English High Court says that a head of state who dies in office enjoys immunity only in respect of official acts

Introduction

In the recent decision of Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2014] EWHC 1807 (Ch), the High Court found that the principles of state immunity apply to a head of state who dies in office in the same way as they apply to a head of state who stands down from office during their lifetime. The Court found that both enjoy immunity only in respect of their official acts whilst in office. There was no justification for treating the estate of a head of state who dies in office in a more favourable way than (i) a living former head of state or (ii) the estate of a former head of state who dies some time after leaving office.

The Claimant, Mrs Harb, alleged that in 1968 she was married in secret to King Fahd, who became sovereign of Saudi Arabia in 1982. She claimed that at some point before 1970, King Fahd promised to provide for her financially for the rest of her life. Mrs Harb alleged that the King provided for her until he suffered a stroke in 1995, whereupon he ceased to provide for her.

Mrs Harb initiated proceedings in London against King Fahd in 2004, claiming a lump sum of £12 million and two London properties. She alleged that this had been promised to her in 2003 on behalf of King Fahd by his son, Prince Abdul Aziz (the Prince), to honour his father's promise to provide for her financially. The claim against King Fahd was dismissed by the High Court by reason of state immunity. In 2005, King Fahd died, bringing proceedings against him to an end. In 2009, Mrs Harb launched a claim against the Prince, requesting an order requiring the Prince to transfer the two properties to Mrs Harb and to pay damages. The Prince applied for an order declaring that the court had no jurisdiction to try the claim on the grounds that it was barred by the state immunity conferred on a head of state under the State Immunity Act 1978.

For the purposes of the proceedings, it was agreed that:

• at the time of any alleged discussions and agreement in 2003, the Prince was acting as a conduit for or representative of his father, King Fahd;
• the Prince was entitled to the same immunity from suit in respect of any agreement concluded with Mrs Harb as his father was entitled to then and as his father's estate would be entitled to; and
• if Mrs Harb's claim had been brought whilst King Fahd was alive and serving as the sovereign head of state of Saudi Arabia, both the King and the Prince would have been able to claim state immunity to defeat her claim.

The sole question for the Court was therefore whether the King's immunity from suit (and hence the Prince's immunity from suit) continued to extend to everything the King did when he was head of state, whether of an official or private nature. The case is particularly interesting because counsel for both sides were unable to find any reference to a similar claim having been brought against the estate of a head of state who died in office. The case appears to have been the first of its kind to have dealt directly with this question of public international law. 

Sovereign Immunity Act 1978 (the SIA)

Under English law, section 20(1) of the SIA confers immunity on a head of state. It provides that the Diplomatic Privileges Act 1964 shall apply to a sovereign or other head of state as it applies to the head of a diplomatic mission, subject to "any necessary modifications". The Diplomatic Privileges Act 1964 in turn gives effect to certain provisions of the Vienna Convention on Diplomatic Relations 1961. The Court in Harb followed the decision of the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3) [2000] 1 AC 147 (Pinochet No. 3), the leading UK case on state immunity, in which Herbert Smith acted for the government of Chile. It found that the immunity of a head of state under the SIA should be construed in accordance with the immunity of a head of state under customary international law.

Customary international law

The Court referred to the well-known distinction in customary international law between immunity ratione materiae and immunity ratione personae. Immunity ratione personae,personal immunity, attaches to a head of state in power and an ambassador in post. It is a complete immunity, rendering them immune from all actions whether done in their public or private capacity and ceases to apply once they are no longer in office. Immunity ratione materiae, functional immunity, attaches to a former head of state or former ambassador after they leave office and provides that they will continue to enjoy immunity in respect of acts done in performance of their official functions whilst in office.

It was accepted by the Prince that any agreement he or his father had with Mrs Harb was a private matter and did not involve the exercise of the King's official functions. The Prince's application could therefore not succeed if the King's immunity was immunity ratione materiae and not immunity ratione personae. The question for the High Court was whether the finding of the House of Lords in Pinochet No.3 that a former living head of state did not enjoy immunity ratione personae once they left office bound the Court to decide that a head of state who died in office (here, their estate) also ceased to enjoy immunity ratione personae.

Mrs Harb argued that the decision in Pinochet No.3 was authority for the proposition that a former head of state, regardless of how they came to leave office, enjoys immunity ratione materiae, i.e. immunity only in respect of official acts. The Prince argued that Pincohet No. 3 could be distinguished on the grounds that King Fahd ceased to hold office because of his death. In Pinochet No.3, the former head of state, Senator Pinochet, was alive during the proceedings and the House of Lords did not consider the situation where a head of state died while in office.

Conclusion of the Court

The Court found that there were no grounds for distinguishing the principles set out in Pinochet No. 3 on the basis that King Fahd ceased to be head of state of Saudi Arabia on his death rather than during his lifetime. The principle that a former head of state enjoys only immunity ratione materiae applied to the late King as it applied to any head of state who stands down from office during his or her lifetime. There was no justification for treating the estate of a head of state who dies in office in a more favourable way than (i) a living former head of state or (ii) the estate of a former head of state who dies some time after leaving office.

The Court also found support for this conclusion in Article 39 of the Vienna Convention on Diplomatic Relations 1961. Under this provision, immunity ratione personae for an ambassador lasts only while he or she is in office, but is extended for a short period to allow the ambassador and his or her family (or just family in the case of the ambassador's death) to leave and take their belongings with them. It was not possible to interpret the immunity under section 20 of the SIA to grant an open-ended immunity ratione personae to a deceased head of state. This would go far beyond the "necessary modifications" which the Court may make in transposing Article 39 to apply to a head of state.

State immunity and the ECHR

The High Court also applied the recent European Court of Human Rights decision of Jones v United Kingdom [2014] ECHR 32 (previously reported on the blog here). The High Court interpreted the judgment in Jones as meaning that once the relevant principles of state immunity under international law have been established by the court, it need not carry out an additional step of considering whether the application of those principles would be disproportionate when balanced against the right of access to the courts guaranteed by Article 6 of the ECHR. If the Court had been satisfied that generally recognised rules of public international law conferred immunity on the Prince, it would not have been open to the Court to lift that immunity on the grounds that it was a disproportionate interference with Mrs Harb's Article 6 rights.

Comment

The decision that a former head of state enjoys only immunity ratione materiae whether they leave office within their lifetime or because of death is sensible. The historical function of head of state immunity is to facilitate diplomatic interactions with other states and it is in this sense that a head of state is seen to embody the state they represent. If the practical representative function may no longer be carried out by an individual because they die in office (and this function will most likely have been taken up by a successor), there is no clear justification for treating their estate differently from someone who loses their office by other means.

When considering the interaction between state immunity and Article 6 ECHR, the High Court emphasised the fundamental principle whereby civil claims must be capable of being submitted to a judge and found that this created a "default" position in favour of Mrs Harb. The Court's intention in making this comment is unclear given the recent case law of the European Court of Human Rights. Al-Adsani v United Kingdom [2001] ECHR 761 (which was followed in Jones v United Kingdom) confirmed that the right of access to a court may be limited by measures which comply with generally recognised rules of international law on state immunity. However, the comment by the High Court was strictly obiter and should not detract from the Court's generally clear interpretation of the relationship between the State Immunity Act 1978 and Article 6 of the ECHR.

For further information, please contact Andrew Cannon, Partner, Harry Ormsby, Associate, or your usual Herbert Smith Freehills contact.