Diplomatic Immunity Trumps Children’s Rights, the English High Court Reluctantly Concludes: A Comment on A Local Authority v AG [2020] EWFC 18

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This case concerned proceedings brought by a local authority to protect three children, specifically seeking a care order under Part IV of the Children Act 1989. There were credible allegations that the children had been physically abused by both their parents. On the evidence before him, Mostyn J thought it ‘extremely unlikely’ that the parents ‘would be able to defeat an application for an interim care order’, were he to determine that issue.

The children’s father, however, was (and, quite possibly, still is) a serving diplomat at his State’s mission in London, and on that basis the parents resisted the Court making any order. Consequently, as Mostyn J stated:

This case gives rise to a seemingly irreconcilable clash between two international treaties incorporated into our domestic law by statutes. These are the 1961 Vienna Convention on Diplomatic Relations, enacted by the Diplomatic Privileges Act 1964, and the 1953 European Convention on Human Rights, enacted by the Human Rights Act 1998.

Under Article 31(1) of the 1961 Vienna Convention on Diplomatic Relations (‘the VCDR’), a diplomatic agent enjoys immunity from the receiving State’s ‘civil and administrative jurisdiction’ except in certain specified cases. Article 37(1) of the VCDR goes onto to say that ‘[t]he members of the family of a diplomatic agent forming part of his household shall… enjoy the privileges and immunities specified in articles 29 to 36’. Article 32 makes clear that the immunity belongs not to the individuals but to their State and may only be waived by the State expressly. The 1964 Diplomatic Privileges Act incorporates, inter alia, Articles 31, 32 and 37 of the VCDR into English law.

It was accepted that none of the specified exceptions to immunity in Article 31(1) applied and that immunity under Articles 31 and 37 could be waived only by the sending State, which had not done so. The Local Authority and the children’s Guardian, however, argued that pursuant to s. 3 of the 1998 Human Rights Act (‘the HRA’), the provisions should be interpreted ‘to “read in” another exception, namely a public law application to protect children or vulnerable adults at risk within the diplomat’s family forming part of his household.’

3(1) of the HRA provides that: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. The ‘Convention rights’ include the prohibition of ill-treatment contained in Article 3 of the 1950 European Convention on Human Rights (‘the ECHR’). As the then-President of the Family Division, Dame Elizabeth Butler-Sloss, said in Re B (A Child) (Care Proceedings: Diplomatic Immunity): ‘It is clear that there are positive obligations upon states to investigate alleged article 3 violations and to take steps to protect against such violations.’ This is in accordance with the Strasbourg case law and reads Article 3 in the light of Article 19(1) of the 1989 Convention on the Rights of the Child (‘the CRC’).

Mostyn J, however, following the reasons given by Lord Sumption in Reyes v Al-Malki, did not think he could interpret Article 31(1) of the VCDR in such a manner. First, such an interpretation would violate the provision’s plain meaning. Second, a unilateral interpretation would be wrong because the Convention must mean the same thing to all State parties to the treaty. Third, as the basis of the Convention is reciprocity, such an interpretation might be applied to the detriment of UK diplomats. Mostyn J speculated that:

If a tacit exception based on safeguarding the children of diplomats were to be excavated it would not be difficult to imagine another state, a theocracy for example, claiming that the teenage children of British diplomats were at risk because their parents allowed them to drink alcohol or to dress immodestly.

Finally, abuses of diplomatic immunity are unfortunate but they are a price worth paying to promote peaceful relations between States.

Consequently, Mostyn J was ‘regretfully driven to conclude’ that diplomatic immunity applied and the proceedings stayed. As a matter of national law, he might be right, although one would be surprised were his judgment not appealed. But was he correct under international law?

In its judgment in the Tehran Hostages Case, the International Court of Court saw the regime of legal consequences contained in the VCDR as self-contained and ‘entirely efficacious’ to counter abuse of diplomatic privileges by members of a diplomatic mission. Plainly, diplomats (and their spouses) are obliged to comply with local child protection laws, given that Article 41(1) of the VCDR provides that it is ‘the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State’. Mostyn J stated that ‘[t]he fact that proceedings cannot take place does not mean that there is nothing that the organs of the British state can do to discharge its duty under articles 1 and 3 of the European Convention on Human Rights.’ The Local Authority could write to the Foreign Office asking it to take action. The Foreign Secretary could seek to persuade the sending State to waive immunity. As a last resort, the offending diplomat could be declared persona non grata so he and his family would have to return to their homeland where measures to protect the children could be taken.

