Thank you so much, Chaton and Natasha, it's a pleasure to be here,
and I'm delighted to see so many friends and colleagues and people from around the world, including close to midnight or a.
Quasi tort committed on the territory.
Now, those of you familiar with this area will recognise parallels with modern exceptions to state and diplomatic immunities,
and this is a point I'll come back to. So that was 1891.
Let's fast forward 110 years when the ACTU decides to revisit this topic,
and it adopted its Vancouver resolution on immunity from jurisdiction and execution of heads of state and of government,
heads of government and international law.
Now, I would not claim that either the Hamburg or the Vancouver resolutions have customary status as a whole,
but they may show the direction of travel in this century apart and the Vancouver resolution
distinguished between different officials so far serving heads of state in Article two.
It said that heads of state shall enjoy immunity from jurisdiction before the courts of a foreign state for any crime, regardless of gravity.
So absolute criminal immunity, criminal immunity from criminal jurisdiction in Article three, dealing with civil jurisdiction.
It said the head of state does not enjoy any immunity from the jurisdiction of the courts of a foreign
state unless that suit relates to acts performed in the exercise of his or her official functions.
And they also said there would be no immunity in respect of a counterclaim.
So that was serving heads of state and four former heads of state.
The Vancouver resolution said in Article 32 that there was no immunity from jurisdiction criminal,
civil or administrative, except in respect of acts which are performed in the exercise of social functions.
And in an act of, I would say, progressive development by the institute,
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
are performed exclusively to satisfy a personal interest or when they constitute a misappropriation of the state's assets and resources.
And an Article 15, uniting the approach to heads of state and heads of government.
The Vancouver resolution said that a head of government would enjoy the same inviolability and immunity from jurisdiction as the head of state.
This is another point I'm going to come back to later. So that was the classic position over the centuries.
But now let's see what UK law decided to do.
My second point?
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.
So under the 1978 State Immunity Act, heads of state are immune from proceedings in English courts on two bases,
first via section 14 and second via Section 20.
So first, section 14. This provides that an immunity applies to a head of state in the same way as it
does to the state itself when that head of state is acting in a public capacity.
This is a broad test in Jones. Lord Bingham considered that a person acts in his or her public or official
capacity when they act in an apparent official capacity under colour of authority.
And specifically, he said, it is irrelevant whether they may have had a. or improper motives or may be abusing public power.
So that section 14, the more straightforward of the grounds to a head of state when they are acting in a public capacity,
but then we come to an innovation in the UK statute section 20, which makes the picture rather more complicated.
And the Court of Appeal has said to call the draughting of Section 20 clumsy would be an understatement,
and you may see what they meant in Section 20 reads subject to the provisions of this section.
And to any necessary modifications, the Diplomatic Privileges Act shall apply to a sovereign or other head of state and members of his family,
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.
So we have this cross-reference to the Diplomatic Privileges Act. So we turn to that act and we see that in a schedule.
It has various articles of the 1961 Vienna Convention on Diplomatic Relations, giving them the force of law in the UK.
Those articles include Article 31, which provides for extensive immunity from civil proceedings subject to three exceptions.
And you may see a recall back to the Hamburg resolution a real action relating to private in the
immovable property in the UK and action relating to succession and the the broadest of the three,
but still on the narrow an action relating to any preferred professional or commercial activity exercised by the diplomatic agent.
Or we replace that with the head of state because we're cross-referencing in the receiving state outside his official functions.
But of course, all of that is subject to this mysterious reference to necessary modifications which are left undefined in the State Immunity Act.
So as observed by the court in Harbin, as is the State Immunity Act,
therefore formulates the nature and extent of the immunity from suit by reference to what applies to the head of a diplomatic mission.
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.
You can perhaps read some judicial frustration between those lines,
and you can see why some sovereigns may feel uneasy about their litigation exposure in English courts.
And even though the State Immunity Act has been generally influential in other jurisdictions, including definitely Commonwealth jurisdictions,
only Australia has chosen to follow the UK in this cross-reference between head of
state immunity in the statute and diplomatic immunity under the Vienna Convention.
So I've now turned to my third point and some recent English cases that illustrate tensions that may arise,
and this five issues that we can consider here.
