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Home Articles posted by Philippa Webb

The Limits of Diplomatic Immunity in the Age of Human Trafficking: The Supreme Court in Reyes v Al-Malki

Published on October 23, 2017        Author: 

Disclaimer: The author was counsel to the Intervener, Kalayaan, a charity that supports migrant domestic workers, some of whom have been trafficked. This post is written in the author’s personal academic capacity and does not necessarily represent the views of her client.

Last week the UK Supreme Court delivered judgments in two landmark cases on immunity. This post examines the Judgment in Reyes v Al-Malki on diplomatic immunity.

There is much of interest in the Reyes Judgment – the relationship between State and diplomatic immunities, approaches to treaty interpretation (including temporal dimensions), the appeal by Lord Wilson to the International Law Commission to take this issue forward (para 68), and the Court allowing a diplomat to be served by post to their private residence (para 16). I will focus on the approach to diplomatic immunity in the context of human trafficking.

The Court decided that Mr and Mrs Al-Malki, a former member of the diplomatic staff of the Saudi embassy in London and his wife, are not entitled to immunity from the claim brought against them by Ms Reyes, a Philippine national who was their domestic servant for two months in 2011. The appeal proceeded on the basis of assumed facts. Ms Reyes alleges that she had entered the UK with a contract showing that she would be paid £500 per month by Mr Al-Malki. Instead, she says she was paid nothing. She alleges she was made to work excessive hours, had her passport confiscated, did not have proper accommodation, and was prevented from leaving the house or communicating with others (para 1). She eventually escaped.

UK Visas and Immigration had found that there were reasonable grounds for concluding that Ms Reyes was a victim of human trafficking.

The Supreme Court decided on the basis of Article 39(2) of the Vienna Convention on Diplomatic Relations, which sets out the residual immunity enjoyed by diplomats who are no longer in post:

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. (emphasis added)

The Judges unanimously held that the employment and maltreatment of Ms Reyes were not acts performed by Mr Al-Malki ‘in the exercise of his functions as a member of the mission’ and he was therefore not immune.

Another provision of the Vienna Convention – Article 31(1)(c) – had formed the centrepiece of the parties’ arguments in the Court of Appeal and the Supreme Court. It sets out an exception to immunity for diplomats who are currently in post:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of : 

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. (emphasis added)

Lord Sumption wrote the lead Opinion (with which Lord Neuberger agreed), disposing of the case on the basis of Article 39(2), but also analysing Article 31(1)(c) in depth. Lord Wilson agreed with Lord Sumption’s analysis of Article 39(2), but expressed ‘doubts’ regarding his interpretation of Article 31(1)(c), with Lady Hale and Lord Clarke sharing these ‘doubts’.

We thus have a straightforward, unanimous decision on the basis of Article 39(2) applicable to former diplomats, but we also have a split within the Court on the interpretation of Article 31(1)(c), with obiter ‘doubts’ on obiter reasoning. Read the rest of this entry…

 

A Diplomat in Name Only? Judicial Scrutiny of Diplomatic Appointments

Published on February 22, 2016        Author: 

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 [2016] 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 [2016] 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.  Read the rest of this entry…

 

Jones v UK: The re-integration of State and official immunity?

Published on January 14, 2014        Author: 

Philippa Webb is Lecturer in Public International Law at King’s College London. She is the co-author, with Lady Hazel Fox QC, of the third edition of The Law of State Immunity (OUP 2013).

As regards the immunity of the State, the 6-1 decision in Jones and Others v the United Kingdom to uphold the immunity of Saudi Arabia was to be expected: in the Jurisdictional Immunities Judgment, the principal judicial organ of the UN clearly stated that that there was no exception to State immunity for jus cogens violations. The Fourth Section of the ECtHR felt no need to examine national developments in detail as the ICJ Judgment must be considered as ‘authoritative as regards the content of customary international law’ (para 198).

The razor-thin majority of the Grand Chamber in Al-Adsani 13 years ago has now been buttressed by both the ICJ and the Fourth Section of the ECtHR.

But the decision in Jones to uphold the immunity of the State officials even in the face of allegations of torture is more surprising. It stretches the meaning of the ICJ Jurisdictional Immunities Judgment and goes against two emerging trends: (1) accountability of non-high ranking State officials for serious human rights violations; (2) the diversification of various forms of immunity. Let me take these issues in turn.

Accountability of State officials for torture

As the ECtHR Chamber acknowledges (para 92), the ICJ emphasised in the Jurisdictional Immunities Judgment that it was addressing ‘only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether and to what extent immunity might apply in criminal proceedings against an official of the State is not in issue in the present case’ (para 91 of the ICJ Judgment). Yet, the ECtHR followed the ICJ’s Judgment with respect to the immunity of State officials as well as that of the State. In its 2012 Judgment, the ICJ had been silent as to immunity of a State official from civil proceedings, but it was clear that the Judgment was focused on the State itself and arguably even limited to ‘acts committed on the territory of the forum State by the armed forces of a foreign State … in the course of conducting an armed conflict’ (para 65). Read the rest of this entry…