Slippery slope for diplomatic immunity

Professor Craig Barker

Professor Craig Barker explains why a High Court ruling against a diplomat from Saudi Arabia could have a ripple effect for envoys far beyond British shores.

It may seem odd to assert that a celebrity divorce between a former supermodel and a wealthy Saudi Arabian diplomat could fundamentally undermine the whole essence of the law of diplomatic immunity; but such is the potential effect of a recent High Court decision.

In the case of Estrada v Al-Juffali, the court granted Christina Estrada permission to apply for financial relief after a foreign divorce, despite her ex-husband’s status as a diplomat with full diplomatic immunity in the UK.

Dr Walid Juffali, a Saudi national appointed in 2014 to represent St Lucia at the International Maritime Organisation (IMO), had asserted diplomatic immunity in response to these proceedings.

Mr Justice Hayden ruled that Ms Estrada had the right to make claim on Dr Juffali’s fortune, ruling that he had no entitlement to diplomatic immunity.

A sham appointment?
At first glance, one can understand the judge’s thinking. He questioned the timing of the appointment, Dr Juffali’s lack of experience in maritime matters and the fact that he had not attended a single meeting of the Organisation since his appointment.

He also examined whether Dr Juffali was permanently resident in the UK prior to his appointment and concluded that he was and so was entitled to reduced privileges and immunities.

Had he stopped there the case might have slipped past unnoticed; but he did not stop there. Instead, he drew all of the various factors together to conclude that Dr Juffali’s appointment was ‘an entirely artificial construct’. This is a very serious and potentially very damaging conclusion. Mr Justice Hayden has effectively called into question a diplomatic appointment by a foreign state. That the state was St Lucia and not, for example, Russia or Germany, should not matter. Crucially the appointment was certified by the UK through the inclusion of Dr Juffali on the Diplomatic List. Inclusion of a diplomat on the Diplomatic List is supposed to be the formal recognition by the Executive of diplomatic status bringing with it the conferment of diplomatic privileges and immunities.

To open that status up to challenge in the courts of the receiving state after a diplomat has taken up office there is highly problematic practically, legally and constitutionally.

Dangerous precedent
Consider if you will the position of a diplomat posted to an unfriendly state who is accused of spying. Such activity is not, it would be argued, one of the functions of a diplomat. Therefore, the argument would run, the appointment is ‘an entirely artificial construct’.

Unrealistic? I am not so sure given that this was exactly the argument put by the Government of Iran in the Tehran Hostages Case. That argument was rightly dismissed and, indeed, condemned, by the International Court of Justice in 1980.

The readers of this piece may be comforted to learn that the facts of the Juffali case are so narrow and specific that it is unlikely that any other accredited diplomat in the UK will face removal of their immunity on the grounds that they are not doing their job; but the mere fact that a court has deemed itself able to remove immunity in these circumstances without reference to the FCO and in complete disregard of the formal accreditation of an individual diplomat is worrying in and of itself.

The wider implications of courts in other, less friendly, jurisdictions using this case as a precedent for interference in a centuries old practice that sits at the heart of the diplomatic process should engender significant pause for thought.