1
00:00:00,150 --> 00:00:04,590
Thank you so much, Chaton and Natasha, it's a pleasure to be here,

2
00:00:04,590 --> 00:00:14,160
and I'm delighted to see so many friends and colleagues and people from around the world, including close to midnight or a.

3
00:00:14,160 --> 00:00:18,590
Quasi tort committed on the territory.

4
00:00:18,590 --> 00:00:27,680
Now, those of you familiar with this area will recognise parallels with modern exceptions to state and diplomatic immunities,

5
00:00:27,680 --> 00:00:31,970
and this is a point I'll come back to. So that was 1891.

6
00:00:31,970 --> 00:00:38,930
Let's fast forward 110 years when the ACTU decides to revisit this topic,

7
00:00:38,930 --> 00:00:47,090
and it adopted its Vancouver resolution on immunity from jurisdiction and execution of heads of state and of government,

8
00:00:47,090 --> 00:00:50,390
heads of government and international law.

9
00:00:50,390 --> 00:00:58,100
Now, I would not claim that either the Hamburg or the Vancouver resolutions have customary status as a whole,

10
00:00:58,100 --> 00:01:05,330
but they may show the direction of travel in this century apart and the Vancouver resolution

11
00:01:05,330 --> 00:01:11,900
distinguished between different officials so far serving heads of state in Article two.

12
00:01:11,900 --> 00:01:20,210
It said that heads of state shall enjoy immunity from jurisdiction before the courts of a foreign state for any crime, regardless of gravity.

13
00:01:20,210 --> 00:01:28,940
So absolute criminal immunity, criminal immunity from criminal jurisdiction in Article three, dealing with civil jurisdiction.

14
00:01:28,940 --> 00:01:34,940
It said the head of state does not enjoy any immunity from the jurisdiction of the courts of a foreign

15
00:01:34,940 --> 00:01:43,660
state unless that suit relates to acts performed in the exercise of his or her official functions.

16
00:01:43,660 --> 00:01:49,310
And they also said there would be no immunity in respect of a counterclaim.

17
00:01:49,310 --> 00:01:53,420
So that was serving heads of state and four former heads of state.

18
00:01:53,420 --> 00:02:00,410
The Vancouver resolution said in Article 32 that there was no immunity from jurisdiction criminal,

19
00:02:00,410 --> 00:02:08,540
civil or administrative, except in respect of acts which are performed in the exercise of social functions.

20
00:02:08,540 --> 00:02:13,280
And in an act of, I would say, progressive development by the institute,

21
00:02:13,280 --> 00:02:20,960
they said a former head of state may be prosecuted and tried when the acts alleged constitute a crime under international law or when they

22
00:02:20,960 --> 00:02:31,080
are performed exclusively to satisfy a personal interest or when they constitute a misappropriation of the state's assets and resources.

23
00:02:31,080 --> 00:02:37,440
And an Article 15, uniting the approach to heads of state and heads of government.

24
00:02:37,440 --> 00:02:45,720
The Vancouver resolution said that a head of government would enjoy the same inviolability and immunity from jurisdiction as the head of state.

25
00:02:45,720 --> 00:02:54,130
This is another point I'm going to come back to later. So that was the classic position over the centuries.

26
00:02:54,130 --> 00:02:58,060
But now let's see what UK law decided to do.

27
00:02:58,060 --> 00:02:59,590
My second point?

28
00:02:59,590 --> 00:03:09,100
And when it came to codifying the position of the head of state in English law, the clarity of the classic position was somewhat muddied.

29
00:03:09,100 --> 00:03:18,010
So under the 1978 State Immunity Act, heads of state are immune from proceedings in English courts on two bases,

30
00:03:18,010 --> 00:03:23,800
first via section 14 and second via Section 20.

31
00:03:23,800 --> 00:03:31,570
So first, section 14. This provides that an immunity applies to a head of state in the same way as it

32
00:03:31,570 --> 00:03:38,890
does to the state itself when that head of state is acting in a public capacity.

