Michaelmas
Term
[2017] UKSC 61
On appeal from: [2015] EWCA Civ 32
JUDGMENT
Reyes (Appellant/Cross-Respondent) v Al-Malki
and another (Respondents/Cross-Appellants)
before
Lord Neuberger
Lady Hale
Lord Clarke
Lord Wilson
Lord Sumption
JUDGMENT GIVEN ON
18 October 2017
Heard on 15, 16 and 17 May
2017
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Appellant/Cross-Respondent
Timothy Otty QC
Paul Luckhurst
(Instructed by
ATLEU)
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Respondents/Cross-Appellants
Sir
Daniel Bethlehem KCMG QC
Sudhanshu Swaroop
QC
(Instructed by Reynolds
Porter Chamberlain LLP)
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Intervener
(Kalayaan)
(Written
submissions only)
Richard Hermer QC
Tom Hickman
Flora Robertson
Philippa Webb
(Instructed by
Deighton Pierce Glynn)
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Intervener (Secretary
of State for Foreign and Commonwealth Affairs)
(Written
submissions only)
Ben Jaffey QC
Jessica Wells
(Instructed by The
Government Legal Department)
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LORD SUMPTION: (with whom
Lord Neuberger agrees)
Introduction
1.
Ms Reyes, a Philippine national, was employed by Mr and Mrs Al-Malki as
a domestic servant in their residence in London between 19 January and 14 March
2011. Her duties were to clean, to help in the kitchen at mealtimes and to look
after the children. At the time, Mr Al-Malki was a member of the diplomatic
staff of the embassy of Saudi Arabia in London. Ms Reyes alleges that she
entered the United Kingdom on a Tier 5 visa which she obtained at the British
embassy in Manila by producing documents supplied by Mr Al-Malki, including a
contract showing that she would be paid £500 per month. She alleges that during
her employment the Al-Malkis maltreated her by requiring her to work excessive
hours, failing to give her proper accommodation, confiscating her passport and
preventing her from leaving the house or communicating with others; and that
they paid her nothing until after her employment terminated upon her escape on
14 March. The proceedings have been conducted to date on the assumption, which
has been neither proved nor challenged, that these allegations are true. I
shall also make that assumption. In addition, I shall assume that these
allegations amount to trafficking in persons within the meaning of the
International Protocol to Prevent, Supress and Punish Trafficking in Persons,
Especially Women and Children (Palermo, 2000), although that is very much in
dispute.
2.
In June 2011, Ms Reyes began the present proceedings in the Employment
Tribunal alleging direct and indirect race discrimination, unlawful deduction
from wages and failure to pay her the national minimum wage. The Court of
Appeal has held that the Employment Tribunal has no jurisdiction because Mr
Al-Malki was entitled to diplomatic immunity under article 31 of the Vienna
Convention on Diplomatic Relations, and Mrs Al-Malki was entitled to a
derivative immunity under article 37(1) as a member of his family.
3.
The main issues on the appeal concern the effect of article 31(1)(c) of
the Convention, which contains an exception to the immunity of a diplomat from
civil jurisdiction where the proceedings relate to “any professional or
commercial activity exercised by the diplomatic agent in the receiving state
outside his official functions.” This raises, among other issues, the question
how, if at all, that exception applies to a case of human trafficking. Since
there is some evidence that human trafficking under cover of diplomatic status
is a recurrent problem, this is a question of some general importance. Its
broader significance explains the intervention, by leave of this court, of the
Secretary of State for Foreign and Commonwealth Affairs and of Kalayaan, a
charity that supports migrant domestic workers, some of whom have been
trafficked. For the same reason, I shall deal fully with the issues that were
argued in the Court of Appeal and before us, although not all of them arise on
the conclusions that I have reached.
4.
In my opinion, the employment of a domestic servant to provide purely
personal services is not a “professional or commercial activity exercised by the
diplomatic agent”. It is therefore not within the only relevant exception to
the immunities. The fact that the employment of Ms Reyes may have come about as
a result of human trafficking makes no difference to this. But the appeal
should be allowed on a different and narrower ground. On 29 August 2014, Mr
Al-Malki’s posting in London came to an end and he left the United Kingdom.
Article 31 confers immunity only while he is in post. A diplomatic agent who is
no longer in post and who has left the country is entitled to immunity only on
the narrower basis authorised by article 39(2). That immunity applies only so
far as the relevant acts were performed while he was in post in the exercise of
his diplomatic functions. The employment and maltreatment of Ms Reyes were not
acts performed by Mr Al-Malki in the exercise of his diplomatic functions.
The legal framework
5.
The legal immunity of diplomatic agents is one of the oldest principles
of customary international law. Its history can be traced back to the practices
of the ancient world and to Roman writers of the second century. “The rule has
been accepted by the nations,” wrote Grotius in the 17th century, “that the
common custom which makes a person who lives in foreign territory subject to
that country, admits of an exception in the case of ambassadors”: De Jure
Belli ac Pacis, ii.18. But, although recognition of diplomatic immunity is
all but universal in principle, until relatively recently both states and
writers differed on the categories of people to which the immunity applied and
its precise ambit in each category. In particular, they differed on the
existence and extent of any exceptions. In Britain, the matter was dealt with
by the Diplomatic Privileges Act 1708, which conferred absolute immunity on
ambassadors and their staff from civil jurisdiction, in accordance with what
British authorities regarded as the rule of international law. In Triquet v
Bath (1764) 3 Burrow 1478, 1480, Lord Mansfield described the Act as
declaratory of the law of nations, and it remained in force until 1964. The
United States adopted the British Act in 1790, and France adopted a
corresponding rule by legislation in 1794. In other countries, however,
exceptions of greater or lesser breadth were recognised, among others for private
transactions relating to title to real property, certain employment disputes
and liabilities arising out of business activities in the receiving state.
There were also differences about the application of the immunity to diplomatic
agents of a sending state who were nationals of the receiving state.
6.
These differences gave rise to a number of attempts during the 19th and
20th centuries to codify the law of diplomatic relations with a view to
achieving a common set of rules and enabling them to operate on a reciprocal
basis. The Havana Convention among the states of the Pan-American Union (1928)
and the influential draft convention drawn up by the Harvard Law School (1932)
were notable examples. But there was no universally accepted code before 1961.
The Vienna Convention on Diplomatic Relations, which was adopted in that year,
has been described by Professor Denza, the leading academic authority on the
law of diplomatic relations, as “a cornerstone of the modern international
order”: Diplomatic Law, 4th ed (2016), 1. It has been perhaps the most
notable single achievement of the International Law Commission of the United
Nations. The text was the result of an intensive process of research,
consultation and deliberation extending from 1954 to 1961. Draft articles were
submitted to the governments of every member state of the United Nations, and
were subject to detailed review and comment. Eighty one states participated in
the final conference at Vienna in March and April 1961 which preceded the
adoption of the final text. Since its adoption, it has been ratified by 191
states, being every state in the world bar four (Palau, the Solomon Islands,
South Sudan and Vanuatu). A number of states ratified subject to declarations
or reservations, but none of these related to the articles which are primarily
relevant on this appeal. As it stands, the Convention provides a complete
framework for the establishment, maintenance and termination of diplomatic
relations. It not only codifies pre-existing principles of customary
international law relating to diplomatic immunity, but resolves points on which
differences among states had previously meant that there was no sufficient
consensus to found any rule of customary international law.
7.
As the International Court of Justice has pointed out (Democratic
Republic of the Congo v Belgium (Arrest Warrant of 11 April 2000) [2002]
ICJ Rep 3, at paras 59-61), diplomatic immunity is not an immunity from
liability. It is a procedural immunity from the jurisdiction of the courts of
the receiving state. The receiving state cannot at one and the same time
receive a diplomatic agent of a foreign state and subject him to the authority
of its own courts in the same way as other persons within its territorial
jurisdiction. But the diplomatic agent remains amenable to the jurisdiction of
his own country’s courts, and in important respects to the jurisdiction of the
courts of the receiving state after his posting has ended. I do not
under-estimate the practical problems of litigating in a foreign jurisdiction,
especially for someone in Ms Reyes’ position. Nor do I doubt that diplomatic
immunity can be abused and may have been abused in this case. A judge can
properly regret that it has the effect of putting severe practical obstacles in
the way of a claimant’s pursuit of justice, for what may be truly wicked
conduct. But he cannot allow his regret to whittle away an immunity sanctioned
by a fundamental principle of national and international law. As the fourth
recital of the Vienna Convention points out, “the purpose of such privileges
and immunities is not to benefit individuals but to ensure the efficient
performance of diplomatic missions as representing states.”
8.
Diplomatic immunity is dealt with at articles 22 and 29 to 40 of the
Convention. These provisions confer different degrees of immunity on persons
connected with a diplomatic mission, according to their status and function.