And they have all arisen in cases in the English courts in the last 12 months.
So the first is the meaning of the head of state acting in his public capacity.
The second is the meaning of the professional or commercial activity exception when applied to a head of state.
The third is this reference to necessary modifications that might be needed when you apply the Vienna Convention rule to a head of state.
The fourth is how immunity applies to members of the head of state family forming part of his or her household.
And the fifth is how the scope of the immunity of a head of government may differ from that of a head of state.
So first, turning to the meaning of a head of state acting in his public capacity.
And the recent case here is Circus and Poroshenko decided last September,
the Commercial Court held that the former president of Ukraine was immune from claims arising out of Ukraine's nationalisation of private bank.
President Poroshenko was accused of engaging in a conspiracy to procure the designation of
the claimants companies with the object of depriving them of funds held with private bank,
which was then Ukraine's biggest bank.
And the court held that these alleged acts, which of course President Poroshenko denied, would have been done in his public capacity as president.
This was all about nationalisation, working with the various international financial institutions and designating various entities,
and the court said even if the acts were for a private or improper purpose, such as improving his chances of re-election,
which had been argued by the claimants, it was still in his public capacity.
And Mr Justice Carver observed that advancing one's personal agenda or abusing power for private reasons
is irrelevant to the characterisation of conduct as having been done under colour of authority.
Despite prevailing in that case, I don't think former President Poroshenko is sleeping easily these days.
He is awaiting charges of high treason in Ukraine in a case that he denounces as a politically motivated prosecution by a successor.
And this is all in addition for the reasons that all Ukrainians are not sleeping easily at the moment.
And a case from last March, Fernanda and six a.m. doesn't involve a head of state,
but is interesting for its analysis of the diplomatic immunity rule.
The divisional court found that the former minister counsellor for defence at the Sri Lankan High
Commission was immune from criminal proceedings for threatening behaviour because the alleged threat,
which was making a cut throat gesture before a protesting crowd was made during the course of his functions.
Monitoring that protest and the court held, it was therefore an act performed diplomat and not in his personal capacity.
And in an interesting analysis, the court said When you're talking about what is done in a public capacity.
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.
The second issue is the meaning of the professional or commercial activity exception when it comes to a head of state,
and the case here is Mozambique and Credit Suisse International, which is an ongoing case.
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
certain projects related to the protection and development of its territorial waters.
And one of the defendants has argued that if these claims in English courts succeed, then other parties must also be liable,
including the current president of Mozambique, who was minister of defence at the material time.
So the argument was that President Nuzzi is not immune because the relevant conduct alleged conduct,
including representations in relation to donations to his then presidential campaign,
occurred in the course of a professional activity outside of his functions and therefore fell within Article 31 one C of the Vienna Convention,
which, as we saw, is incorporated into the State Immunity Act via Section 20 of that act.
And Mrs Justice Cockerel permitted service on President and U.S. binding there to be a good arguable case that seeking contributions to
a political campaign was a professional activity of a politician outside of his functions as a head of state and therefore not immune.
The third issue is this reference to necessary modifications.
It's not clear what these modifications may be.
How do we modify the Vienna Convention, a widely ratified, customary self-contained regime designed for diplomats to apply to heads of state?
There's many questions that can arise here, but one question is territorial scope,
because the exceptions to immunity in Article 31 of the Vienna Convention refer to acts taking place in the receiving state,
which would be the UK in these cases. And the question is,
should this reference to the territorial limit on these exceptions be modified when it applies
to a head of state in order to encompass their conduct that takes place anywhere in the world?
So this may be an issue in the Mozambique case, but has not been decided yet.
But it was an issue that was looked at in Pinochet and number three the House of
Lords considered the process by which necessary modifications should be made.
Now, in that case, they weren't looking at Article 31.
They were looking at Article 39 of the Vienna Convention because at the time of those proceedings,
General Pinochet was no longer the head of state of Chile and was merely Senator Pinochet,
a former head of state and the House of Lords looked at Article 39,
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,
say for immunity in respect of the exercise of his or her functions as a member of the mission.
There's a lot in that provision that does not translate easily to a head of state.
They're not leaving the country. Well, not necessarily when they stop being head of state, for whatever reason.