One might be sceptical about the efficacy of such actions. Given the sending State’s lackadaisical attitude to the proceedings, one might doubt whether it would waive immunity. Given its national legislation on the corporal punishment of children, one can also doubt whether returning the family home would see any improvement in the children’s lot. In other circumstances, it is difficult to see how such outcomes would be viewed as satisfying the requirements of Article 3, taken together with Article 13 (the right to an effective remedy), of the ECHR, nor, indeed, the UK’s obligations under Article 19 of the CRC.

But now things get difficult. There are two obvious international law arguments for saying that diplomatic immunity trumps children’s rights in this situation. The first is to say that, following the International Court of Justice’s judgment in the Jurisdictional Immunities Case, there is no norm conflict because the law of immunities is procedural in nature.

The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful.

To argue in this fashion in this case seems, however, to miss the point. The human rights argument is that the State must exercise its jurisdiction in order to fulfil its international obligations. This is made clear in Article 19(1) of the CRC, which provides that:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

In other words, the State is under a positive obligation. It must exercise its jurisdiction (and Mostyn J, rightly, accepted that the children were within the UK’s jurisdiction for the purpose of Article 1 of the ECHR) to take measures to protect children from abuse amounting to ill-treatment for the purposes of Article 3 of the ECHR.

For the same reason, the situation is not analogous to that in Jones v United Kingdom. In Jones, the European Court of Human Rights held that refusing to allow a civil claim seeking compensation for torture against a foreign State and its agents did not violate the UK’s obligations under Article 6 (the right to a fair trial) of the ECHR. But Article 6 differs from Article 3 in that it is a qualified right. By contrast, on numerous occasions the European Court of Human Rights has stated that the prohibition in Article 3 is absolute and, in particular, does not allow for the weighing of an individual’s rights against community interests.

This leads onto the second argument, which is only relevant if it is admitted there is a prima facie conflict of norms that cannot otherwise be avoided. It is that diplomatic law is lex specialis or (which amounts to much the same thing) that it forms a self-contained or special regime, and therefore excludes the application of State’s human rights obligations. On this basis, it is not obvious that the customary nature of the rules reproduced in the VCDR takes matters any further. ‘Speciality’ can only be as regards subject matter, and the customary and treaty rules on diplomatic privileges and immunities have the same content. However, as the report of the International Law Commission study group on fragmentation of international law points out, ‘the criterion of the “same subject-matter” as a condition for applying a conflict rule is too unspecific to be useful’. One might as well as well argue that the ECHR establishes a special regime.

At one point in his judgment, Mostyn J remarked that the VCDR postdates the ECHR. But the CRC postdates the VCDR, so it is lex posterior. On this analysis, one might wish to rely on the rules on treaty-conflict set out in the Vienna Convention on the Law of Treaties (‘the VCLT’). Article 30 of the VCLT covers treaties relating to ‘the same subject matter’, which phrase the report of the ILC study group recommended should not be viewed formalistically but rather as covering situations where the provisions of two treaties both apply. The CRC is a later treaty the parties to which do not include all the parties to the earlier one (as the USA is a party to the VCDR but not the CRC). There is no provision in either treaty specifying that it is subject to or is not to be considered as incompatible with the other. Applying Article 30 to the situation here, therefore, ‘the earlier treaty [the VCDR] applies only to the extent that its provisions are compatible with those of the later treaty [the CRC].’

A rejoinder to that argument would be that the parties to the CRC can never have intended its provisions to detract from the law of diplomatic immunity. Most likely, they negotiators never put their mind to the matter. But, had an officious bystander asked them, they might have replied that it was not their intention to do so. Which might be thought to mean a return to the lex specialis argument.