For present purposes, the provisions primarily relevant are as follows:
“Article 22
1. The premises of the
mission shall be inviolable. The agents of the receiving state may not enter
them, except with the consent of the head of the mission.
2. The receiving state is
under a special duty to take all appropriate steps to protect the premises of
the mission against any intrusion or damage and to prevent any disturbance of
the peace of the mission or impairment of its dignity.
Article 29
The person of a diplomatic agent
shall be inviolable. He shall not be liable to any form of arrest or detention.
The receiving state shall treat him with due respect and shall take all
appropriate steps to prevent any attack on his person, freedom or dignity.
Article 30
1. The private residence
of a diplomatic agent shall enjoy the same inviolability and protection as the
premises of the mission.
Article 31
1. A diplomatic agent
shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall
also enjoy immunity from its civil and administrative jurisdiction, except in
the case of:
(a) a real action relating
to private immovable property situated in the territory of the receiving State,
unless he holds it on behalf of the sending State for the purposes of the
mission;
(b) an action relating to
succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the
sending state;
(c) an action relating to
any professional or commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions.
2. A diplomatic agent is
not obliged to give evidence as a witness.
3. No measures of
execution may be taken in respect of a diplomatic agent except in the cases
coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this article,
and provided that the measures concerned can be taken without infringing the
inviolability of his person or of his residence.
4. The immunity of a
diplomatic agent from the jurisdiction of the receiving state does not exempt
him from the jurisdiction of the sending state.
Article 32
1. The immunity from
jurisdiction of diplomatic agents … may be waived by the sending state.
Article 37
1. The members of the
family of a diplomatic agent forming part of his household shall, if they are
not nationals of the receiving state, enjoy the privileges and immunities
specified in articles 29 to 36.
Article 38
1. Except insofar as
additional privileges and immunities may be granted by the receiving state, a
diplomatic agent who is a national of or permanently resident in that state
shall enjoy only immunity from jurisdiction, and inviolability, in respect of
official acts performed in the exercise of his functions.
Article 39
2. When the functions of a
person enjoying privileges and immunities have come to an end, such privileges
and immunities shall normally cease at the moment when he leaves the country,
or on expiry of a reasonable period in which to do so, but shall subsist until
that time, even in case of armed conflict. However, with respect to acts
performed by such a person in the exercise of his functions as a member of the
mission, immunity shall continue to subsist.
…
Article 41
1. Without prejudice to
their privileges and immunities, it is the duty of all persons enjoying such
privileges and immunities to respect the laws and regulations of the receiving
state.
Article 42
A diplomatic agent shall not in
the receiving state practise for personal profit any professional or commercial
activity.”
9.
Section 2(1) of the Diplomatic Privileges Act 1964 provides that the
articles of the Vienna Convention annexed in Schedule 1 “shall have the force
of law in the United Kingdom.” Schedule 1 contains articles 1, 22 to 40 and 45
of the Convention. They include all the articles dealing with diplomatic
immunities.
Principles of interpretation
10.
It is not in dispute that so far as an English statute gives effect to
an international treaty, it falls to be interpreted by an English court in
accordance with the principles of interpretation applicable to treaties as a
matter of international law. That is especially the case where the statute
gives effect not just to the substance of the treaty but to the text: Fothergill
v Monarch Airlines Ltd [1981] AC 251, esp at pp 272E, 276-278 (Lord
Wilberforce), 281-282 (Lord Diplock), 290B-D (Lord Scarman).
11.
The primary rule of interpretation is laid down in article 31(1) of the
Vienna Convention on the Law of Treaties (1969):
“A treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose.”
The principle of construction according to the ordinary
meaning of terms is mandatory (“shall”), but that is not to say that a treaty
is to be interpreted in a spirit of pedantic literalism. The language must, as
the rule itself insists, be read in its context and in the light of its object
and purpose. However, the function of context and purpose in the process of
interpretation is to enable the instrument to be read as the parties would have
read it. It is not an alternative to the text as a source for determining the
parties’ intentions.
12.
In the case of the Convention on Diplomatic Relations, there are
particular reasons for adhering to these principles:
(1)
Like other multilateral treaties, the text was the result of an
intensely deliberative process in which the language of successive drafts was
minutely reviewed and debated, and if necessary amended. The text is the only
thing that all of the many states party to the Convention can be said to have
agreed. The scope for inexactness of language is limited.
(2)
The Convention must, in order to work, be capable of applying uniformly
to all states. The more loosely a multilateral treaty is interpreted, the
greater the scope for damaging divergences between different states in its
application. A domestic court should not therefore depart from the natural
meaning of the Convention unless the departure plainly reflects the intentions
of the other participating states, so that it can be assumed to be equally
acceptable to them. As Lord Slynn observed in R v Secretary of State for the
Home Department, Ex p Adan [2001] 2 AC 477, 509, an international treaty
has only one meaning. The courts
“cannot simply adopt a list of permissible or legitimate or
possible or reasonable meanings and accept that any one of those when applied
would be in compliance with the Convention.”
(3)
Although the purpose of stating uniform rules governing diplomatic
relations was “to ensure the efficient performance of the functions of
diplomatic missions as representing states”, this is relevant only to explain
why the rules laid down in the Convention are as they are. The ambit of each
immunity is defined by reference to criteria stated in the articles, which
apply generally and to all state parties. The recital does not justify looking
at each application of the rules to see whether on the facts of the particular
case the recognition of the defendant’s immunity would or would not impede the
efficient performance of the diplomatic functions of the mission. Nor can the
requirements of functional efficiency be considered simply in the light of
conditions in the United Kingdom. The courts of the United Kingdom are
independent and their procedures fair. It is difficult to envisage that
exposure to civil claims would materially interfere with the efficient
performance of diplomatic missions. But as the Secretary of State for Foreign
and Commonwealth Affairs pointed out, the same cannot be assumed of every legal
system in every state. The threat to the efficient performance of diplomatic
functions arises at least as much from the risk of trumped up or baseless
allegations and unsatisfactory tribunals as from justified ones subject to
objective forensic appraisal. It may fairly be said that from the United
Kingdom’s point of view, a significant purpose of conferring diplomatic
immunity of foreign diplomatic personnel in Britain is to ensure that British
diplomatic personnel enjoy corresponding immunities elsewhere.
(4)
Every state party to the Convention is both a sending and receiving
state. The efficacy of the Convention depends, even more than most treaties do,
on its reciprocal operation. Article 47.2 of the Convention authorises any
receiving state to restrict the application of a provision to the diplomatic
agents of a sending state if that state gives a restrictive application of that
provision as applied to the receiving state’s own mission. In some
jurisdictions, such as the United States, the recognition of diplomatic
immunities is dependent as a matter of national law on their reciprocity. As
Professor Denza observes, op cit, 2 -
“For the most part, failure to
accord privileges or immunities to diplomatic missions or their members is
immediately apparent and is likely to be met by appropriate countermeasures”
In the graphic words of her introduction to the
Vienna Convention on the United Nations law website, a state’s “own
representatives abroad are in a sense hostages who may on a basis of
reciprocity suffer if it violates the rules of diplomatic immunity”: http://legal.un.org/avl/ha/vcdr/vcdr.html.
Service of process
13.
A preliminary question arises on this appeal as to whether the claim
form was validly served on the Al-Malkis. A number of modes of service were
attempted, but the only one which is now relied on is service by post to their
private residence in accordance with Rule 61(1)(a) of the Employment Tribunal
Rules of Procedure. It is said on the Al-Malkis’ behalf that the rule cannot
authorise service on a diplomatic agent because this would violate his person
contrary to article 29 of the Convention and his residence contrary to article
30. I can deal shortly with this point, because it has failed at every stage
below and has been dealt with by the Court of Appeal in terms with which I am
in substantial agreement.
14.
The starting point is that we are not at this point concerned with the
question whether the diplomatic agent is immune from jurisdiction in respect of
the particular proceedings. Other articles of the Convention deal with that.
Those articles recognise that the jurisdictional immunity of a diplomatic agent
will not apply to all proceedings: they may relate to a matter within an
exception, or the immunity may have been waived. The present question is
whether there is an immunity from service, or from certain modes of service,
implicit in the inviolability of a diplomat’s person and private residence.
This immunity is distinct from and additional to his immunity from
jurisdiction. If it applies, then articles 29 and 30 of the Convention, being
unqualified, must prevent service by post in all proceedings whether or not
there is any jurisdictional immunity in respect of them. Indeed, it would also
apply to other communications by the state which have nothing to do with legal
proceedings, such as demands for rates or tax assessments on a diplomat’s
private income, notwithstanding that these may be properly demanded under
article 34 of the Convention.