33
00:03:38,890 --> 00:03:46,420
This is a broad test in Jones. Lord Bingham considered that a person acts in his or her public or official

34
00:03:46,420 --> 00:03:52,690
capacity when they act in an apparent official capacity under colour of authority.

35
00:03:52,690 --> 00:04:03,400
And specifically, he said, it is irrelevant whether they may have had a. or improper motives or may be abusing public power.

36
00:04:03,400 --> 00:04:11,470
So that section 14, the more straightforward of the grounds to a head of state when they are acting in a public capacity,

37
00:04:11,470 --> 00:04:21,010
but then we come to an innovation in the UK statute section 20, which makes the picture rather more complicated.

38
00:04:21,010 --> 00:04:28,270
And the Court of Appeal has said to call the draughting of Section 20 clumsy would be an understatement,

39
00:04:28,270 --> 00:04:35,530
and you may see what they meant in Section 20 reads subject to the provisions of this section.

40
00:04:35,530 --> 00:04:46,240
And to any necessary modifications, the Diplomatic Privileges Act shall apply to a sovereign or other head of state and members of his family,

41
00:04:46,240 --> 00:04:56,450
forming part of this household as it applies to the head of a diplomatic mission and to members of his family forming part of his household.

42
00:04:56,450 --> 00:05:03,560
So we have this cross-reference to the Diplomatic Privileges Act. So we turn to that act and we see that in a schedule.

43
00:05:03,560 --> 00:05:12,170
It has various articles of the 1961 Vienna Convention on Diplomatic Relations, giving them the force of law in the UK.

44
00:05:12,170 --> 00:05:22,550
Those articles include Article 31, which provides for extensive immunity from civil proceedings subject to three exceptions.

45
00:05:22,550 --> 00:05:31,820
And you may see a recall back to the Hamburg resolution a real action relating to private in the

46
00:05:31,820 --> 00:05:40,220
immovable property in the UK and action relating to succession and the the broadest of the three,

47
00:05:40,220 --> 00:05:49,040
but still on the narrow an action relating to any preferred professional or commercial activity exercised by the diplomatic agent.

48
00:05:49,040 --> 00:05:59,390
Or we replace that with the head of state because we're cross-referencing in the receiving state outside his official functions.

49
00:05:59,390 --> 00:06:11,990
But of course, all of that is subject to this mysterious reference to necessary modifications which are left undefined in the State Immunity Act.

50
00:06:11,990 --> 00:06:17,240
So as observed by the court in Harbin, as is the State Immunity Act,

51
00:06:17,240 --> 00:06:25,850
therefore formulates the nature and extent of the immunity from suit by reference to what applies to the head of a diplomatic mission.

52
00:06:25,850 --> 00:06:34,760
Rather than setting out in plain language what the law of the UK is in relation to the immunity from suit of a head of state.

53
00:06:34,760 --> 00:06:40,550
You can perhaps read some judicial frustration between those lines,

54
00:06:40,550 --> 00:06:47,240
and you can see why some sovereigns may feel uneasy about their litigation exposure in English courts.

55
00:06:47,240 --> 00:06:56,150
And even though the State Immunity Act has been generally influential in other jurisdictions, including definitely Commonwealth jurisdictions,

56
00:06:56,150 --> 00:07:02,450
only Australia has chosen to follow the UK in this cross-reference between head of

57
00:07:02,450 --> 00:07:09,230
state immunity in the statute and diplomatic immunity under the Vienna Convention.

58
00:07:09,230 --> 00:07:17,630
So I've now turned to my third point and some recent English cases that illustrate tensions that may arise,

59
00:07:17,630 --> 00:07:20,960
and this five issues that we can consider here.

60
00:07:20,960 --> 00:07:27,290
And they have all arisen in cases in the English courts in the last 12 months.

61
00:07:27,290 --> 00:07:31,910
So the first is the meaning of the head of state acting in his public capacity.

62
00:07:31,910 --> 00:07:38,990
The second is the meaning of the professional or commercial activity exception when applied to a head of state.

63
00:07:38,990 --> 00:07:49,010
The third is this reference to necessary modifications that might be needed when you apply the Vienna Convention rule to a head of state.

