity of a serving head of state is enjoyed by reason of his special status as the holder of his state's highest office. He is regarded as the personal embodiment of the state itself. It would be an affront to the dignity and sovereignty of the state which he personifies and a denial of the equality of sovereign states to subject him to the jurisdiction of the municipal courts of another state, whether in respect of his public acts or private affairs. His person is inviolable; he is not liable to be arrested or detained on any ground whatever. The head of a diplomatic mission represents his head of state and thus embodies the sending state in the territory of the receiving state. While he remains in office he is entitled to the same absolute immunity as his head of state in relation both to his public and private acts.
This immunity is not in issue in the present case. Senator Pinochet is not a serving head of state. If he were, he could not be extradited. It would be an intolerable affront to the Republic of Chile to arrest him or detain him."
Lord Pannick argues that it is as much an affront to the state to allow suits against the head of state after their death as it is to allow them before their death.
- In my judgment this submission is based on a misinterpretation of what it means to affront the dignity or sovereignty of a state as personified by the head of state and hence what it means to say that the doctrine's function is to avoid such affronts. This emerges most clearly from the judgments of the Court of Appeal in Aziz. Lawrence Collins LJ distinguished there between the right that a head of state has to be protected from attacks on his dignity on the one hand and the uniform practice of host states of extending courtesy or comity to a foreign head of state 'as a matter of diplomatic courtesy rather than as a recognition of a legal responsibility' on the other. Sir Franklin Berman QC appearing for the Sultan in that case had put forward a very broad definition of 'an attack on the dignity of a head of state'. He argued that this encompassed any deliberate act intended to lower the estimation of the head of state or to injure his honour or that of his office. Collins LJ held that a proposition of that breadth 'would be a wholly impermissible invasion of the principle of free speech': see paragraph 94. Sedley LJ agreed with Collins LJ in contrasting a legal entitlement to protection vested in the sovereign as an individual with the courts' 'salutary practice' of protecting any third party from the distress caused by damaging or embarrassing allegations being made about them in open court.
- Inherent in both the judgments in Aziz and in their Lordships' speeches in Pinochet (No. 3) is the principle that a state is to be regarded as intolerably affronted by a foreign court asserting jurisdiction over the private affairs of its head of state on one day and then not so affronted if that court asserts jurisdiction the next day, the head of state having stood down or been deposed in the interim. This is not because the high esteem and affection in which that head of state is held by his subjects instantly evaporates the moment he steps down from office but rather because their esteem and affection is nothing to the point. Similarly, the fact that a nation may revere the memory of a much loved head of state after his death does not of itself justify a continuation for the benefit of his estate of the complete immunity that the sovereign enjoyed during his lifetime. The immunity recognised by international law is accorded without distinction both to the much loved and to those regarded by some or all of their subjects as an arch-devil: Lord Browne-Wilkinson was at pains to emphasise this in Pinochet (No. 3) at page 190F.
- What is more to the point is the fact that, as Lord Millett said, the serving head of state is 'regarded as the personal embodiment of the state itself' whilst in office. It is that fact, rather than the merit of the individual concerned, which justifies the immunity and which generates the intolerable affront if the immunity is infringed. The notion of the head of state being the embodiment of the state as the underlying justification for state immunity (both for heads of state and for ambassadors) goes back to the earliest authorities. In Aziz Lawrence Collins LJ cited Vattel's The Law of Nations published in 1758 where it was said of a head of state: (emphasis added)
"S'il est venu en voyageur, sa dignité seule, et ce qui est dû à la nation qu'il représente et qu'il gouverne, le met à couvert de toute insulte, lui assure des respects et toute sorte d'égards, et l'exempte de toute juridiction.""
- Lord Esher MR said in the passage in The Parlement Belge quoted above that the doctrine is a result of the respect to the independence and dignity of every other sovereign state rather than to the independence and dignity of the particular holder of the office. This point is also reflected in the speech of Lord Browne-Wilkinson in Pinochet (No. 3) at page 201G where his Lordship says that the head of state is entitled to the same immunity as the state itself, and that this immunity, as with the immunity of the ambassador is 'in recognition of the dignity of the state which he represents'. That is why once the head of state is no longer representative of the foreign state he merits no particular privileges or immunities as a person, although his official acts are still protected from scrutiny in our courts.