15.
In the case of states, the mode of service is prescribed by section 12
of the State Immunity Act 1978. Service must be effected on a state by the
transmission of the document through the Foreign and Commonwealth Office.
Article 22 of the United Nations Convention on the Jurisdictional Immunities of
States, when it is in force, will require service of process on states to be
effected on states through diplomatic channels in the absence of agreement on
any other mode of service. There is, however, no corresponding provision
relating to service on diplomatic agents either in the Diplomatic Privileges
Act 1964 or in the Vienna Convention on Diplomatic Relations. According to the
Secretary of State, a practice has become established of serving process on
diplomatic agents through diplomatic channels on the foreign state or its
mission in the United Kingdom. But there is no statutory basis for this
practice. Nor, now that the law on diplomatic immunity has been codified, is
there any basis for it in international law, unless service violates the
diplomatic agent’s person or residence. Moreover, in the absence of some basis
in domestic law, it is not even a legally effective mode of service, since
there is no way that the foreign state can be required to accept service on
behalf of the diplomatic agent, if it chooses not to do so.
16.
The person of a diplomatic agent is violated if an agent of the
receiving state or acting on the authority of the receiving state detains him,
impedes his movement or subjects him to any personal restriction or indignity.
It is arguable that personal service on a diplomatic agent would do that,
although it is not an argument that needs to be considered here. Premises are
violated if an agent of the state enters them without consent or impedes access
to or from the premises or normal use of them: see article 22 relating to the
premises of a mission, which is applied by analogy to a diplomatic agent’s
private residence under article 30(1). The delivery by post of a claim form
does not do any of these things. It simply serves to give notice to the
defendant that proceedings have been brought against him, so that he can defend
his interests, for example by raising his immunity if he has any. The mere
conveying of information, however unwelcome, by post to the defendant, is not a
violation of the premises to which the letter is delivered. It is not a
trespass. It does not affront his dignity or affect his right to enter or leave
or use his home. It does of course start time running for subsequent procedural
steps and may lead to a default if no action is taken. But so far as this is
objectionable, it can only be because there is a relevant immunity from
jurisdiction. It is not because the proceedings were brought to the diplomatic
agent’s attention by post. Otherwise the same objection would apply to any mode
of service which starts time running, including service through diplomatic
channels as proposed by the Secretary of State.
Jurisdictional immunity: article 31(1)(c)
17.
Articles 31 to 40 of the Convention represent an elaborate scheme which
must be examined as a whole. Fundamental to its operation is the distinction,
which runs through the whole instrument, between those immunities which are
limited to acts performed in the course of a protected person’s functions as a
member or employee of the mission, and those which are not. The distinction is
fundamental because what an agent of a diplomatic mission does in the course of
his official functions is done on behalf of the sending state. It is an act of
the sending state, even though it may give rise to personal liability on the
part of the individual agent. In such a case, the individual agent is entitled
to both diplomatic and state immunity, and the two concepts are practically
indistinguishable: see Jones v Ministry of Interior for the Kingdom of Saudi
Arabia (Secretary of State for Constitutional Affairs intervening) [2007] 1 AC 270, at paras 10 (Lord Bingham), 66-78 (Lord Hoffmann). By comparison, the
acts which an agent of a diplomatic mission does in a personal or non-official
capacity are not acts of the state which employs him. They are acts in respect
of which any immunity conferred on him can be justified only on the practical
ground that his exposure to civil or criminal proceedings in the receiving
state, irrespective of the justice of the underlying allegation, is liable to
impede the functions of the mission to which he is attached. The degree of
impediment may vary from state to state and from case to case. But the
potential problem for the conduct of international relations has been
recognised from the earliest days of diplomatic intercourse, and in the United
Kingdom ever since the arrest of the Russian ambassador for debt as he returned
from an audience with Queen Anne led to the passing of the Diplomatic
Privileges Act 1708.
18.
The Vienna Convention distinguishes between diplomatic agents (ie
ambassadors and members of their diplomatic staff), the administrative and
technical staff of the mission, their respective families, and service staff of
the mission. The highest degree of protection is conferred on diplomatic
agents. In their case, the Convention substantially reproduces the previous
rules of customary international law, by which a diplomatic agent was immune
from the jurisdiction of the receiving state (i) in respect of things done in
the course of his official functions for an unlimited period, and (ii) in
respect of things done outside his official functions for the duration of his
mission only: see Zoernsch v Waldock [1964] 1 WLR 675, 684 (Willmer LJ),
688 (Danckwerts LJ), 691-692 (Diplock LJ). Thus article 31(1) confers immunity
on diplomatic agents currently in post in respect of both private and official
acts, subject to specific exceptions for the three designated categories of
private act. Under article 39(2), once a diplomatic agent’s functions have come
to an end, his immunities under article 31 will normally cease from the moment
when he leaves the territory of the receiving state. Thereafter, he remains
immune in the receiving state only with respect to “acts performed … in the
exercise of his functions as a member of the mission”. This is commonly known
as the “residual” immunity. It is one of four cases in which, in contrast to
the immunity under article 31, a protected person’s immunity is limited to
official acts, the others being (i) the immunity conferred on a diplomatic
agent who is a national of or permanently resident in the receiving state,
which is limited to “official acts performed in the exercise of his functions”
(article 38(1)); (ii) the immunity conferred on administrative and technical
staff of a mission, which “shall not extend to acts performed outside the
course of their duties” (article 37(2)); and (iii) domestic staff of the
mission, whose immunity is confined to “acts performed in the course of their
duties” (article 37(3)). The same distinction applies to consular officers and
employees under article 43 of the parallel Vienna Convention on Consular
Relations (1963). Their immunity is limited to “acts performed in the exercise
of consular functions”.
19.
Article 31(1)(c) is one of three carefully framed exceptions to the general
immunity from civil jurisdiction conferred on diplomatic agents in post. The
exception applies if both of two conditions are satisfied: (i) that the action
relates to a “professional or commercial activity exercised by the diplomatic
agent”, and (ii) that the exercise of that activity was “outside his official
functions”. These are distinct requirements. If the relevant acts were within
the scope of the diplomat’s official functions, the enquiry ends there. He is
immune. Moreover, he will retain the residual immunity in respect of them even
after his posting comes to an end. But if he is still in post and the relevant
activity is outside his official functions, the operation of the exception will
depend on whether it amounts to a professional or commercial activity exercised
by him.
20.
Accordingly, the first question is what are a diplomatic agent’s
official functions. The starting point is the functions of the mission to which
he is attached. They are defined in article 3 of the Convention, and comprise
all the classic representational and reporting functions of a diplomatic
mission. It is, however, clear that the official functions of an individual
diplomatic agent are not necessarily limited to participating in the activities
defined by article 3. They must in the nature of things extend to a wide
variety of incidental functions which are necessary for the performance of the
general functions of the mission. But whether incidental or direct, a
diplomatic agent’s official functions are those which he performs for or on
behalf of the sending state. The test is whether the relevant activity was part
of those functions. That is the basis on which the courts in both England and
the United States have approached the residual immunity in article 39(2): see,
as to England, Wokuri v Kassam [2012] ICR 1283, at paras 23-26 (Newey J)
and Abusabib v Taddese [2013] ICR 603, at paras 29-34 (Employment Appeal
Tribunal); and as to the United States, Baoanan v Baja 627 F Supp 2d 155
(2009) at paras 3-5; Swarna v Al-Awadi 622 F 3d 123 (2010) (2nd Circuit
Court of Appeals) at paras 4-10. I think that it is correct, and equally
applicable to the corresponding expression in article 31(1).
21.
If the relevant activity was outside the diplomatic agent’s official
functions, the next question is whether it amounts to a professional or
commercial activity exercised by him. The following points should be made about
this:
(1)
An activity is not the same as an act. Article 31(1)(c) is concerned
with the carrying on of a professional or commercial activity having some
continuity and duration, ie with a course of business.
(2)
But it is not only a question of continuity or duration. It is also a
question of status. In the ordinary meaning of the words, the “exercise” of a
“professional or commercial activity” means practising the profession or
carrying on the business. The diplomatic agent must be a person practising the
profession or carrying on (or participating in carrying on) the business. He
must, so to speak, set up shop. The position is even clearer in the equally
authentic French text, where the word “exercer” means “to practise, follow,
pursue, carry on (profession, business)”: J E Mansion, Harrap’s Standard
French and English Dictionary, ed Ledésert, (rev 1980).