64
00:07:49,010 --> 00:07:57,170
The fourth is how immunity applies to members of the head of state family forming part of his or her household.

65
00:07:57,170 --> 00:08:06,150
And the fifth is how the scope of the immunity of a head of government may differ from that of a head of state.

66
00:08:06,150 --> 00:08:11,010
So first, turning to the meaning of a head of state acting in his public capacity.

67
00:08:11,010 --> 00:08:16,920
And the recent case here is Circus and Poroshenko decided last September,

68
00:08:16,920 --> 00:08:26,580
the Commercial Court held that the former president of Ukraine was immune from claims arising out of Ukraine's nationalisation of private bank.

69
00:08:26,580 --> 00:08:33,270
President Poroshenko was accused of engaging in a conspiracy to procure the designation of

70
00:08:33,270 --> 00:08:38,940
the claimants companies with the object of depriving them of funds held with private bank,

71
00:08:38,940 --> 00:08:43,020
which was then Ukraine's biggest bank.

72
00:08:43,020 --> 00:08:52,680
And the court held that these alleged acts, which of course President Poroshenko denied, would have been done in his public capacity as president.

73
00:08:52,680 --> 00:09:03,750
This was all about nationalisation, working with the various international financial institutions and designating various entities,

74
00:09:03,750 --> 00:09:11,400
and the court said even if the acts were for a private or improper purpose, such as improving his chances of re-election,

75
00:09:11,400 --> 00:09:17,040
which had been argued by the claimants, it was still in his public capacity.

76
00:09:17,040 --> 00:09:24,510
And Mr Justice Carver observed that advancing one's personal agenda or abusing power for private reasons

77
00:09:24,510 --> 00:09:32,310
is irrelevant to the characterisation of conduct as having been done under colour of authority.

78
00:09:32,310 --> 00:09:39,240
Despite prevailing in that case, I don't think former President Poroshenko is sleeping easily these days.

79
00:09:39,240 --> 00:09:48,240
He is awaiting charges of high treason in Ukraine in a case that he denounces as a politically motivated prosecution by a successor.

80
00:09:48,240 --> 00:09:55,940
And this is all in addition for the reasons that all Ukrainians are not sleeping easily at the moment.

81
00:09:55,940 --> 00:10:02,630
And a case from last March, Fernanda and six a.m. doesn't involve a head of state,

82
00:10:02,630 --> 00:10:07,550
but is interesting for its analysis of the diplomatic immunity rule.

83
00:10:07,550 --> 00:10:12,500
The divisional court found that the former minister counsellor for defence at the Sri Lankan High

84
00:10:12,500 --> 00:10:19,340
Commission was immune from criminal proceedings for threatening behaviour because the alleged threat,

85
00:10:19,340 --> 00:10:27,410
which was making a cut throat gesture before a protesting crowd was made during the course of his functions.

86
00:10:27,410 --> 00:10:36,350
Monitoring that protest and the court held, it was therefore an act performed diplomat and not in his personal capacity.

87
00:10:36,350 --> 00:10:42,800
And in an interesting analysis, the court said When you're talking about what is done in a public capacity.

88
00:10:42,800 --> 00:10:54,000
You have to look beyond the job description of the person. It's really whether the act is performed quite diplomatically, the head of state.

89
00:10:54,000 --> 00:11:01,470
The second issue is the meaning of the professional or commercial activity exception when it comes to a head of state,

90
00:11:01,470 --> 00:11:07,620
and the case here is Mozambique and Credit Suisse International, which is an ongoing case.

91
00:11:07,620 --> 00:11:16,170
But I'm interested in an order that was made last May. Mozambique brought claims before the English courts in relation to the financing of

92
00:11:16,170 --> 00:11:22,500
certain projects related to the protection and development of its territorial waters.

93
00:11:22,500 --> 00:11:31,290
And one of the defendants has argued that if these claims in English courts succeed, then other parties must also be liable,

94
00:11:31,290 --> 00:11:39,360
including the current president of Mozambique, who was minister of defence at the material time.