There's no expiry of a reasonable period that would seem to apply,
and functions here would be their functions as head of state rather than a member of a diplomatic mission.
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.
And Lord Goff explained, and I quote at first, this seems very strange when applied to a head of state,
but we have to be robust in applying the Vienna Convention to heads of state with the necessary modifications.
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.
So they removed they modified Article 39 of the Vienna Convention by removing that link to the UK.
Now the question of the territorial scope of Article 31, which applies to a current diplomat,
was also considered in a different case a case of Apex Global, which I'll I'll come back to again.
But just on this territorial point at first instance,
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,
but including the commercial activity exception to a commercial activity anywhere in the world.
And he said it would make no sense to confine the commercial exemption to acts done in the UK when forums are
friends and their families would not be expected to be in the UK for anything other than occasional visits.
And he noted that the wind of customary international law was blowing towards removing immunity in respect of commercial transactions.
This went on appeal to the Court of Appeal, and they also commented in overturning.
It wasn't the the ratio of the case, so it's non-binding, but they took a different view on territorial scope.
They said the exception for commercial activity only applied in the territory of the UK to a head of state,
so they would not modify the wording of Article 31.
They said otherwise it would leave the head of state with less immunity than his ambassador that those with disputes
against the head of state would seek to use his or her temporary presence in the UK as a basis to engage in litigation,
and that the purpose of the CAA had been to provide for personal immunity for visiting foreign heads of state while in the UK.
So this remains unsettled. The fourth issue how does this apply to a head of government?
So so far we've mainly been speaking of heads of state. Heads of government are not mentioned in the State Immunity Act.
Last October,
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,
the ruler of Dubai and the prime minister of the United Arab Emirates.
He holds both roles and his former wife, Her Royal Highness Princess Haya.
The Prime Minister, had commenced proceedings in the English High Court seeking the return of the children to Dubai.
Princess Higher sought to prevent the children from being removed from the jurisdiction.
The prime minister asserted immunity as a head of government in relation to the applications by Princess High for financial support.
So one, there were multiple questions confronting the Family Court,
but one of those questions for our purposes was whether heads of government
are immune from civil proceedings relating to personal and private matters.
And the High Court observed that there was a lack of consensus on the scope of the immunities of heads of government.
They said there was practise of six states the US, India, Singapore, Grenada,
Israel and Spain that supported the UAE prime minister's position on immunity.
But this was insufficient to establish a rule of custom and instead they referred to an observation by Lord Millett in Pinochet,
which had been made in Obata, which said that immunity ration episode nine is a status immunity.
An individual who enjoys its protection does so because of his official status.
While he is in office, he enjoys absolute immunity from the civil and criminal jurisdiction of the national courts of foreign states,
but it is only narrowly available. It is confined to serving heads of state and heads of diplomatic missions, their families and servants.
It is not available to serving heads of government who are not also heads of state
military commanders and those in charge of the security forces or their subordinates.
It would have been available to Hitler, but not to Mussolini or Tojo.
Well, the High Court and the Court of Appeal in the UAE,
a prime minister case found that there is no exact equivalence between the head of government and head of state,
no matter how logical that development may be.
So the court, both the High Court and the Court of Appeal that upheld it has broken apart
this notion that we're used to relying on an international law of the troika.
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.
They are all three senior representatives who speak for the state, but they don't have identical immunities, according to this case law.
So the current state of English law is that the head of government only enjoys functional immunity from civil jurisdiction.
The head of state enjoys more extensive immunities not defined in the case,
and the Minister for Foreign Affairs may also enjoy more extensive immunities, but also left undefined.
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.
The immunity of a head of state extends to the members of his family, forming part of this household,
and the meaning of this phrase has been contested in the English courts.
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,
the former king of Spain and the father of the current king.
That judgement is still pending around the world.
You have monarchies with thousands of members like the Saudi royal family and those with very few nuclear family members.
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,
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.
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.
He wasn't much involved in the running of the country.
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.
The Court of Appeal in that case focussed on the enormous size of the Saudi royal family with 5000 members,
and Lord Justice Briggs observed that once some form of extension of the meaning of household beyond spouses,
civil partners, dependent children and relatives is contemplated.