(3)
This is confirmed by article 42, which provides that a diplomatic agent
“shall not in the receiving state practise for personal profit any professional
or commercial activity.” Article 42 uses the same phrase, “professional or
commercial activity”, as article 31(1)(c). The difference between the language
of the exception in article 31(1)(c) and that of the prohibition in article 42
is simply the use in the latter of the expression “for personal profit” in
place of “outside his official functions”. The essential point, however, is
that in both articles, the reference is to the diplomat carrying on or
participating in a professional or commercial business. This is what Laws J
decided in the only English case on article 31(1) until this one: Propend
Finance Pty Ltd v Sing (1997) 111 ILR 611, 635-636 (the point did not arise
in the Court of Appeal). I think that he was right.
(4)
As I shall demonstrate below, this is precisely what the draftsmen of
the Convention and the states who agreed it intended to achieve.
(5)
There are obvious reasons why an exception such as that in article
31(1)(c) should have been limited to someone participating in a professional or
commercial business. It is inherent in the concept of jurisdictional immunity that
it will shelter a serving diplomat (and in some circumstances a former
diplomat) against legal proceedings in the receiving state. It is not inherent
in that concept that the immunity will enable him to exercise a distinct
business activity in competition with others while sheltering him from the
modes of enforcing the corresponding liabilities which are an ordinary incident
of such an activity.
(6)
A wider scope for exception (c) would expose diplomatic agents in post
in the United Kingdom (and potentially British diplomatic agents abroad) to
local proceedings not only in respect of their employment of domestic servants
but in respect of any transaction in the receiving state for money or money’s
worth, save perhaps for those which were isolated or uncharacteristic. The
substantial effect would be to limit the immunity to acts done in the exercise
of the diplomat’s official functions, even in the case of a diplomat in post.
The immunity in respect of non-official acts would mean very little, for every
purchase that a diplomat might make in the course of his daily life from a
business carried on by someone else would be a commercial activity exercised by
the diplomat for the purposes of article 31(1)(c). This would be contrary to
the carefully constructed scheme of the Convention for different categories of
protected person.
The authorities
22.
Apart from the decision of Laws J in Propend Finance Pty Ltd v Sing,
to which I have just referred, the authorities most directly in point are
decisions of the federal courts of the United States. These are a valuable
source of law in this area, because of the long-standing engagement of the US
courts with international law and the existence of a highly developed body of
domestic foreign relations law belonging to the same tradition as our own. The
statutory background is substantially the same as it is in the United Kingdom.
Section 5 of the US Diplomatic Relations Act 1978 provides that any action or
proceeding brought against an individual entitled to immunity from such action
or proceeding under the Vienna Convention on Diplomatic Relations shall be
dismissed. During the passage of the Act, the State Department advised Congress
that the exception in article 31(1)(c) merely exposed diplomats to litigation
based upon activity expressly prohibited in article 42: Diplomatic Immunity:
Hearings on S 476, S 477, S 478, S 1256 S 1257 and HR 7819 (Senate Committee on
the Judiciary, Subcommittee on Citizens’ and Shareholders Rights and Remedies, 95th
Cong, 2d Sess 32 (1978). This advice, as I have pointed out above, was in
accordance with both the language and purpose of the Convention. It is also
endorsed by the American Law Institute’s authoritative Restatement (3rd) of
the Foreign Relations Law of the United States (1986), para 464, where it
is observed (Note 9) that
“The denial of immunity in cases
arising out of private commercial or professional activities has little
significance for the United States since the United States forbids its
diplomatic officers to engage in commercial or professional activities
unrelated to their official functions, and in general does not permit such
activities by foreign diplomats in the United States.”
23.
The leading case is Tabion v Mufti (1996) 107 ILR 452, a decision
of the Fourth Circuit Court of Appeals. The plaintiff was employed for two
years as a domestic servant in the private residence of a Jordanian diplomat.
Her allegations were broadly similar to those of Ms Reyes. They included
deception, false imprisonment and persistent underpayment. In response to a
claim for diplomatic immunity, her argument was that “because ‘commerce’ is
simply the exchange of goods and services, … ‘commercial activity’ necessarily
encompasses contracts for goods and services, including employment contracts.”
The court examined the terms of the Convention and its background and
negotiating history, and upheld the claim for immunity on the principal ground
that the expression “commercial activity” “relates only to trade or business
activity engaged in for personal profit” (p 454). In reaching this conclusion,
they took account of a statement of interest submitted by the State Department,
which asserted that the exception “focuses on the pursuit of trade or business
activity; it does not encompass contractual relationships for goods and
services incidental to the daily life of the diplomat and family in the
receiving State” (p 455). But they appear to have gone rather further than the
State Department in suggesting (pp 455-456) that
“day to day living services …
incidental to daily life were also within a diplomatic agent’s official
functions.”
Since a diplomat’s acts in obtaining day to day living
services are remote from the performance of his official functions and are not
done on behalf of the sending state, for my part, I do not find it possible to
accept this last point. Even in the United States it appears to have been
rejected in cases on the residual immunities conferred by article 39(2) of the
Convention, to which I have already referred (para 20). But on their principal
ground, I think that the Court was correct.
24.
The decision in Tabion v Mufti has consistently been followed in
other circuits on materially similar facts: Gonzales Paredes v Vila and
Nielsen, 479 F Supp 2d 187 (2007), Sabbithi v Al Saleh, 605 F Supp
2d 122 (2009), vacated in part on other grounds, no 07 Civ 115 (DDC Mar S
2011); Montuya v Chedid, 779 F Supp 2d 60 (2011); Fun v Pulgar,
993 F Supp 2d 470 (2014). It is also endorsed by Professor Denza: Diplomatic
Law, 4th ed (2016), at pp 251-253.
25.
It is true that the Appeals Court’s conclusion on the principal point
was influenced by the State Department’s statement of interest and that the
constitutional division of powers in the United States requires the courts to
show “substantial deference” to the executive’s views on such matters. But,
like Lord Dyson MR in the Court of Appeal, I do not regard this as undermining
the authority of the decision. In the first place it is clearly established
doctrine in the United States that the views of the executive, although
commanding respect, are not determinative: see Sumitomo Shoji America Inc v
Avagliano 457 US 176, 184-185 (1982), United States v Stuart 489 US
353, 369 (1989). Secondly, the US Court of Appeals plainly formed its own view
on the questions at issue. Thirdly, the Department’s statement of interest, a
copy of which has been put before us, is concerned mainly to put the
negotiating history before the court. Otherwise it simply analyses the relevant
legal principles, very much as the submissions of the Secretary of State as
intervener have done on this appeal.
Diplomatic and state immunity
26.
Mr Otty QC, who appeared for Ms Reyes, sought to reinforce his case on
article 31(1)(c) by pointing out that under the restrictive theory of state immunity,
the immunity of states is limited to acts which they perform as states. He
argues that the functional analogies between state immunity and diplomatic
immunity mean that a corresponding rule should apply to the latter, ie that any
act done in a purely private capacity must be regarded as “commercial”, or at
any rate as lying outside the permissible scope of the immunity. This argument
in effect treats the words “outside his official functions” in article 31(1)(c)
of the Convention on Diplomatic Relations as explanatory of the expression
“professional or commercial activities” and deprives the latter of any
independent effect.
27.
Manifestly, diplomatic and state immunity have a number of points in
common. Both are immunities of the state, which can be waived only by the
state. Both may extend to individual agents of the state, acting as such. Both
are creatures of international law. And, although only diplomatic immunity has
been codified by treaty, the embryonic United Nations Convention on Jurisdictional
Immunities of States is generally regarded as an authoritative statement of
customary international law on the major points which it covers. These factors
led Laws J, in Propend Finance Pty Ltd v Sing (1997) 1 ILR 611, 633-634
to suggest that “the law relating to diplomatic immunity is not free-standing
from the law of sovereign or state immunity, but is an aspect of it”, and to
cite with apparent approval a dictum of Jenkins LJ in Baccus SRL v Servicio
National Del Trigo [1957] 1 QB 438, 470 to the effect that the protection
accorded to a diplomat under the Diplomatic Privileges Act 1708 (then in force)
could not be greater than that accorded to a foreign sovereign.
28.
However, the analogy should not be pressed too far. In some significant
respects, the immunities of diplomatic agents are wider than those of the
state. This is because their purpose is to remove from the jurisdiction of the
receiving state persons who are within its territory and under its physical
power. Human agents have a corporeal vulnerability not shared by the
incorporeal state which sent them. Section 16 of the State Immunity Act 1978,
which defines the ambit of state immunity in the United Kingdom, and article 3
of the UN Convention on the Jurisdictional Immunities of States, both provide
that the rules relating to state immunity are not to affect diplomatic
immunity. These provisions are necessary because, as Professor Denza points out
in Diplomatic Law, 4th ed (2016), 1.
“As international rules on state
immunity have developed on more restrictive lines, there has always been a
saving for the rules of diplomatic and consular law and an increasing
understanding that although these sets of rules overlap they serve different
purposes and cannot in any sense be unified.”
