The English High Court has delivered two important Judgments on diplomatic immunity this month. Both cases concern the entitlement to immunity of a person claiming to be a diplomat. They reached opposite conclusions as to how far a court may inquire into whether a person is in fact acting as a diplomatic agent.
On 8 February 2016, Mr Justice Hayden in Estrada v Al-Juffali  EWHC 213 (Fam) adopted (para 36) a functional test: has the person “in any real sense” taken up his appointment and discharged any responsibilities in connection with it? One week later, Mr Justice Blake in Al Attiya v Bin-Jassim Bin-Jaber Al Thani  EWHC 212 (QB) rejected the functional test (para 73) and took (paras 37(i), 74-5) a formal approach: A person should be treated as a diplomatic agent if there is evidence that he has been appointed as such and that appointment has been communicated to and accepted by the FCO.
Facts: Diplomats in Name Only?
Colourful, if not scandalous, facts underpin each case.
In Estrada v Al-Juffali  EWHC 213 (Fam) the Respondent is an extremely wealthy Saudi citizen who married the Applicant, a former model, in 2001. They have one child together. After 12 years of marriage, the Applicant issued divorce proceedings, alleging adultery by the Respondent. The Respondent has since remarried and had another child with his new wife. The Respondent was then appointed Permanent Representative of St. Lucia to the International Maritime Organization (IMO), a UN specialized agency responsible for the safety and security of shipping and the prevention of marine pollution by ships. It is headquartered in London. The Respondent applied to strike out the Applicant’s claim on the basis of his diplomatic immunity.
Several facts indicate that this appointment was solely intended to defeat the Respondent’s claims in the English court (para 35). There is no evidence that the Respondent had any knowledge or expertise of maritime matters. The appointment came 8 months after the issuance of the divorce proceedings and coincided with the “emergent relationship” with his new wife. The Respondent has pledged significant resources towards the local health sector in St Lucia. Moreover, since he was appointed Permanent Representative, the Respondent has not undertaken any duties of any kind related to his IMO role.
In Al Attiya v Bin-Jassim Bin-Jaber Al Thani  EWHC 212 (QB), the Defendant is member of a prominent Qatari family who served as Minister of Foreign Affairs (1992-2013) and Prime Minister (2007-2013). He is one of the richest people in the world, with his wealth estimated at £7.8 billion. In June 2013 he resigned as Foreign Minister and Prime Minister. On 28 August 2013, Qatar notified the FCO that the Defendant was appointed as Minister Counsellor at the Embassy of Qatar in London. The Claimant, a dual UK-Qatari national, is related to the ruling family of Qatar. He has brought a claim for damages for trespass to his land and to his person. He alleges, inter alia, that the Defendant confiscated his land in 2003 and had him detained and tortured in Qatar from October 2009 to January 2011.
Once again, several facts suggest that the diplomatic appointment is intended to protect the Defendant from litigation and that he is not actually performing diplomatic functions. The Defendant has publicly stated that he is a private person who no longer represents the interests of Qatar. His social media pages and other sources indicate that since November 2013, he has been on a large number of personal holidays outside of the UK (para 66). His focus has been on acquiring a portfolio of UK assets of “unimaginable value” (para 69). There is indeed no evidence of him performing diplomatic functions in the 26 months since he was appointed to the London Embassy (para 70).
Limited Options for Challenging Diplomatic Appointments
The appointment of a diplomatic representative (to a State or an international organization) is a sovereign act based on the network of reciprocal relations that underpin diplomatic law. As the Court of Appeal observed in Reyes v Al-Malki, courts are generally reluctant to set aside diplomatic immunity, given the belief that “diplomatic immunity not only ensures the efficient functioning of diplomatic missions in foreign states, but fosters good will and enhances relations among nations” (para 77, quoting Tabion v Mufti).
Once a person is appointed, there are few options for removing him or her. The sending State may waive immunity because it is impeding the course of justice. In Estrada, St. Lucia refused to waive immunity, despite a formal request from the FCO. In the Al Attiya case, the FCO did not request waiver (Indeed, Mr Justice Blake found that Qatar was impleaded and the claim was also barred by State immunity, para 29).
Alternatively, the receiving State (the UK) may declare someone persona non grata because the appointment was an abuse of process (there is a provision for this in the procedures agreed between the UK and the IMO). This is, however, a fairly extreme measure that could have repercussions for UK diplomats overseas.
