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The State of State Immunity

Latest PostThe State of State Immunity

 

November, 1879.  A 70-year-old veteran politician, who many thought finished, looked from a platform upon a crowd of agricultural workers and coal miners in Scotland’s central belt. William Ewart Gladstone declared, “you may sympathize with one nation more than another, but all are equal and you have no right to set up a system under which one of them is to be placed under moral suspicion or espionage, or to be made the constant subject of invective.”

By Jehad Mustafa, Barrister and Volterra Fietta lawyer

Today, it seems incredible that one of the great British Prime Ministers achieved his political comeback by giving speeches on international relations.  But Gladstone’s defence of the international order was a cornerstone of his groundbreaking “Midlothian Campaign”.  It was a success, and Gladstone’s Liberals won a landslide in the 1880 general election.

Gladstone’s speech was influential upon the founders of the League of Nations, among them US President Woodrow Wilson and Lord Robert Cecil.  And, in a world of fragmenting alliances and rising geopolitical tensions, perhaps it should be more influential on leaders of today.  What would Gladstone have made, for instance, of a recent series of cases decided by the English Courts eroding legal immunity afforded to both diplomatic Staff foreign States when faced with domestic civil claims?

First a point of clarification; State immunity should not be confused with State impunity. The former is a key pillar of public international law that has existed for centuries.  It ensures that States are treated appropriately by the domestic Courts of another State, thus ensuring the orderly conduct of international relations.  State impunity, on the other hand, is the notion that States can use their sovereign status to avoid accountability and consequences for their actions, no matter how egregious.

No sensible lawyer or government would support State impunity.  Actions have consequences, and it would be an anathema to proper notions of justice to suggest that this does not apply to States as well.  The issue is not whether States or diplomats should be held accountable for alleged wrongdoing.  The issue is what is the appropriate forum for assessing liability?  If all States are deemed to be equal among nations, what authority do the domestic Courts of one State have to assume jurisdiction over the acts of another? And what are the implications for the international system if diplomats are unable to fulfil their mission because they risk being brought before the courts of the host state?

Historically, England and Wales has not assumed jurisdiction through their courts over the sovereign, and sometimes non-sovereign, acts of another State.  The exceptions to this are relatively few and primarily concern certain acts of a private law nature.

Granting immunity can, in certain cases, lead to controversy.  For example, the United States’ courts recently held that they did not have jurisdiction to hear a claim against Russia for allegedly hacking emails of the DNC during the 2016 Presidential election.  The US Court made clear that the reason it did not accept jurisdiction had nothing to do with the substantive merits of the claims.  Instead, the judge emphasised that the forum was not appropriate, stating that “relief from the alleged activities of the Russian Federation should be sought from the political branches of the Government and not from the courts.”  In other words, redress can be obtained, but it must be obtained on a State-to-State level through diplomatic means or executive or legislative action.

Indeed, the US has frequently intervened in cases brought against foreign States in its domestic courts, including supporting immunity assertions by those States.  The reason why the US takes such a robust position in supporting immunity is simple but critically important to understanding international relations: reciprocity.  The US is aware that if its domestic courts were to accept jurisdiction over sovereign acts of other States, there is a significant risk that other States would so the same against the US, thus endangering US personnel and interests overseas.

These principles are well established public international law and underpin several important multilateral State immunity treaties to which the UK is a signatory.  In that context, it is perhaps surprising that the English courts have recently become increasingly active in re-evaluating immunity protections in the UK.

The change in approach to State immunity by the English Courts

The English Courts, in recent years, appear to have narrowed the scope of immunities granted to States and diplomatic personnel, demonstrating a willingness to take jurisdiction in cases involving private acts of diplomats (for example in divorce proceedings in), and even certain sovereign acts of States.

In an important recent article, Lord Mance highlighted that, of late, “[t]here has been a growing willingness on the part of courts in the United Kingdom to address and investigate the conduct of foreign States and issues of public international law when appropriate.”

A prime example of this was the 2022 Supreme Court ruling in Basfar v Wong. The court held by a split decision that a diplomat was not immune from claims alleging mistreatment of domestic staff at diplomatic premises on the basis that the alleged treatment amounted to “commercial” acts.  The consensus among public international law practitioners is that this was a highly novel interpretation one of the most sacrosanct of all treaties, the 1961 Vienna Convention on Diplomatic Relations.

In practice, this will likely cause an increase in cases being brought against States and diplomats.  The implications of this are important and should be considered.  Firstly, for States with links or operations in the UK, there is a clear danger that they will risk action before the courts in a way that would not happen in, for example, the USA or France.  This means risks for diplomatic staff and frustration for embassies who will have to devote more resource to defending substantive claims.

For the UK the risks should also be considered.  London’s preeminent position for both business and as a hub for the international diplomatic community might be affected.  Diplomats may no longer see a post in London as the prized role it currently is.  But worse, the UK may start to see other States allowing claims against the UK and its nationals overseas on a reciprocal basis.  And when a UK national tries to legitimately assert immunity it may be that an English court’s judgment will be shown to them as the basis for which their immunity assertion is denied.

It may be that the change of position in the English courts will make the task of UK Diplomats abroad more difficult. If our diplomats are not afforded the full protections of the Vienna Convention they may find it more difficult to raise challenging issues, such as human rights when abroad.  This is not in anyone’s interests.

Jehad Mustafa, Barrister and Volterra Fietta lawyer

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