29.
For present purposes, the most significant difference in the ambit of
the two categories of immunity concerns the treatment of acts of a private law
character. Section 3(1)(a) of the State Immunity Act 1978, which defines the
ambit of state immunity in the United Kingdom, provides that a state is not
immune in respect of proceedings relating to a “commercial transaction entered
into by the state”. For this purpose, a commercial transaction is a
“transaction or activity (whether of a commercial, industrial, financial,
professional or other similar character) into which a state enters or in which
it engages otherwise than in the exercise of sovereign authority”: section
3(3)(c). The corresponding provisions of the United Nations Convention on
Jurisdictional Immunities of States are in almost identical terms: see articles
2(1)(c) and 10. In Playa Larga (Owners of Cargo lately laden on board) v I
Congreso del Partido (Owners) [1983] AC 244, 267, Lord Wilberforce, after
reviewing the national and international authorities, held that the section
gave statutory effect to the distinction in international law between acts jure
imperii and acts jure gestionis. Its application depended on
“whether the relevant act(s) upon
which the claim is based, should, in that context, be considered as fairly
within an area of activity, trading or commercial, or otherwise of a private
law character, in which the state has chosen to engage, or whether the relevant
act(s) should be considered as having been done outside that area, and within
the sphere of governmental or sovereign activity.”
30.
The difficulty about the appellant’s proposed analogy between state and
diplomatic immunity is that the immunity of a diplomat in post, unlike that of
a state, unquestionably extends to some transactions which are outside his
official functions, and therefore almost inevitably of a private law character.
I have drawn attention above (paras 17-18) to the distinction which runs
through the Convention on Diplomatic Relations and the parallel Convention on
Consular Relations, between those immunities which are limited to acts
performed in the course of a protected person’s official functions and those
enjoyed by diplomatic agents in post, which are not so limited. It is plain
from this scheme that the exception for “commercial activities” exercised by a
diplomatic agent is not simply another way of excepting acts in the performance
of the diplomat’s official functions. Moreover, the immunities of a diplomatic
agent in post are extended by article 37(1) of the Convention to his family,
who will generally have no official functions.
31.
It is right to add that contracts of employment are not treated as a
commercial transaction for the purposes of the State Immunity Act 1978: see
section 3(c). They are subject to a distinct code under section 4, which
provides that subject to specified exceptions a state is not immune as respects
proceedings relating to a contract of employment made in or to be performed in
the United Kingdom. There are broadly corresponding provisions in article 11 of
the United Nations Convention. However, although the status of private servants
is the subject of a number of provisions of the Convention on Diplomatic
Relations, there is no provision in it corresponding to section 4 of the United
Kingdom State Immunity Act or article 11 of the United Nations Convention.
32.
These differences explain why the authorities on which Mr Otty
principally relied for this point are not of much assistance. With one
exception (to which I shall return), they were cases about state immunity, in which
the court applied the classic distinction between acts jure gestionis
and jure imperii to the employment of non-diplomatic staff. Thus in In
re Canada Labour Code [1992] 2 SCR 50 the question at issue was whether the
United States was entitled to state immunity under the Canadian State Immunity
Act in proceedings relating to the terms on which it employed Canadian citizens
at a US naval base in Canada. In particular, objection was taken to the
inclusion of a “no strike” term. The case had nothing to do with diplomatic
immunity. The issue had a superficial resemblance to the present one only
because the Canadian State Immunity Act excepted any “commercial activity” from
the scope of the immunity. It is, however, clear from the reasoning of the majority
of the Supreme Court of Canada that in the context of a statute designed to
give effect to the restrictive doctrine of state immunity in customary
international law, a “commercial activity” meant an act done otherwise than in
the exercise by the state of sovereign authority: see pp 71-73 (La Forest J).
The Court ultimately held that while some obligations of an employer (for
example, to pay wages) were enforceable in the Canadian courts as being of a
private law character, a state employer’s imposition of terms judged
appropriate to the military function of the base was an exercise of sovereign
authority and as such immune. In the United States, where the Foreign State
Immunity Act has an exception in the same terms as the Canadian Act, the same approach
has been adopted: see El-Hadad v United Arab Emirates and the Embassy of the
United Arab Emirates 216 F 3d 29; Park v Shin 313 F 3d 1138 (9th Cir
2002), at paras 27-36.
33.
The exception is Fonseca v Larren (30 January 1991), a decision
of the Supreme Court of Portugal, reported in State Practice regarding State
Immunities (Council of Europe, 2006). This was a true case of diplomatic
immunity, in which the Court held that article 31 of the Convention on
Diplomatic Relations did not apply to the employment of a domestic servant in
the private residence of a French diplomatic agent. The Court did not claim to
be applying the exception in article 31(1)(c). Instead they applied to the
Convention a principle sanctioned by the Portuguese Civil Code in the case of
domestic legislation, which called for what the court regarded as an “extensive
interpretation of this precept [jurisdictional immunity] in keeping with its
spirit, going beyond its letter and the ‘ratio legis’ that determined it.” On
that basis, they appear to have recognised an implied additional exception to
the immunity for matters within the jurisdiction of the Portuguese Labour
Courts, on the ground that such acts would not constitute exercises of
sovereign authority under the restrictive doctrine of state immunity. It is
apparent that the Portuguese court proceeded on domestic law principles of
construction which would not be applied to a treaty in England (or
internationally), and on the basis of an analogy with state immunity which is
difficult to support on any generally accepted principles of international law.
The travaux
34.
These conclusions are confirmed by an examination of the travaux
préparatoires.
35.
Of the three exceptions in article 31(1), only (a), relating to private
dealings with immovable property in the receiving state, had been recognised by
customary international law before the Convention. Exceptions (b) and (c) were
matters on which states had not previously been agreed, and exception (c) was
particularly controversial. It had not been included in the draft articles
submitted by the Special Rapporteur (Mr Sandstrőm) at the outset of the
process. It was introduced by amendment by the Austrian Commissioner on 22 May
1957 in the course of the Ninth Session: see Yearbook of the International
Law Commission 1957, i, 97, at paras 70-81. As originally introduced, it
was confined to professional activities. This was said to be akin to article 24
of the Harvard draft articles of 1932, which referred to a person who “engages
in a business or who practises a profession”. The proposer considered that
cases to which the amendment would apply would be “comparatively rare”, and
even those who opposed it agreed with this. They opposed it on the ground that
diplomatic agents “practically never” engaged in such activities, which would
be inconsistent with the dignity of their diplomatic status. The Egyptian
Commissioner supported the amendment and proposed to add the reference to a
“commercial activity”:
“If a diplomatic agent engaged in
a professional or commercial activity - the word ‘commercial’ should
undoubtedly be inserted in the amendment - he should enjoy no immunity, but be
treated on precisely the same footing as other persons who practised the same
profession or engaged in the same commercial activities … The dignity itself of
a diplomatic agent required that he should not engage in activities outside his
official duties.”
He then proposed the text of what became article
31(1)(c), which was adopted.
36.
In May 1958, the Special Rapporteur reported to the Commission on
observations received from governments. He reported that the United States had
opposed the inclusion of exception (c). But the Special Rapporteur proposed
that it should be retained, observing:
“It would be quite improper if a
diplomatic agent, ignoring the restraints which his status ought to have
imposed upon him, could, by claiming immunity, force the client to go abroad in
order to have the case settled by a foreign court.”
Commenting on the suggestion of the Australian government
that “commercial activity “appears to require some definition”, he observed:
“the use of the words ‘commercial
activity’ as part of the phrase ‘a professional or commercial activity’
indicates that it is not a single act of commerce which is meant [but] a
continuous activity.”
The Special Rapporteur’s comment was reviewed in the
course of the Tenth Session in 1958: Yearbook of the International Law
Commission, 1958, i, 244 (paras 26-34). It was suggested by the
Czechoslovakian commissioner in response to the commentary on exception (c)
that the text might in fact cover an isolated commercial transaction. Sir
Gerald Fitzmaurice (Rapporteur for the Session) questioned this:
“Paragraph 1(c) of the
article applied to cases where a diplomatic agent conducted a regular course of
business ‘on the side’. Such isolated transactions as, for instance, buying or
selling a picture, were precisely typical of the transactions not subject to
the civil jurisdiction of the receiving State. Annoying as it might be for the
other parties to such transactions in the event of a dispute, it was essential
not to except such transactions from the general rule for, once any breach was
made in the principle, the door would be open to a gradual whittling away of
the diplomatic agent’s immunities from jurisdiction.”