95
00:11:39,360 --> 00:11:46,950
So the argument was that President Nuzzi is not immune because the relevant conduct alleged conduct,

96
00:11:46,950 --> 00:11:52,530
including representations in relation to donations to his then presidential campaign,

97
00:11:52,530 --> 00:12:02,160
occurred in the course of a professional activity outside of his functions and therefore fell within Article 31 one C of the Vienna Convention,

98
00:12:02,160 --> 00:12:09,990
which, as we saw, is incorporated into the State Immunity Act via Section 20 of that act.

99
00:12:09,990 --> 00:12:18,540
And Mrs Justice Cockerel permitted service on President and U.S. binding there to be a good arguable case that seeking contributions to

100
00:12:18,540 --> 00:12:30,390
a political campaign was a professional activity of a politician outside of his functions as a head of state and therefore not immune.

101
00:12:30,390 --> 00:12:35,520
The third issue is this reference to necessary modifications.

102
00:12:35,520 --> 00:12:38,880
It's not clear what these modifications may be.

103
00:12:38,880 --> 00:12:51,630
How do we modify the Vienna Convention, a widely ratified, customary self-contained regime designed for diplomats to apply to heads of state?

104
00:12:51,630 --> 00:12:57,600
There's many questions that can arise here, but one question is territorial scope,

105
00:12:57,600 --> 00:13:06,840
because the exceptions to immunity in Article 31 of the Vienna Convention refer to acts taking place in the receiving state,

106
00:13:06,840 --> 00:13:11,160
which would be the UK in these cases. And the question is,

107
00:13:11,160 --> 00:13:18,210
should this reference to the territorial limit on these exceptions be modified when it applies

108
00:13:18,210 --> 00:13:24,960
to a head of state in order to encompass their conduct that takes place anywhere in the world?

109
00:13:24,960 --> 00:13:31,260
So this may be an issue in the Mozambique case, but has not been decided yet.

110
00:13:31,260 --> 00:13:37,290
But it was an issue that was looked at in Pinochet and number three the House of

111
00:13:37,290 --> 00:13:42,690
Lords considered the process by which necessary modifications should be made.

112
00:13:42,690 --> 00:13:45,330
Now, in that case, they weren't looking at Article 31.

113
00:13:45,330 --> 00:13:51,780
They were looking at Article 39 of the Vienna Convention because at the time of those proceedings,

114
00:13:51,780 --> 00:13:56,790
General Pinochet was no longer the head of state of Chile and was merely Senator Pinochet,

115
00:13:56,790 --> 00:14:01,710
a former head of state and the House of Lords looked at Article 39,

116
00:14:01,710 --> 00:14:11,640
which provides that diplomatic immunity ends when the diplomat leaves the country or on the expiry of a reasonable period in which to do so,

117
00:14:11,640 --> 00:14:17,400
say for immunity in respect of the exercise of his or her functions as a member of the mission.

118
00:14:17,400 --> 00:14:23,400
There's a lot in that provision that does not translate easily to a head of state.

119
00:14:23,400 --> 00:14:32,160
They're not leaving the country. Well, not necessarily when they stop being head of state, for whatever reason.

120
00:14:32,160 --> 00:14:36,840
There's no expiry of a reasonable period that would seem to apply,

121
00:14:36,840 --> 00:14:43,620
and functions here would be their functions as head of state rather than a member of a diplomatic mission.

122
00:14:43,620 --> 00:14:54,850
So the Lords held that this residual immunity in Article 39 could be applied to a former head of state without tying it to the territory of the UK.

123
00:14:54,850 --> 00:15:02,740
And Lord Goff explained, and I quote at first, this seems very strange when applied to a head of state,

124
00:15:02,740 --> 00:15:09,670
but we have to be robust in applying the Vienna Convention to heads of state with the necessary modifications.

125
00:15:09,670 --> 00:15:19,130
And in the case of a head of state, there can be no question of tying Article 39 to the territory of the receiving state.

126
00:15:19,130 --> 00:15:26,750
So they removed they modified Article 39 of the Vienna Convention by removing that link to the UK.