The Vienna Convention on Diplomatic Relations provides for three narrow exceptions to diplomatic immunity in Article 31: “a real action relating to private immovable property” in the territory; succession; “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions”. The “real action” exception was considered in Estrada and found not to be applicable to the claims. None of the exceptions was invoked in Al Attiya.
The Functional Approach in Estrada: Judicial scrutiny of the “empty husk”
In Estrada, Mr Justice Hayden found a way to challenge the Respondent’s enjoyment of diplomatic immunity – by adopting a functional approach and holding the diplomatic post in question to be “a mere empty husk” (para 40).
He relied on Article 39(1) of the VCDR, which provides:
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. (emphasis added)
The Applicant argued that the Respondent was never “en poste” at any stage. Moreover, there would be a violation of Article 6 ECHR if the court upheld immunity in a case where a person holds diplomatic title and is not in fact performing any diplomatic functions (para 19).
Mr Justice Hayden accepted the argument that Article 39 VCDR imposed a substantive requirement on the fulfillment of diplomatic functions. He held that the Respondent “ha[d] not, in any real sense, taken up his appointment, nor ha[d] he discharged any responsibilities in connection with it. It is an entirely artificial construct” (para 36).
He cited Reyes v Al-Malki where the court held that the compatibility of diplomatic immunity with the right of access to court involves a balancing test (para 32, 40). Here, diplomatic immunity could not outweigh Article 6 rights because no weight was to be given to the “mere empty husk” of a spurious assertion of such immunity.
The balancing test was easy in this case because the Respondent in Estrada had not even made a cursory attempt to fulfill his role as Permanent Representative to the IMO. No diplomatic functions had been discharged. The balancing test is more difficult where the diplomatic appointment does have some substance to it, but there is evidence of serious abuse, as in the Reyes case where the diplomat was implicated in human trafficking and mistreatment of domestic servants.
Mr Justice Blake in Al Attiya declined to get to the point of applying the balancing test (see next section). If he had applied it, several facts render the diplomatic appointment more plausible in that case: the Defendant is of the same nationality as the sending State of Qatar; he has substantial experience in public office, not least as Foreign Minister; his extensive business interests make him well qualified to undertake the diplomatic function of improving economic cooperation between states (para 65). On the other hand, there is also evidence that for 26 months he travelled around the world for personal pleasure and private business rather than exercising any diplomatic functions (para 70). Nonetheless, the diplomatic appointment of the Defendant in Al Attiya may be more than an “empty husk”, especially if he starts spending time on UK-Qatar economic cooperation matters.
The Formal Approach in Al Attiya: Deference to Sending and Receiving States
Mr Justice Blake in Al Attiya admitted that a case for the functional approach could be made by reference to the object and purpose of the VCDR, US State practice and “a few observations in the case law” (para 73). But he concluded that it was not the test to be applied in that case. For him, the critical fact was that the FCO had issued a certificate under s 4 of the Diplomatic Privileges Act stating that the Defendant’s appointment as a member of the diplomatic staff had been notified to the FCO (para 9). The FCO had accepted his accreditation and that was to be regarded “as good evidence of the fact of membership of diplomatic staff”(para 74). Mr Justice Blake explained his concern with challenging that FCO action (para 75):
There would be real difficulties and uncertainties if the court were to undertake the [functional] inquiry […]. The sending state is not obliged to provide evidence and the nature of any exchange in which the person concerned may have engaged might well be something that both states would prefer not to disclose. A functional inquiry may well result in information not known to the FCO being examined and opens the door to the real possibility that conflicting factual findings are made between the court and the FCO, with the result that the one voice principle is undermined.
Interestingly, a s 4 certificate had also been issued in the Estrada case, but Mr Justice Hayden felt able – on the basis of Article 39 VCDR – to inquire beyond what the FCO stated as bald fact.
Due Diligence by the Host/Receiving State?
If the FCO’s accreditation is potentially so influential (especially under the formal approach), does it need to conform to a certain standard?
I do query one aspect of the Estrada Judgment in this regard. Mr Justice Hayden states that:
It is implicit in the analysis of the law presented by counsel that a ‘host government’ does not and is not required to carry out ‘strict scrutiny and due diligence’ on an ambassadorial appointment to an international organization located in London’. (para 35(i)).
As I have said elsewhere, I believe the FCO does have a duty of due diligence regarding such appointments.