In the result, the observation in the commentary was
deleted, the consensus being that the text was clear and the observation
unnecessary. The report on the session to the General Assembly (ibid, ii, 98)
commented on exception (c) in the following terms:
“The third exception arises in the
case of proceedings relating to a professional or commercial activity exercised
by the diplomatic agent outside his official functions. It was urged that
activities of these kinds are normally wholly inconsistent with the position of
a diplomatic agent, and that one possible consequence of his engaging in them
might be that he would be declared persona non grata. Nevertheless, such
cases may occur and should be provided for, and if they do occur the persons
with whom the diplomatic agent has had commercial or professional relations
cannot be deprived of their ordinary remedies.”
37.
Article 42 was inserted at a very late stage, by an amendment proposed
by the Colombian delegation at the international conference of March and April
1961 which immediately preceded the adoption of the final text: United
Nations Conference on Diplomatic Intercourse and Immunities, Official Records,
i, 172 (paras 24-27), 211-213 (paras 1-37). The reason advanced by the proposer
of the amendment was that otherwise what became article 31(1)(c) might be read
as implicitly authorising the exercise of professional or commercial
activities, albeit on the basis that it was not immune. Everyone agreed that
that would be incompatible with diplomatic status. It was therefore proposed
that the Convention should affirm in a separate article the existing
understanding that the carrying on of a business or profession by a diplomatic
agent in the territory of the receiving state was incompatible with diplomatic
status. The proposer considered that it was desirable to limit the occasions on
which exception (c) would arise by avoiding a situation in which
“the diplomatic agent would be
acting simultaneously in two different capacities, only one of which was
covered by diplomatic privileges and immunities.”
The discussion which followed showed that the principle
was generally accepted, on the footing that the prohibited activities covered
what the Ecuadorian delegate called “the exercise of an outside gainful
activity”, and the delegate of Ceylon “a regular professional activity from
which a permanent income was derived, and not an occasional activity, particularly
of a cultural character.” There was general agreement that it would not extend
to occasional activities such as lecturing, even if paid. All the participants
took it for granted that the activity which gave rise to the exception in
article 31(1)(c) was the same as the activity which was treated as incompatible
with the status of a diplomatic agent in article 42.
38.
From this history, three points can be extracted:
(1)
The activities covered by articles 31(1)(c) and 42 were intended to be
the same.
(2)
They were activities involving the assumption by a diplomatic agent of a
dual status, by which incompatible occupations were being pursued by the same
person.
(3)
Occasions for the operation of either provision were expected to be very
rare.
The trafficking dimension
39.
The Protocol to Prevent, Supress and Punish Trafficking in Persons,
Especially Women and Children (Palermo, 2000) supplements the United Nations
Convention against Transnational Organised Crime. Article 3 defines
“trafficking in persons” as
“the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat or use of
force or other forms of coercion, of abduction, of fraud, of deception, of the
abuse of power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another person, for the purpose of exploitation. Exploitation shall include, at
a minimum, the exploitation of the prostitution of others or other forms of
sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs.”
Article 5 requires state parties to establish trafficking
as a criminal offence and to ensure that their legal systems afford victims the
possibility of obtaining compensation. The Protocol has been ratified by 168
states, including the United Kingdom and Saudi Arabia, and by the European
Union.
40.
It is in principle possible for a rule of customary international law to
be displaced by another rule of a higher order, or for a treaty obligation to
be displaced by a peremptory norm (jus cogens) of international law, ie
by a conflicting rule of international law permitting no derogation: see, as to
treaty obligations, article 53 of the Vienna Convention on the Law of Treaties.
But Mr Otty QC expressly disclaimed reliance on any such principle. He was in
my view right to do so, for reasons which should be mentioned since they have a
bearing on his other arguments. Diplomatic immunity, like state immunity, is an
immunity from jurisdiction and not from liability. Its practical effect is to
require the diplomatic agent to be sued in his own country, or in respect of
non-official acts in the receiving state, once his posting has ended. There is
therefore no conflict between a rule categorising specified conduct as
wrongful, and a rule controlling the jurisdictions in which or the time at
which it may properly be enforced. It was for this reason that in Jones v
Saudi Arabia [2007] 1 AC 270, Lord Bingham (para 24) and Lord Hoffmann
(para 44) both adopted the observation of Hazel Fox in the then current edition
of The Law of State Immunity (2002), at p 525, that state immunity “does
not contradict a prohibition contained in a jus cogens norm but merely
diverts any breach of it to a different method of settlement.” In Germany v
Italy: Greece Intervening (Jurisdictional Immunities of the State) [2012] ICJ Rep 99, the International Court of Justice endorsed the Appellate
Committee’s reasoning on this point, and gave it what is perhaps its clearest
expression at paras 92-97. Rejecting an argument based on the peremptory
character of the prohibition of war crimes and crimes against humanity, the
court put the matter in this way:
“This argument therefore depends
upon the existence of a conflict between a rule, or rules, of jus cogens, and
the rule of customary law which requires one State to accord immunity to
another. In the opinion of the Court, however, no such conflict exists.
Assuming for this purpose that the rules of the law of armed conflict which
prohibit the murder of civilians in occupied territory, the deportation of
civilian inhabitants to slave labour and the deportation of prisoners of war to
slave labour are rules of jus cogens, there is no conflict between those
rules and the rules on state immunity. The two sets of rules address different
matters. The rules of state immunity are procedural in character and are
confined to determining whether or not the courts of one state may exercise
jurisdiction in respect of another state. They do not bear upon the question
whether or not the conduct in respect of which the proceedings are brought was
lawful or unlawful … The application of rules of state immunity to determine
whether or not the Italian courts have jurisdiction to hear claims arising out
of those violations cannot involve any conflict with the rules which were
violated.”
The Court went on to point out that the existence of an
international law obligation to provide for the recovery of compensation made
no difference to this analysis:
“Nor is the argument strengthened
by focusing upon the duty of the wrongdoing state to make reparation, rather
than upon the original wrongful act. The duty to make reparation is a rule
which exists independently of those rules which concern the means by which it
is to be effected. The law of state immunity concerns only the latter; a
decision that a foreign state is immune no more conflicts with the duty to make
reparation than it does with the rule prohibiting the original wrongful act …
To the extent that it is argued that no rule which is not of the status of jus
cogens may be applied if to do so would hinder the enforcement of a jus
cogens rule, even in the absence of a direct conflict, the Court sees no
basis for such a proposition. A jus cogens rule is one from which no
derogation is permitted but the rules which determine the scope and extent of
jurisdiction and when that jurisdiction may be exercised do not derogate from
those substantive rules which possess jus cogens status, nor is there
anything inherent in the concept of jus cogens which would require their
modification or would displace their application.”
41.
In these circumstances, Mr Otty wisely confined his case on this aspect
of the appeal to the proposition that the international obligation to recognise
a crime and a tort of human trafficking affected the scope of the exception for
professional or commercial activities in article 31(1)(c) of the Convention on
Diplomatic Relations. The argument is (i) that trafficking is treated by the
Palermo Protocol as an inherently commercial activity, in which an employer
participates by employing the victim; and (ii) that the profit element, if it
is required, is established by the financial benefit which the employer
generally obtains by paying less than the going rate or the legal minimum or
nothing at all.
42.
The fundamental difficulty about this argument is that it involves
modifying the concept of a “professional or commercial activity” in the light
of the growing concern of international law with human trafficking subsequent
to the Convention on Diplomatic Immunity. There are limited circumstances in
which this is a legitimate technique of interpretation, but it is subject to
principled limits. Article 31(2) and (3)(a) and (b) of the Vienna Convention on
the Law of Treaties envisage that a treaty may in appropriate cases be
interpreted in the light of a linked treaty, whether made at the same time or
subsequently. Linked treaties are generally interpretative or explanatory of
the principal treaty. It is not suggested that the principle applies here. But
a broader principle is applied by article 31(3)(c) of the Vienna Convention on
the Law of Treaties, which requires account to be taken of “any relevant rules
of international law applicable in the relations between the parties.” The
effect is to make limited provision for the interpretation of treaties in the
light of subsequent developments of international law. The circumstances in
which it applies are that the relevant provision of the principal treaty was
ambulatory, in the sense that it envisaged that future changes occurring after
it was made would affect its application. The example commonly cited is the
International Court of Justice’s advisory opinion on Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa)
[1971] ICJ Rep 16. Article 22(1) of the Covenant of the League of Nations
provided for the grant of mandates for the administration of former colonies
and territories “which are inhabited by peoples not yet able to stand by
themselves under the strenuous conditions of the modern world”. The mandate
territory was to be administered on the “principle that the wellbeing and
development of such peoples form a sacred trust of civilisation.” The Court
interpreted article 22 in the light of the subsequent development in
international law of the concept of self-determination:
“Mindful as it is of the primary
necessity of interpreting an instrument in accordance with the intentions of
the parties at the time of its conclusion, the court is bound to take into
account the fact that the concepts embodied in article 22 of the Covenant -
‘the strenuous conditions of the modern world’ and ‘the wellbeing and
development’ of the peoples concerned - were not static, but were by definition
evolutionary, as also, therefore, was the concept of the ‘sacred trust’. The
parties to the Covenant must consequently be deemed to have accepted them as
such.” (para 53)
The intention that the principal treaty should accommodate
future change must therefore be found within the treaty itself. This is
fundamental, for article 31(3)(c) of the Vienna Convention on the Law of
Treaties is a principle of interpretation. It is not a principle of revision.