A better approach, however, might be to invert the lex specialis argument and to see the customary status of the rules on diplomatic immunity as very relevant. The ECHR and the CRC, from this perspective, are lex specialis or, at best, establish special regimes, but the rules on diplomatic immunity are part of general international law. Discussing the applicability of the rule on the exhaustion of domestic remedies in the ELSI case, a chamber of the International Court of Justice found ‘itself unable to accept that an important principle of customary international law could be held to have been tacitly dispensed with, in the absence of any words making clear the intention to do so.’ As the ILC study group report stated: ‘It is in the nature of “general law to apply generally” – namely inasmuch as it has not been specifically excluded.’ And the report specifically mentions the rules on the privileges and immunities of diplomats as forming part of general international law.

What the ILC study group’s report does not do, however, is provide authority on the point additional to the ELSI judgment, persuasive through the argument may be insofar as it sees international law as an integrated system. Moreover, the rule does not appear wholly apt to cover situations such as the instant one, where there is a conflict in terms between a treaty norm and a norm of general international law. Even in the absence of a specific derogation, having the norm of general international law exclude application of the treaty norm would seem to imply a hierarchy of norms. Claiming that what is happening is simply interpretation seems somewhat disingenuous.

It can thus be seen that international law provides various ways to address the relationship between diplomatic privileges and immunities and States’ human rights obligations, but none provides a definitive answer. This takes us back to the case itself. Under s. 4 of the HRA, if a court is satisfied that a provision of primary legislative is incompatible with a Convention right, it may make a declaration of incompatibility. Such declaration has no effect on the validity, continuing operation or enforcement of the provision, nor does it bind the parties to the proceedings in which it is made, but it does publicly put the onus on the Government to decide whether that incompatibility should be removed.

Mostyn J concluded his judgment by stating that:

[I]nasmuch as articles 31 and 37 of the [Vienna] Convention prevent protective measures being taken in respect of the children of diplomats who are at risk then they are irreconcilable, and therefore incompatible, with the duties imposed on the state under articles 1 and 3 of the European Convention on Human Rights.

However, he did not make a declaration of incompatibility because the Local Authority (understandably) had not sought one. Had one been sought, however, the Government would no doubt have joined the proceedings. And having done so, it would have had to argue its view of what international law requires, because it is only by interpreting the ECHR in a way that avoids a conflict with the provisions of the VCDR that the provisions of the Diplomatic Privileges Act can be held compatible with Article 3 of the ECHR. As things are, one must wait for any appeal.

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Comments

Anton Moiseienko says

April 8, 2020

Thanks, very interesting. Following on from your final observations, I was wondering why it is, in your view, that the Local Authority did not seek a declaration of incompatibility? Mostyn J says in the judgment that the declaration would have only had symbolic impact as the UK could not unilaterally alter the terms of the VCLT. But the real question is whether the UK should, in circumstances like this, prioritise ECHR compliance over the VCLT, and I wonder if a declaration of incompatibility could have prompted Parliament to consider the matter.

Matthew Happold says

April 12, 2020

Obviously, I can only speculate. But there seems to me no reason why ethe Local Authority would have wanted the Court to make a declaration of incompatibility. The LA could only win by persuading the Court that there no incompatibility, so that the Diplomatic Privileges Act, interpreted in the light of Article of the ECHR, did not prevent the Court exercising its jurisdiction to make an care order.

Martin N says

May 5, 2020

Thanks for this very interesting discussion. Can I please check, though, why you think it is clear that Mostyn J 'rightly' concluded that the children are in the jurisdiction for Article 1 purposes? You link Al=Adsani, but that case shows that torture happening outside the jurisdiction (there, in Kuwait) is outside the ambit of Article 1. It doesn't seem to discuss cases where there might not be jurisdiction within the bounds of the ECHR signatory.

By contrast, however, we know that Article 1 jurisdiction, even though 'essentially territorial', applies in certain circumstances to the acts of diplomatic and consular authorities abroad (see Al-Skeini para 134), and (per the British courts in Al-Skeini) similarly to aircraft and ships flagged to the Convention state. If Article 1 jurisdiction expands beyond territorial limits to recognise areas where the state has extra-territorial authority by virtue of either its de jure or de facto control (as in Al-Skeini itself), why might not Article 1 jurisdiction similarly reduce from territorial application in cases where, for well-understood rules of international law of long standing, territory and jurisdiction are not the same? After all, whilst jurisdiction is 'essentially' territorial, the word chosen was 'jurisdiction' and not 'territory'; and acts of consular and embassy officials are well known as being one of the cases where those two words do not mean the same thing.