127
00:15:26,750 --> 00:15:32,780
Now the question of the territorial scope of Article 31, which applies to a current diplomat,

128
00:15:32,780 --> 00:15:39,320
was also considered in a different case a case of Apex Global, which I'll I'll come back to again.

129
00:15:39,320 --> 00:15:44,000
But just on this territorial point at first instance,

130
00:15:44,000 --> 00:15:55,220
Mr Justice Vos says he then was said in Obata that a necessary modification should be made so as to extend the exceptions in Article 31,

131
00:15:55,220 --> 00:16:02,180
but including the commercial activity exception to a commercial activity anywhere in the world.

132
00:16:02,180 --> 00:16:09,050
And he said it would make no sense to confine the commercial exemption to acts done in the UK when forums are

133
00:16:09,050 --> 00:16:15,500
friends and their families would not be expected to be in the UK for anything other than occasional visits.

134
00:16:15,500 --> 00:16:25,100
And he noted that the wind of customary international law was blowing towards removing immunity in respect of commercial transactions.

135
00:16:25,100 --> 00:16:30,080
This went on appeal to the Court of Appeal, and they also commented in overturning.

136
00:16:30,080 --> 00:16:36,920
It wasn't the the ratio of the case, so it's non-binding, but they took a different view on territorial scope.

137
00:16:36,920 --> 00:16:43,640
They said the exception for commercial activity only applied in the territory of the UK to a head of state,

138
00:16:43,640 --> 00:16:47,330
so they would not modify the wording of Article 31.

139
00:16:47,330 --> 00:16:53,270
They said otherwise it would leave the head of state with less immunity than his ambassador that those with disputes

140
00:16:53,270 --> 00:17:00,560
against the head of state would seek to use his or her temporary presence in the UK as a basis to engage in litigation,

141
00:17:00,560 --> 00:17:08,720
and that the purpose of the CAA had been to provide for personal immunity for visiting foreign heads of state while in the UK.

142
00:17:08,720 --> 00:17:17,480
So this remains unsettled. The fourth issue how does this apply to a head of government?

143
00:17:17,480 --> 00:17:25,250
So so far we've mainly been speaking of heads of state. Heads of government are not mentioned in the State Immunity Act.

144
00:17:25,250 --> 00:17:26,330
Last October,

145
00:17:26,330 --> 00:17:35,210
a number of judgements were made public in proceedings relating to the welfare of two children of His Highness Sheikh Mohammed bin Rashid Al Maktoum,

146
00:17:35,210 --> 00:17:38,870
the ruler of Dubai and the prime minister of the United Arab Emirates.

147
00:17:38,870 --> 00:17:45,320
He holds both roles and his former wife, Her Royal Highness Princess Haya.

148
00:17:45,320 --> 00:17:53,960
The Prime Minister, had commenced proceedings in the English High Court seeking the return of the children to Dubai.

149
00:17:53,960 --> 00:17:59,570
Princess Higher sought to prevent the children from being removed from the jurisdiction.

150
00:17:59,570 --> 00:18:07,190
The prime minister asserted immunity as a head of government in relation to the applications by Princess High for financial support.

151
00:18:07,190 --> 00:18:12,140
So one, there were multiple questions confronting the Family Court,

152
00:18:12,140 --> 00:18:16,400
but one of those questions for our purposes was whether heads of government

153
00:18:16,400 --> 00:18:22,790
are immune from civil proceedings relating to personal and private matters.

154
00:18:22,790 --> 00:18:29,570
And the High Court observed that there was a lack of consensus on the scope of the immunities of heads of government.

155
00:18:29,570 --> 00:18:35,060
They said there was practise of six states the US, India, Singapore, Grenada,

156
00:18:35,060 --> 00:18:40,580
Israel and Spain that supported the UAE prime minister's position on immunity.

157
00:18:40,580 --> 00:18:48,950
But this was insufficient to establish a rule of custom and instead they referred to an observation by Lord Millett in Pinochet,

158
00:18:48,950 --> 00:18:55,880
which had been made in Obata, which said that immunity ration episode nine is a status immunity.