With respect, I cannot accept that Oil Platforms (Islamic Republic of Iran v
United States of America) [2003] ICJ 161, which Lord Wilson cites as
illustrative of a wider principle, has any bearing on the point. The
International Court of Justice did not in that case interpret the 1955 Treaty
of Amity between Iran and the United States in the light of a subsequent and
unrelated treaty or any other subsequent developments in international law. It
interpreted an exception in the treaty for “measures … necessary to protect
[the] essential security interests of the parties” in the light of customary
international law relating to the use of force and the right of self-defence:
see paras 41, 44, 73. The two concepts were clearly closely related and the
relevant principles of customary international law were of very long standing.
43.
The first objection to the argument in this case is that no such
intention can be discerned in article 31(1)(c) of the Convention on Diplomatic
Relations. The concept of a “professional or commercial activity” exercised by
a diplomatic agent is not ambulatory. The expression does not express a general
value whose content may vary over time. It is a fixed criterion for
categorising the facts, whose meaning and effect was extensively discussed
during the drafting and negotiation of the text. There is no reason to suppose
that it refers today to anything other than what it referred to in 1961.
44.
Secondly, the international obligations of states in relation to human
trafficking are embodied in treaties, primarily in the Palermo Protocol, which
is the only relevant treaty to which both the United Kingdom and Saudi Arabia
are parties. The Protocol is not in any way concerned with jurisdictional
immunity. Its sole relevance is as a source of international policy against
human trafficking. But it does not follow from that policy that diplomatic
immunity cannot be available in cases of trafficking. The intention of the
parties to the Protocol that trafficking should be unlawful is entirely
consistent with the subsistence of rules determining where and when civil
claims or criminal charges may properly be determined. For the same reason,
international law immunities have been held to be available in cases involving
torture (Jones v Saudi Arabia), breach of the laws of armed conflict (Jurisdictional
Immunities of the State) or crimes against humanity (Democratic Republic
of the Congo v Belgium (Arrest Warrant of 11 April 2000)).
45.
Third, nothing in the Palermo Protocol requires that human trafficking
must be classified as a “commercial activity” when it would not otherwise be,
whether for the purpose of diplomatic immunity or for any other purpose. The
commerciality or otherwise of the activities defined as trafficking are
irrelevant to the definition. As defined in article 3 of the Protocol,
trafficking may consist in a number of different operations, including the
recruitment, transportation, transfer, harbouring and receipt of persons. It
may also consist in fraud, deception or the abuse of power or vulnerability.
Commonly, a chain of intermediaries will be involved, each participant doing
some of these things but not necessarily all of them. It is not inherent in any
of these acts that they will necessarily be done in the exercise of a
commercial activity. That will depend on the precise circumstances. In
particular, it will depend on the nature of each participant’s involvement.
Thus one would expect an intermediary who recruits or transports a trafficked
person for money to be exercising a commercial activity. The same is likely to
be true of someone who receives a trafficked person for, say, prostitution.
These are business operations. But the mere employment of a domestic servant on
exploitative terms is not a commercial activity, and the fact that it is
unlawful, contrary to international policy and morally repugnant cannot make it
into one. One can readily imagine circumstances in which someone who employed a
trafficked person as a domestic servant had obtained her through a chain of
intermediaries engaged in human trafficking as a business, although that does
not appear to have happened in Ms Reyes’ case. In such a case, the employer may
incur criminal or civil liability along with the other participants who brought
the victim to his door. But his liability would be for the trafficking. It
would not without more make him a joint participant in the intermediaries’
business. Doubtless, without customers professional traffickers would have no
business, but that does not make the customers into practitioners of a
commercial activity. By way of analogy, if I knowingly buy stolen property from
a professional fence for my personal use, both of us will incur criminal
liability for receiving stolen goods and civil liability to the true owner for
conversion. The fence will also be engaging in a commercial activity. But it
does not follow that the same is true of me.
46.
For the same reason, it cannot matter that the trafficking may enable
the ultimate employer to pay the victim less than the proper rate or nothing at
all. To pursue the analogy, I will no doubt pay the fence less for the stolen
goods than I would have had to pay for the same goods to an honest shopkeeper.
But that does not alter the characterisation of my purchase, which is no more
the exercise by me of a commercial activity in the one case than it is in the
other. Likewise, the employment of a domestic servant to provide purely
personal services cannot rationally be characterised as the exercise of a
commercial activity if she is paid less than the going rate or the national
minimum wage, but not if she is paid more. One might perhaps loosely say that
the victim is being treated as a commodity. But a figure of speech should not
be confused with a legal concept.
47.
Finally, the implications of human trafficking for the scope of
diplomatic immunity have been considered on a number of occasions by the
federal courts of the United States. On its facts, Tabion v Mufti may
well have been a case of trafficking, and Gonzales Paredes v Vila and
Nielsen, 479 F Supp 2d 187 (2007) almost certainly was. But the point
appears to have been raised overtly for the first time in Sabithi v Al Saleh
605 F Supp 2d 122, a decision of the District Court for the District of
Columbia. The court rejected the argument that the employer’s participation in
trafficking constituted a commercial activity within article 31(1)(c),
essentially because it made no difference to the characterisation of the act of
employing or maltreating a domestic servant, even on exploitative terms and at
“marginal wages”. The same view was taken in Montuya v Chedid, 779 F
Supp 2d 60 (2011) and Fun v Pulgar, 993 F Supp 2d 470 (2014) where the
facts were similar. The rare cases from European jurisdictions point to the
same answer. In Pfarr v Anonymous 17 SA 1468/11 (ILDC 1903) (2011),
which concerned the exploitation of a domestic servant in circumstances very
like those of the present case, the Berlin-Brandenburg Court of Appeal declined
to recognise an exception for grave violations of human rights. (The appeal was
allowed by the Federal Employment Court, NZA 2013, 343, only because by the
time that the appeal was heard, the diplomat was no longer in post). The
possibility that the commercial activities exception might apply does not seem
to have occurred to the court. In Mohamed X v Fettouma Z (17 October
2012), 11/01255 Legifrance, it was considered by the Court of Appeal of
Montpellier in a case where the employer had made considerable financial
savings by his exploitation of a Moroccan housemaid. The argument was rejected
on the ground that the arrangements for the management of a diplomat’s private
residence and family life “could not be regarded as a professional or
commercial activity outside his official functions.”
Application to Ms Reyes’ case
48.
The first question is whether the employment or treatment of Ms Reyes by
the Al-Malkis were acts performed in the course of Mr Al-Malki’s “official
functions.” In my judgment, it is clear that they were not. Difficult questions
of fact may arise when a private servant is employed in a diplomat’s residence
for purposes connected with the work of the mission. But on any view Mr
Al-Malki’s official functions cannot have extended to the employment of
domestic staff to do the cleaning, help in the kitchen and look after his
children. These things were not done for or on behalf of Saudi Arabia. The
Court of Appeal (para 19) thought that such activities were “conducive” to the
performance of his official functions. No doubt they were. But that could be
said of almost anything that made the personal life of a diplomatic agent
easier. It does not make the employment of Ms Reyes part of Mr Al-Malki’s
official functions as a diplomatic agent. Since Mr Al-Malki’s functions as a
diplomatic agent have now come to an end, he is no longer entitled to any
immunity under article 31. The only immunity available to him is the residual
immunity under article 39(2). It follows from the fact that the relevant acts
were not done in the course of his official functions that that immunity cannot
apply. Likewise, Mrs Al-Malki is no longer entitled to any immunity at all.
49.
