Appeal Court acts to protect immunity
Christopher Braganza, Partner at law firm Sheridans, reports on welcome respite from the Court of Appeal in an increasingly challenging legal environment for diplomatic missions
It was always going to be irresistible to the media: a reclusive billionaire, his supermodel wife and the supposedly mysterious world of diplomacy. But the legal arguments are as important as the headlines.
What is the Estrada case about?
The story begins in April 2014 with the appointment of Dr Walid Al-Juffali, a Saudi national, as permanent representative of St. Lucia to the IMO.
Dr Al-Juffali then resisted (on grounds of his immunity) subsequent divorce proceedings brought by his wife, Caroline Estrada. However, under the relevant IMO international agreements, if IMO representatives are permanently resident in the host state, they only have immunity in respect of their official acts. In February 2016, the High Court in London ruled that Dr Al-Juffali was indeed permanently resident in the UK and that divorce proceedings in no way related to his official acts. Accordingly, the High Court said that the case could proceed.
This much was not controversial.
However, the second and highly surprising part of the High Court’s decision was that, despite a certificate confirming his accreditation from the FCO, Dr Al-Juffali did not have immunity at all (even in respect of official acts) because (the Court considered) his appointment was “entirely artificial”. Put another way, the Court considered that it was allowed to go behind the FCO’s certificate and, effectively, say that Dr Al-Juffali was not a proper diplomat.
This was an alarming conclusion. If correct, it would be impossible for a diplomat to assert immunity without on every occasion having to prove their appointment was “legitimate”. It would totally undermine the settled international law position where a diplomat can simply inform the court of his or her status via the certificate and the immunities of the Vienna Convention (or other relevant instrument) will be upheld.
Dr Al-Juffali appealed, as might be expected.
Intervention by the Foreign Secretary
Unusually, counsel for the Foreign Secretary, Philip Hammond, also intervened directly in the appeal to make representations to the Court. This clearly shows concern at the highest levels that a dangerous precedent might be set. Mr Hammond’s lawyer pointed out the risks to international relations if the High Court’s approach was upheld, arguing that “the conduct of foreign relations and the work of international organisations could be seriously hampered if the acceptance of accreditation of diplomats and Permanent Representatives was not regarded as conclusive, but was open to scrutiny by the courts.”
What has the Court of Appeal held?
Just before Easter, the Court of Appeal handed down its decision.
It (unsurprisingly) agreed with the High Court that Dr Al-Juffali was a permanent resident of the UK, and so his immunity did not extend further than acts performed in his official functions. The divorce petition could therefore proceed.
However, the Court of Appeal overturned the High Court’s decision on Dr Al-Juffali’s diplomatic status. It held that a Court should regard a certificate from the FCO as conclusive of a diplomat’s status. It noted that informal discussions between the states might deal with any inappropriate appointments before they were formally accepted – so it would be up to the Foreign Office to raise any issues before agrément is granted.
The Court agreed with the traditional understanding of these disputes: namely that the sanction for breach should be diplomatic, not legal, namely:
- That the host state appeal to the sending state for waiver;
- That the sending state recall the individual concerned; and
- As a last resort, that the host state declare the individual persona non grata.
What’s the impact?
The Court of Appeal’s decision in Estrada is good news for Missions and individual diplomats.
However, the case is symptomatic of growing media and political pressure on missions and diplomats.
Under this pressure, Courts will be increasingly tempted to interpret the scope of immunity as narrowly as possible. In addition, missions are already vulnerable to certain legal claims from local staff under a separate ruling last year.
Steps to Consider
It is vital that missions and individual diplomats ensure that:
- As the Vienna Convention requires, they obey the laws of the sending state. Particular areas of risk include employment and criminal law. It may be useful for missions to train staff in the extent of these legal obligations;
- They have appropriate paperwork (for example, employment contracts and other documentation should reflect that no commercial activity was being carried out); and
- Any employment of local staff falls within the increasingly narrow scope of state and diplomatic immunity.