159
00:18:55,880 --> 00:19:01,100
An individual who enjoys its protection does so because of his official status.

160
00:19:01,100 --> 00:19:08,000
While he is in office, he enjoys absolute immunity from the civil and criminal jurisdiction of the national courts of foreign states,

161
00:19:08,000 --> 00:19:15,920
but it is only narrowly available. It is confined to serving heads of state and heads of diplomatic missions, their families and servants.

162
00:19:15,920 --> 00:19:20,360
It is not available to serving heads of government who are not also heads of state

163
00:19:20,360 --> 00:19:25,730
military commanders and those in charge of the security forces or their subordinates.

164
00:19:25,730 --> 00:19:32,080
It would have been available to Hitler, but not to Mussolini or Tojo.

165
00:19:32,080 --> 00:19:36,610
Well, the High Court and the Court of Appeal in the UAE,

166
00:19:36,610 --> 00:19:43,300
a prime minister case found that there is no exact equivalence between the head of government and head of state,

167
00:19:43,300 --> 00:19:47,770
no matter how logical that development may be.

168
00:19:47,770 --> 00:19:53,050
So the court, both the High Court and the Court of Appeal that upheld it has broken apart

169
00:19:53,050 --> 00:19:57,250
this notion that we're used to relying on an international law of the troika.

170
00:19:57,250 --> 00:20:05,230
The head of state, the head of government and the foreign minister, they've been split up by this judgement, at least for the purposes of English law.

171
00:20:05,230 --> 00:20:13,060
They are all three senior representatives who speak for the state, but they don't have identical immunities, according to this case law.

172
00:20:13,060 --> 00:20:20,530
So the current state of English law is that the head of government only enjoys functional immunity from civil jurisdiction.

173
00:20:20,530 --> 00:20:26,080
The head of state enjoys more extensive immunities not defined in the case,

174
00:20:26,080 --> 00:20:33,070
and the Minister for Foreign Affairs may also enjoy more extensive immunities, but also left undefined.

175
00:20:33,070 --> 00:20:45,640
In that case, I come to the first issue and the members of the family of a sovereign or head of state under the UK State Immunity Act.

176
00:20:45,640 --> 00:20:51,970
The immunity of a head of state extends to the members of his family, forming part of this household,

177
00:20:51,970 --> 00:20:56,680
and the meaning of this phrase has been contested in the English courts.

178
00:20:56,680 --> 00:21:04,780
Just last December, a couple of months ago, there was a hearing that directly addressed this issue in a case against His Majesty one Carlos,

179
00:21:04,780 --> 00:21:09,430
the former king of Spain and the father of the current king.

180
00:21:09,430 --> 00:21:13,120
That judgement is still pending around the world.

181
00:21:13,120 --> 00:21:21,310
You have monarchies with thousands of members like the Saudi royal family and those with very few nuclear family members.

182
00:21:21,310 --> 00:21:30,190
Spain, the Netherlands and Sweden. So now I come back to the apex global case that I mentioned earlier when I talked about territorial scope,

183
00:21:30,190 --> 00:21:39,640
because the key issue in that case was whether two Saudi princes formed part of the family and household of the King of Saudi Arabia.

184
00:21:39,640 --> 00:21:48,590
One of the princes was one of 36 brothers or half brothers of the king, lived in a separate house and had substantial business interests.

185
00:21:48,590 --> 00:21:51,760
He wasn't much involved in the running of the country.

186
00:21:51,760 --> 00:22:00,640
His son was one of many nephews of the king also did not even live in the same household and worked as an active businessman.

187
00:22:00,640 --> 00:22:08,110
The Court of Appeal in that case focussed on the enormous size of the Saudi royal family with 5000 members,

188
00:22:08,110 --> 00:22:15,520
and Lord Justice Briggs observed that once some form of extension of the meaning of household beyond spouses,

189
00:22:15,520 --> 00:22:20,380
civil partners, dependent children and relatives is contemplated.