First, the VCDR indicates that host States may pay special attention to the appointment by States of non-nationals to diplomatic posts. Article 8(2) and (3) provides:
Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
Second, and more specifically, the procedure for appointing a Permanent Representative to the IMO is actually quite stringent. Article 13 bis (4) of the Headquarters Agreement between the UK and IMO provides:
The Government shall be notified by the Secretary-General, in accordance with the procedure established by the Council, of the appointment of a Permanent Representative or an acting Permanent Representative and of each member of the mission […]. (emphasis added)
That procedure was established in IMO Resolution A.908(22), Annex 3 (Revised Procedure For the Accreditation to IMO of Permanent Representatives And Members Of The Permanent Missions of Member Governments), Article 2:
For the accreditation of a Permanent Representative to IMO the Member Government concerned shall make known in writing to the Secretary-General the name and rank of the person designated for that purpose.
(a) Where a Member Government wishes to accredit as Permanent Representative a person who is not already or will not be accredited to the Government of the United Kingdom, it shall inform the Secretary-General of the name and rank of such person before accreditation. The Secretary-General shall also be informed if the person nominated is a British citizen, British Dependent Territories citizen, British Overseas citizen, or British National (Overseas) or permanently resident in the United Kingdom.
(b) The Secretary-General shall inform the Government of the United Kingdom of the nomination and the Government may express its views thereon to the Secretary-General.
(c) Where the Government of the United Kingdom raises an objection to a person so nominated, consultations shall take place between the Secretary-General and the Government of the United Kingdom. (emphasis added)
The UK Government could have expressed its view to the IMO Secretary-General on the appointment of the Respondent – a non-national with no experience as either a diplomat or a maritime affairs expert – as IMO Permanent Representative for St. Lucia. It could even have raised an objection. Given the difficulties with setting aside diplomatic immunity once a person is “en poste”, it is vital that such due diligence is undertaken at the appointment stage.
Third, FCO evidence given the Foreign Affairs Committee in 1984 (cited in Al Attiya, paras 54-55) shows that the FCO may refuse to grant the visa in cases where the nominated person is “regarded as unacceptable” or may try informally to persuade the sending state to withdraw the nomination where the appointee is clearly “not carrying out the function of the mission” as described in the VCDR. Of course, these deficiencies may not always be apparent on the notification form. However, in some cases there may be enough red flags to trigger informal inquiries of the sending State.
One distinguishing feature of the Estrada and Al Attiya cases is that in the former case the FCO had the clear opportunity to express its view to the IMO Secretary-General, with the ‘red flag’ of an unqualified non-national being put forward for the role. In the latter case, the FCO only had the opportunity to refuse to grant a visa on the basis of whatever information was in the notification form provided by Qatar. Any red flags may well have been swept aside by the fact that the person in question was the former Foreign Minister of Qatar who was eminently well qualified to work on economic cooperation between the UK and Qatar.
The freedom of appointment granted to sending States under Article 7 VCDR encompasses the identity of the appointee, their rank, instructions as to their activity and the degree of time spent on it (Al Attiya, para 78). Courts in receiving States have no role in judging lazy or incompetent diplomats. But what if the person is a diplomat in name only?
Estrada v Al-Juffali  EWHC 213 develops Article 39 VCDR as a gateway to a functional approach for limiting diplomatic immunity. Until now, the usual ways to overcome diplomatic immunity were waiver, declaring persona non grata or fitting the facts into one of the narrow exceptions in Article 31 VCDR. This Judgment holds that if a person is not in fact exercising diplomatic functions, then he or she is not “en poste” and the bar of immunity cannot be justified in the face of another person’s right of access to court.
Al Attiya v Bin-Jassim Bin-Jaber Al Thani  EWHC 212 (QB) adopts a formal approach whereby the court defers to the processes of notification and accreditation undertaken by the sending State and the FCO. It warns of the potential embarrassment or conflict that would be created by a functional inquiry into what a claimed diplomat is actually doing with his or her time.
In my view, there is no embarrassment or conflict if the person is not actually performing a diplomatic function. A functional approach that examines whether a person is actually “en poste” (as compared to a detailed inquiry into the precise nature and extent of sovereign activities performed by that person) is reasonable. This level of judicial scrutiny poses no threat and is compatible with the object and purpose of diplomatic privileges and immunities, which “is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States” (VCDR, preamble).
The Respondent in Estrada has said he will appeal the Judgment. The Claimant in Al Attiya has said the same thing. It is hoped that the Court of Appeal will consider the cases together and provide clear guidance on judicial scrutiny of diplomatic appointments. In any event, future controversies could be avoided by the FCO’s exercise of due diligence at the appointment stage.