- I do not accept that a sovereign who dies in office remains the embodiment of the state once deceased. On the contrary, a new head of state springs up, either instantly in the case of an hereditary monarchy or after due process in the case of an elected head of state (although most states will designate an interim head pending such an election). Again, this is nothing to do with whether the recently deceased head of state continues to hold a place in the hearts of the nation or is still regarded by his or her former subjects as an exemplar of all that is best about that nation's character. We are not talking about embodying the state in that sense but in a more technical sense. There is no room in this doctrine for two embodiments of the state to exist at the same time, one dead and one living.
- Lord Pannick submitted that Mrs Harb's contention that the right to bring a claim in the courts against an estate should be broader than the right to bring a claim against the person when living was entirely novel. One can think of many instances where a claim is extinguished by the death of the defendant – as indeed occurred here when the matrimonial proceedings lapsed on the death of King Fahd. To suggest that death creates a liability where there was none before, save in relation to inheritance matters, would be, he said, very novel indeed. There are two answers to that submission. The first is that we are not dealing here with a cause of action being created by the death of the serving head of state. State immunity presents only a procedural bar to the bringing of an action. Thus in Empson v Smith  1 QB 426, Diplock LJ said:
"It is elementary law that diplomatic immunity is not immunity from legal liability but immunity from suit … Statutes relating to diplomatic immunity from civil suit are procedural statutes."
- The cause of action against the head of state arises and subsists even where immunity ratione personae prevents the court from adjudicating on it. Mrs Harb's argument does not depend on King Fahd's death allowing a cause of action to arise where none existed before. Secondly, any attempt to draw analogies between the principles applicable in this very special area of the law and areas of the law which are more familiar is difficult and likely to lead one astray.
- Lord Pannick argued that there were practical difficulties with concluding that the death of a serving head of state strips him of his immunity rationae personae. He posed a situation where a head of state dies during a visit to this country. It would be a breach of immunity, he asserted, for this country to insist on carrying out an inquest into the death or to restrain the removal from the jurisdiction of jewellery on the head of state's person, for example to provide security against a claim brought in the courts. He referred in this regard to Article 39(2) of the Vienna Convention which deals with the brief continuation of diplomatic immunity after an ambassador ceases to hold office but before he leaves the receiving state. Article 39(3) goes on to deal with what happens on the death of an ambassador but does not expressly deal with the position of the ambassador himself only with the position of his family. Neither Article 39(2) or (3) prescribes the scope of immunity of the deceased ambassador himself. Further, Article 39(4) concerns the removal of the property of the ambassador or a member of his family. It recognises that immunity continues for a short period after death to allow the removal without tax of his property unless export of that property acquired in the host state is prohibited. Lord Pannick submitted that this shows that immunity ratione personae does not cease on the ambassador's death but continues thereafter. It would be extraordinary if the head of state was in a worse position than the ambassador.
- Mr Fitzgerald relies on Article 39(3) and (4) as supporting his argument to precisely the opposite effect. Those provisions are included to make clear that although generally speaking immunity ratione personae lasts only whilst the ambassador holds office, it is extended for a short period to allow the ambassador and his family to leave and to take their belongings with them, largely free of export charges and controls.