190
00:22:20,380 --> 00:22:26,590
It is impossible to discern as a matter of interpretation of Section 20 where the boundaries should be set.

191
00:22:26,590 --> 00:22:35,950
The interpreter is cast adrift upon an uncharted sea in which, like the judge, he is forced to make up the rules as he goes along.

192
00:22:35,950 --> 00:22:41,470
More dissatisfaction with Section 20 may be observed.

193
00:22:41,470 --> 00:22:48,640
And this brings to mind the case from four decades ago involving Prince Charles in Kilroy and Windsor.

194
00:22:48,640 --> 00:22:52,450
A civil complaint was brought against him in the US courts,

195
00:22:52,450 --> 00:22:59,740
and the facts are not so far apart from what could happen today to many heads of state and members of their family.

196
00:22:59,740 --> 00:23:04,360
Prince Charles was on a visit to the United States. He was addressing an audience.

197
00:23:04,360 --> 00:23:13,060
He was opening a building at the Cleveland State University when a third year law student, Jack Kilroy, stood up and asked.

198
00:23:13,060 --> 00:23:17,800
I would like to know when England is going to stop torturing political prisoners.

199
00:23:17,800 --> 00:23:27,430
Jack Kilroy was removed from the event by security guards and then filed a complaint for deprivation of his rights under the US constitution.

200
00:23:27,430 --> 00:23:31,810
The court dismissed the claim on the basis of immunity.

201
00:23:31,810 --> 00:23:40,540
The US attorney general, upon the recommendation of the State Department, filed a suggestion of immunity, referring both to special missions immunity,

202
00:23:40,540 --> 00:23:47,230
which covers certain officials during their visits overseas and the fact that Prince

203
00:23:47,230 --> 00:23:54,080
Charles was a member of the Queen's family and household and the heir apparent.

204
00:23:54,080 --> 00:24:00,000
So now I come to some reflections on the direction of travel.

205
00:24:00,000 --> 00:24:10,650
Three hundred and fifty years ago, John Milton wrote a crown golden in show is but a wreath of thorns brings dangers, troubles,

206
00:24:10,650 --> 00:24:21,690
cars and sleepless nights to him, who wears the regal Didem and much more recently in his magisterial work on the legal position in international law.

207
00:24:21,690 --> 00:24:30,270
Heads of state, heads of government and foreign ministers, Sir Arthur Watts observed less poetically if the entitlement of a head of state to

208
00:24:30,270 --> 00:24:35,010
immunity for his official but commercial axe is still a matter of uncertainty.

209
00:24:35,010 --> 00:24:42,440
So too is the extent of his immunity in respect of conduct in his purely personal capacity.

210
00:24:42,440 --> 00:24:44,660
There is much that falls in a grey zone,

211
00:24:44,660 --> 00:24:53,060
and that may cause sleepless nights for heads of state and government and their council to just flag a few of those before we,

212
00:24:53,060 --> 00:24:58,160
we can discuss the immunity of a head of state may be subject to customary international law,

213
00:24:58,160 --> 00:25:05,780
statute, case law, soft law, comity, foreign policy and in the UK's case and Australia's case,

214
00:25:05,780 --> 00:25:12,740
the imperfect cross-referencing of statute and a treaty on another area of immunities

215
00:25:12,740 --> 00:25:18,830
and state practise in this area is just diverse enough to cause problems.

216
00:25:18,830 --> 00:25:23,330
Second, civil and criminal immunities are moving in different directions.

217
00:25:23,330 --> 00:25:27,620
The case of the prime minister of the UAE has doubled down on the distinction between

218
00:25:27,620 --> 00:25:34,130
criminal and civil jurisdiction that was drawn in Pinochet and Jones by the House of Lords.

219
00:25:34,130 --> 00:25:38,840
So immunity from criminal jurisdiction remains a core immunity,

220
00:25:38,840 --> 00:25:46,220
while interference from civil litigation appears to be more tolerable, especially for private acts.