It is impossible to discern as a matter of interpretation of Section 20 where the boundaries should be set.
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.
More dissatisfaction with Section 20 may be observed.
And this brings to mind the case from four decades ago involving Prince Charles in Kilroy and Windsor.
A civil complaint was brought against him in the US courts,
and the facts are not so far apart from what could happen today to many heads of state and members of their family.
Prince Charles was on a visit to the United States. He was addressing an audience.
He was opening a building at the Cleveland State University when a third year law student, Jack Kilroy, stood up and asked.
I would like to know when England is going to stop torturing political prisoners.
Jack Kilroy was removed from the event by security guards and then filed a complaint for deprivation of his rights under the US constitution.
The court dismissed the claim on the basis of immunity.
The US attorney general, upon the recommendation of the State Department, filed a suggestion of immunity, referring both to special missions immunity,
which covers certain officials during their visits overseas and the fact that Prince
Charles was a member of the Queen's family and household and the heir apparent.
So now I come to some reflections on the direction of travel.
Three hundred and fifty years ago, John Milton wrote a crown golden in show is but a wreath of thorns brings dangers, troubles,
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.
Heads of state, heads of government and foreign ministers, Sir Arthur Watts observed less poetically if the entitlement of a head of state to
immunity for his official but commercial axe is still a matter of uncertainty.
So too is the extent of his immunity in respect of conduct in his purely personal capacity.
There is much that falls in a grey zone,
and that may cause sleepless nights for heads of state and government and their council to just flag a few of those before we,
we can discuss the immunity of a head of state may be subject to customary international law,
statute, case law, soft law, comity, foreign policy and in the UK's case and Australia's case,
the imperfect cross-referencing of statute and a treaty on another area of immunities
and state practise in this area is just diverse enough to cause problems.
Second, civil and criminal immunities are moving in different directions.
The case of the prime minister of the UAE has doubled down on the distinction between
criminal and civil jurisdiction that was drawn in Pinochet and Jones by the House of Lords.
So immunity from criminal jurisdiction remains a core immunity,
while interference from civil litigation appears to be more tolerable, especially for private acts.
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,
and also in the ICJ arrest warrant judgement for the purposes of criminal jurisdiction.
And embedded in that rejection of the troika as a concept is a presumption about where the real power lies.
But as Joanne Folks has noted, a head of state may often fulfil only a formal constitutional role,
while the real power is exercised by other organs of the state, including the head of government.
Fourth, where is the line between official and private x x sovereign and acts as a private person?
Now, if you have proceedings regarding the welfare of your children, that's clearly a private matter.
If you have proceedings regarding your acts, perform when head of state and using the state apparatus.
Well, that's clearly in your public capacity. But what of acts of a mixed official private nature?
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
what we consider to be official and should what is properly seen as official evolve over time?
And remember and Pinochet, the House of Lords held that torture,
murder and conspiracy to commit torture and murder would have been acts done in Pinochet's public capacity as head of state.
Fifth, another important distinction for which I am grateful for discussions I've had with John Moss,
I see him online here is between immunities from jurisdiction and inviolability,
which is the protection from physical interference or restraint,
as in the search for arrest of a person or constraint on that person's freedom to travel.
Even so, even if you manage to find an exception to immunity that applies to a head of state, they may still remain inviolable.
Six. There is an appreciation Still, despite what I opened with with the the travails of the royal family here in the UK,
there is still very much an appreciation, especially under Queen Elizabeth,
the second for the real constitutional importance of maintaining the dignity of the sovereign and close members of the royal family.
And this has been affirmed by the English courts recently outside of the immunity context.
There was a decision in September last year by the president of the Family Division of
the High Court to seal the win of Prince Philip and in the course of his submissions,
which were adopted by the court.
The Attorney-General at the time cited a statement made by Walter Badgett in the English Constitution in 1867 that said a constitution
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.
The first part is what he called dignified, and the second part is what he called efficient.
And the court adopted the approach that the monarch was a prime example of dignity in this sense.
But my seventh and final point is that more broadly, there's a noticeable movement in society, not just in the realm of immunity,
but against the idea that certain elites, whether elected or hereditary, can operate above the law.
So there are many reasons for sleepless nights for some and litigation opportunities for others.
Thank you.