- On this point I consider that the scope of Article 39 supports Mrs Harb's case on the scope of immunity rather than Prince Abdul Aziz's. One cannot infer from the fact that Article 39(3) refers only to the members of the ambassador's family and not to the ambassador himself that the Vienna Convention assumes that the ambassador's estate continues to enjoy all privileges and immunities indefinitely. It is equally consistent with a position whereby his immunities and privileges cease on death and are therefore extended briefly to those of his family for what Mr Fitzgerald referred to as a 'penumbra or residual packing-up period'. As regards Article 39(4), it is difficult to see why this provision would be necessary if the Prince's case were right. If the ambassador's estate continues to enjoy full immunity ratione personae, there could be no question of levying estate, succession or inheritance duties on his estate. Moreover, there are two important exceptions in Article 39(4). First, the receiving state is entitled to prevent the removal of property that was acquired in the receiving state and which cannot lawfully be exported from that state and secondly it appears that estate, succession and inheritance duties may be levied on moveable property which is present in the receiving state for reasons other than because the deceased was the ambassador. Transposing article 39(4) to apply it to a head of state may give rise to one of the baffling legal problems to which Lord Browne-Wilkinson referred in Pinochet (No. 3). For present purposes it is enough to say that the detailed provision for the application of the receiving state's law to the property of the estate of the deceased ambassador supports Mrs Harb's contention that there is no continuing immunity ratione persoane enjoyed by that estate.
- As regards the holding of an inquest into the death of an ambassador or head of state in the receiving country, the parties referred me to a passage in Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations by Professor Denza (2008) at page 284. Professor Denza writes:
"A question which arises from time to time and is not answered with absolute clarity by the Convention is whether Article 31.1 of the Convention precludes the receiving State from holding an inquest following the death of a diplomat. The practice which had earlier developed in the United Kingdom was that an inquest was not held under these circumstances. In 1913 the Foreign Office Legal Adviser was reluctant to say that as a matter of international law: 'the death of a diplomat is in no circumstances a subject for inquisition by the coroner. In the case of the body of a diplomat being found in circumstances which indicate foul play it is obviously in the interests of justice that an inquiry should be held and evidence taken on oath.'12 Under Article 31.1 of the Convention, the holding of an inquest may be regarded as an exercise of civil or administrative jurisdiction over the person of the deceased diplomat. Although his functions have come to an end with his death, his immunities under article 39.2 of the Convention subsist for a 'reasonable period'. It is usual for a diplomatic mission to prefer that no inquest should take place, and it appears to be general practice that inquests or public inquiries into the death of diplomats do not take place unless the mission consents.
12 VII BDIL 809. Satow (5th edn 1979) para 15.17 gives the example of a suicide in the British Embassy at Madrid in 1921, where evidence taken in the embassy from the ambassador and some mission staff was drawn up in a proces-verbal. See also Lyons, 'Diplomatic Immunity: Some Minor Points', 1958 BYIL 373; Salmon ( 1994) para 402."
- The reference by the Foreign Office Legal Adviser cited in that passage to the 'interests of justice' seems incongruous since the whole debate here is how far those interests have to give way to wider interests of international comity. It appears from the passage that it is not clear whether the practice of states in refraining from conducting an inquest without the consent of the mission is one of legal responsibility or just a 'diplomatic courtesy' to adopt Lawrence Collins LJ's distinction. However, the Prince relies on this passage as well as on Article 39 as showing that it is not the case that immunity of the ambassador ceases immediately on death.
- It seems to me that if a head of state is, for example, deposed by a coup during a visit to the United Kingdom, and a new head of state is recognised by HM Government, section 20 of the SIA 1978 may well require the courts to recognise a reasonable period in which the former head of state may leave this country before his immunity ratione personae expires. If a quick-witted litigant were to issue and serve proceedings on such a former head of state before he can leave this country, the court would need to grapple with how to apply section 20 of the SIA 1978 and Article 39 of the Vienna Convention in that situation. That is not, however, the situation that has arisen here. It is not possible to interpret the obligation under section 20 of the SIA 1978 to apply Article 39 as an obligation to recognise an open ended immunity ratione personae for a head of state whether he dies in this country or in his own state. Such an interpretation would go far beyond 'the necessary modifications' that section 20 requires or entitles the court to make when transposing Article 39 to apply to a head of state. On the contrary, Article 39(2) refers to the functions of the ambassador having come to an end. Those functions come to an end on the ambassador's death and on transposing those provision to the position of a head of state pursuant to section 20, the functions performed by a head of state also stop being performed by him when he dies. I do not therefore accept that the proper transposition of Article 39 from the position of mission members to the position of a head of state indicates that the immunity ratione personae of the head of state continues indefinitely.