221
00:25:46,220 --> 00:25:56,180
Third, the troika is no longer one unit in English law, even though it was treated as such in the 2001 Vancouver resolution I mentioned earlier,

222
00:25:56,180 --> 00:26:02,220
and also in the ICJ arrest warrant judgement for the purposes of criminal jurisdiction.

223
00:26:02,220 --> 00:26:09,600
And embedded in that rejection of the troika as a concept is a presumption about where the real power lies.

224
00:26:09,600 --> 00:26:17,160
But as Joanne Folks has noted, a head of state may often fulfil only a formal constitutional role,

225
00:26:17,160 --> 00:26:24,570
while the real power is exercised by other organs of the state, including the head of government.

226
00:26:24,570 --> 00:26:32,580
Fourth, where is the line between official and private x x sovereign and acts as a private person?

227
00:26:32,580 --> 00:26:38,280
Now, if you have proceedings regarding the welfare of your children, that's clearly a private matter.

228
00:26:38,280 --> 00:26:44,220
If you have proceedings regarding your acts, perform when head of state and using the state apparatus.

229
00:26:44,220 --> 00:26:50,730
Well, that's clearly in your public capacity. But what of acts of a mixed official private nature?

230
00:26:50,730 --> 00:26:58,980
What if acts performed ultra various? What is the relevance of the law of the home state or the law of the Forum state in defining

231
00:26:58,980 --> 00:27:06,390
what we consider to be official and should what is properly seen as official evolve over time?

232
00:27:06,390 --> 00:27:10,890
And remember and Pinochet, the House of Lords held that torture,

233
00:27:10,890 --> 00:27:21,280
murder and conspiracy to commit torture and murder would have been acts done in Pinochet's public capacity as head of state.

234
00:27:21,280 --> 00:27:28,150
Fifth, another important distinction for which I am grateful for discussions I've had with John Moss,

235
00:27:28,150 --> 00:27:34,060
I see him online here is between immunities from jurisdiction and inviolability,

236
00:27:34,060 --> 00:27:37,600
which is the protection from physical interference or restraint,

237
00:27:37,600 --> 00:27:42,940
as in the search for arrest of a person or constraint on that person's freedom to travel.

238
00:27:42,940 --> 00:27:52,180
Even so, even if you manage to find an exception to immunity that applies to a head of state, they may still remain inviolable.

239
00:27:52,180 --> 00:28:03,550
Six. There is an appreciation Still, despite what I opened with with the the travails of the royal family here in the UK,

240
00:28:03,550 --> 00:28:07,870
there is still very much an appreciation, especially under Queen Elizabeth,

241
00:28:07,870 --> 00:28:16,600
the second for the real constitutional importance of maintaining the dignity of the sovereign and close members of the royal family.

242
00:28:16,600 --> 00:28:22,540
And this has been affirmed by the English courts recently outside of the immunity context.

243
00:28:22,540 --> 00:28:27,220
There was a decision in September last year by the president of the Family Division of

244
00:28:27,220 --> 00:28:35,050
the High Court to seal the win of Prince Philip and in the course of his submissions,

245
00:28:35,050 --> 00:28:37,360
which were adopted by the court.

246
00:28:37,360 --> 00:28:47,910
The Attorney-General at the time cited a statement made by Walter Badgett in the English Constitution in 1867 that said a constitution

247
00:28:47,910 --> 00:28:58,960
needs two parts one to excite and preserve the reverence of the population and the other to employ that homage in the work of government.

248
00:28:58,960 --> 00:29:04,750
The first part is what he called dignified, and the second part is what he called efficient.

249
00:29:04,750 --> 00:29:12,880
And the court adopted the approach that the monarch was a prime example of dignity in this sense.

250
00:29:12,880 --> 00:29:22,390
But my seventh and final point is that more broadly, there's a noticeable movement in society, not just in the realm of immunity,

251
00:29:22,390 --> 00:29:30,640
but against the idea that certain elites, whether elected or hereditary, can operate above the law.

252
00:29:30,640 --> 00:29:37,630
So there are many reasons for sleepless nights for some and litigation opportunities for others.

253
00:29:37,630 --> 00:29:40,512
Thank you.