- Lawrence Collins LJ in Aziz referred to two functions of state immunity. The first is to protect the ability of the head of state to carry out his functions and the second is 'to promote international cooperation'. As to the first, the Prince argues that if a head of state fears that on his death his estate can be sued for private matters, that may hinder him carrying out his function whilst in office. That cannot be correct. It appears to cut across Prince Abdul Aziz's acceptance that the same principles apply regardless of how sovereignty passes under a state's constitution from one head of state to the next. It also appears to assume that a head of state has no opportunity to put his affairs in order before his death in office whereas he does have such an opportunity if he leaves office in his lifetime. That is not necessarily the case - in the instant case, King Fahd was seriously ill for a number of years before his death. The head of state's ability to carry out his functions in office is adequately protected, in my judgment, by his estate's continuing immunity ratione materiae after he dies or stands down. It does not justify continuing protection for his private acts.
- As to the promotion of international cooperation referred to in Aziz, Lord Pannick referred also to a passage in Lord Reid's speech in Rahimtoola v Nizam of Hyderabad  AC 379 where his Lordship said:
"The principle of sovereign immunity is not founded on any technical rules of law: it is founded on broad considerations of public policy, international law and comity."
- I do not accept that public policy, comity or the desirability of promoting international cooperation have resulted or should result in drawing a distinction between those heads of state who leave office on death and those who leave office in their lifetime. That comity is no more likely to be damaged by the courts entertaining a law suit against the representatives of the deceased sovereign's estate than a suit against the former sovereign himself.
- In my judgment therefore there are no grounds for distinguishing the principles set out in Pinochet (No. 3) on the basis that King Fahd ceased to be head of state of Saudi Arabia on his death rather than during his lifetime. The principle that a former head of state enjoys only immunity ratione materiae applies to the late King as it applies to any head of state who stands down from office during his lifetime. Further, there is no justification for treating the estate of a head of state who dies in office in a more favourable way than the living former head of state or the estate of such a former head of state who dies some time after leaving office. I regard myself as bound by the House of Lords' decision in Pinochet (No. 3) to dismiss the Prince's application.
- In the light of that conclusion I need deal only briefly with the argument put forward based on Article 6 of the European Convention on Human Rights. Prince Abdul Aziz argued that Article 6 has no role to play here because the European Court of Human Rights has recognised that for national courts to give effect to state immunity in accordance with international law is not a breach of Article 6. This was confirmed by that Court in the recent judgment in Applications 34356/06 and 40528/06 Jones and others v United Kingdom  ECHR 32 (14 January 2014) ('Jones'). In Jones the claimants sought damages from the Kingdom of Saudi Arabia and certain Saudi officials who they alleged had tortured them in Saudi territory. The House of Lords held that Saudi Arabia was entitled to claim immunity for itself and its servants and agents. The ECtHR found that there had been no breach of Article 6 of the Convention. The Court noted that the right of access to the courts guaranteed by Article 6 is not absolute and may be subject to limitations since the right of access by its very nature calls for regulation by the State: see paragraph 186. The Court went on to say: (citation of authorities omitted)
"188. The Court has previously explained that sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State. The grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State's sovereignty …
189. As to the proportionality of the restriction, the need to interpret the Convention so far as possible in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity, has led … the Court to conclude that measures taken by a State which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1. The Court explained that just as the right of access to court is an inherent part of the fair trial guarantee in Article 6 § 1, so some restrictions must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity …"
- The ECtHR then considered whether public international law had developed sufficiently since the earlier judgment in Application No 35763/97 Al-Adsani v United Kingdom (2002) 34 EHRR 11 (21 November 2001) as regards the existence of a torture exception to the doctrine of State immunity such as to warrant the conclusion that the grant of immunity in such a case would no longer reflect generally recognised rules of public international law. The Court referred to a number of cases in different national jurisdictions which had considered whether there was now a jus cogens exception to immunity. The Court held that the matter had been concluded by the International Court of Justice's judgment in Jurisdictional Immunities of the State (Germany v. Italy): Greece intervening) ICJ Reports 2012 p 99 (3 February 2012). The International Court had held in that case that no exception to State immunity had yet crystallised. The ECtHR concluded that customary international law meant that the House of Lords' application of the SIA 1978 to uphold the claim to immunity was not an unjustified restriction on the applicants' access to a court.
- I conclude from the ECtHR's judgment in Jones that once the relevant principles of international law have been established, the court need not carry out an additional step of considering whether the application of those principles is disproportionate when balanced against the right of access to the courts guaranteed by Article 6. In paragraph 201 of Jones the ECtHR said:
"201 Since measures which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court, the sole matter for consideration in respect of the applicants' complaint is whether the grant of immunity ratione materiae to the State officials reflected such rules."
- If I had been satisfied therefore that generally recognised rules of public international law conferred immunity on Prince Abdul Aziz in this case, it would not have been open to me nonetheless to lift that immunity on the grounds that I thought it was a disproportionate interference with Mrs Harb's Article 6 rights.
- Mr Fitzgerald emphasised that the ECtHR in Jones held that Article 6 gave way only to 'generally recognised' rules of public international law on State immunity. Mr Fitzgerald accepts that broadly speaking, the doctrine of state immunity is generally recognised and the subject of considerable case law. But he says that even if I were to find that there is an as yet undiscovered rule that the estate of a serving head of state continues to enjoy immunity ratione personae, its concealment hitherto means that it is not a 'generally recognised' rule. Lord Pannick said that was not the right way to look at it. The doctrine of State immunity is itself generally recognised in public international rule and that doctrine must contain a rule setting the nature of the immunity of the late King Fahd. The nature of that immunity is a matter of public international law and once it has been determined, Article 6 is either trumped by public international law rule or it is not - Article 6 really does not add anything of substance to the debate.
- On this point I consider that Lord Pannick's arguments must be right. One can pose the question this way: what would the ECtHR have done in Jones if it had not had the benefit of the recent judgment of the International Court in Germany v Italy giving it a clear answer as to the non-crystallisation of a jus cogens exception to state immunity for allegations of torture? I note that after referring to cases in United States, Canadian, Italian, Greek, Polish, French, Slovenian and United Kingdom courts as having considered whether there is a jus cogens exception, the ECtHR said:
"198. However it is not necessary for the Court to examine all of these developments in detail since the recent judgment of the International Court of Justice in Germany v. Italy … - which must be considered by this Court as authoritative as regards the content of customary international law - clearly establishes that, by February 2012, no jus cogens exception to State immunity had yet crystallised."
- I take that to mean that in the absence of Germany v. Italy, the ECtHR would have regarded it as necessary to examine all of those developments in detail in order to come to its own conclusion as to the current scope of immunity under international law. If it had concluded that a jus cogens exception had crystallised by January 2014 (or if there was some event since Germany v. Italy that clearly pointed in that direction) the Court would have been justified in departing from its earlier decision in Al-Adsani. I do not see that Article 6 ECHR would have been relevant to that debate.
- That does not mean, however, that the importance of access to the courts is irrelevant to the scope, as a matter of customary international law, of the immunity enjoyed by the estate of a head of state who dies in office. In Golder v United Kingdom  1 EHRR 524, the ECtHR was considering the proper interpretation of Article 6. The Court noted that the Vienna Convention on the Law of Treaties indicates that account is to be taken of any relevant rules of international law applicable in the relations between the parties when construing the provisions of a Treaty. The Court said:
"The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally 'recognised' fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice."
- I accept that that principle of international law creates, as it were, a default position in favour of Mrs Harb. Against that, there is certainly no settled case law requiring a departure from it and, as I have already discussed, I can see no argument of principle that would justify such a departure.
- In the light of my conclusions, I dismiss the Prince's application and hold that the Prince cannot rely on a defence of state immunity to defeat Mrs Harb's claim.
Note 1 The closest they have come is that Mr Fitzgerald QC drew my attention to a sentence from Satow’s Diplomatic Practice (6th edn by Sir Ivor Roberts) which contains under the heading ‘Immunity of a Former Head of State’ the sentence ‘His personal immunity ceases when a head of state is no longer, for whatever reason, in office’. [Back]
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