Does it matter that Mr and Mrs Al-Malki were entitled to immunity under
article 31(1) and 37(1) respectively at the time when the present proceedings
were commenced? In my opinion it does not. An action brought against persons
entitled to diplomatic immunity is not a nullity. It is merely liable to be
dismissed. There are therefore valid proceedings currently on foot. Diplomatic
immunity is a procedural immunity. The procedural incidents of litigation
normally fall to be determined by a court as at the time of the hearing. Thus a
waiver of immunity after the commencement of proceedings would dispose of any
diplomatic immunity which previously existed. The result of a change in the
defendant’s status is not materially different. A striking illustration is
supplied by the decision of the Court of Appeal in Empson v Smith [1966]
1 QB 426. Proceedings were begun against Mr Smith, a member of the
administrative staff of the Canadian High Commission in London, claiming damages
under a private tenancy agreement. At the time when the proceedings were
commenced he enjoyed the same immunity under the Diplomatic Immunities
(Commonwealth Countries and Republic of Ireland) Act 1952 as the diplomatic
staff of an ambassador. Under the Act of 1708, that immunity was absolute. By
the time of the hearing, however, the Acts of 1708 and 1952 had been replaced
by the Diplomatic Privileges Act 1964, which conferred immunity on
administrative and technical staff only in respect of acts done in the course
of their duties. Mr Smith was held to be entitled only to the limited immunity
under the Act of 1964. As Diplock LJ point out by way of analogy, at p 439, “if
the defendant had ceased to be en poste while the plaint was still
outstanding the action could then have proceeded against him.” Indeed, that was
the position in Shaw v Shaw [1979] F 62. The wife filed a petition for a
dissolution of her marriage to a diplomat attached to the United States
embassy. At the time, he was immune, but the petition was allowed to proceed
once the husband’s posting came to an end and he left the United Kingdom. The
same view has been taken in other jurisdictions where similar issues have
arisen: see Denza, op cit, 257-258.
50.
The respondents’ main answer to these points is that Mr Al-Malki’s
official functions extended to the employment of his domestic staff. I have
rejected that submission. But they also submit that even on the footing that
his official functions did not extend to the acts relied on by Ms Reyes, she
did not take the point in the Court of Appeal and should not be allowed to take
it here. I reject that submission also. If I thought that any injustice would
be done by allowing the point to be taken in this court, I would be in favour
of remitting the matter to the courts below. But I do not think so. The point
was reserved shortly after judgment in the Court of Appeal and was fairly taken
in the appellant’s printed case in this court. The relationship between
articles 31 and 39(2) always was relevant, since it is a fundamental part of
the scheme of the Convention. It is not suggested that the answer can turn on
any disputed point of fact. There may in due course be implications for costs,
but that is another matter.
51.
In those circumstances, the question whether the exception in article
31(1)(c) would have applied to Mr Al-Malki had he still been in post does not
strictly speaking arise. If he had still been in post, I would have held that
he was immune, because the employment and treatment of Ms Reyes did not amount
to carrying on or participating in carrying on a professional or commercial
activity. Her employment, although it continued for about two months, was
plainly not an alternative occupation of Mr Al-Malki’s. Nothing that was done
by him or his wife was done by way of business. A person who supplies goods or
services by way of business might be said to exercise a commercial activity.
But Mr and Mrs Al-Malki are not said to have done that. They are merely said to
have used Ms Reyes’ services in a harsh and in some respects unlawful way.
There is no sense which can reasonably be given to article 31(1)(c) which would
make the consumption of goods and services the exercise a commercial activity.
The European Convention on Human Rights
52.
It follows from the view that I take of the immunity claim that it is
unnecessary to deal with Ms Reyes’ alternative argument based on the European
Convention on Human Rights.
Disposal
53.
I would allow the appeal.
54.
It remains to deal with the consequential orders. The present appeal has
been decided on the assumption that the facts stated in Ms Reyes’ evidence are
true. There has been no evidence from Mr and Mrs Al-Malki, and no statement of
their case on the facts. In those circumstances, the relief sought by Mr Otty
is an order remitting the matter to the Employment Tribunal to determine
whether on the facts Mr Al-Malki’s employment and treatment of Ms Reyes were
acts done in the exercise of his functions as a member of the mission. However,
before inflicting on the parties a further round of argument on the claim to
immunity, I would wish to be satisfied that there is a real issue on that point
in the light of this Court’s judgment. As at present advised, it appears to me
that there could be such an issue only if there were a dispute about the nature
of the functions which Ms Reyes was employed to perform or, possibly, about the
circumstances in which her employment came to an end. Accordingly, unless
within 21 days written submissions are received from the parties justifying some
other course, I would declare that Mr and Mrs Al-Malki are not entitled to
diplomatic immunity in respect of the claims made by Ms Reyes in these
proceedings and remit the case to the Employment Tribunal to determine those
claims on their merits. In the case of Mr and Mrs Al-Malki, those submissions
would have to identify any subsisting issue of fact going to their claim for
immunity.
LORD WILSON: (who
agrees with Lord Sumption, save that he expresses doubts on one point, and with
whom Lady Hale and Lord Clarke agree)
55.
I agree that the appeal should be allowed by reference to the apparent
loss of immunity on the part of Mr Al-Malki (and therefore of Mrs Al-Malki)
when in August 2014 he ceased to be a member of the Saudi mission in London and
when therefore they left the UK. The loss of immunity is no more than apparent
because the appeal proceeds only on assumed facts. By reference to the facts
alleged by Ms Reyes, one can conclude that none of the actions taken by Mr
Al-Malki in relation to Ms Reyes were “acts performed by [him] in the exercise
of his functions as a member of the mission” within the meaning of article
39(2) of the 1961 Convention. But, although the court has done no more than to
assume these alleged facts to be correct, it may be that Mr and Mrs Al-Malki
take no real issue with this part of her allegations; and in those
circumstances I subscribe to the disposal proposed by Lord Sumption in para 54
above.
56.
It follows that this court will not answer in any binding form the
central question presented to it in such detail and with such conspicuous
ability: does an action instituted in the tribunal against a foreign diplomat
in the UK by his former domestic servant brought to the UK to work in his home
in (assumed) conditions of modern slavery relate “to any … commercial activity
exercised by [him here] outside his official functions” within the meaning of
article 31(1)(c) of the 1961 Convention?
57.
I am pleased that the court will not answer that question in any binding
form. Lord Sumption’s emphatic answer to the question is “no”. His answer is
(if he will forgive my saying so) the obvious answer. It may be correct. But my
personal experience has been that, the more one thinks about the question, the
less obviously correct does his answer become.
58.
By reference to five aspects of the background, let me explain myself.
59.
First, the UK confronts a significant problem in relation to the
exploitation of migrant domestic workers by foreign diplomats. Kalayaan, the
Intervener, which is the principal UK charity devoted to advising and
supporting migrant domestic workers, gives the following evidence:
(1)
Between about 200 and 250 domestic workers enter the UK each year under
a diplomatic overseas domestic worker’s visa.
(2)
The proportion of domestic workers who are the victims of trafficking is
considerably higher in diplomatic households than in other households.
(3)
Thus in one representative period 17 out of 55 referrals to the
government agency set up to identify the trafficking of domestic workers
related to diplomatic households whereas, had such referrals been in proportion
to the number of workers in other households, there would have just been one.
(4)
The explanation for the high ratio of trafficked workers in diplomatic
households is largely because perceived immunity from claims for compensation
leads diplomats to consider that they can exploit them with impunity.
(5)
The perceived immunity makes trafficking with a view to domestic
servitude a low risk, high reward activity for diplomats.
It was these concerns which led Mr Ewins QC, in his
Independent Review of the Overseas Domestic Workers Visa dated 16 December
2015, to recommend at para 165(1) that overseas domestic workers in diplomatic
households should be employed by the foreign state, which (see para 63 below)
he reasonably understood to have no civil immunity, rather than by the individual
diplomats; but the government appears to have rejected the recommendation.
60.
Second is the universality of the international community’s
determination to combat human trafficking. In para 39 above Lord Sumption
refers to the Palermo Protocol 2000 which was the product of a resolution of
the UN General Assembly to promote the evolution of an international instrument
which addressed the trafficking of women and children. The protocol, ratified
both by Saudi Arabia and the UK, contains elaborate commitments by each state
party to criminalise trafficking; to make material provision for victims in aid
of their physical, psychological and social recovery; by article 6(6), to
“ensure that its domestic legal system contains measures that offer victims of
trafficking in persons the possibility of obtaining compensation for damage
suffered”; to strengthen border controls; and so on. Then came the Council of
Europe Convention on Action against Trafficking in Human Beings, adopted in
Warsaw on 16 May 2005. As was noted in the explanatory report which accompanied
it, trafficking in human beings was a world-wide phenomenon and had become a
major scourge in Europe. The preamble to this 2005 Convention described its
purpose as being to improve the protections afforded by the Palermo Protocol.
Its detailed provisions for strong national mechanisms to identify trafficking
and for international cooperation are irrelevant. But it is noteworthy that, by
way of expansion of the requirement in article 6(6) of the Palermo Protocol
that victims should obtain compensation, the 2005 Convention made clear, in
article 15(3) and (4), that the obligation was to provide for victims to obtain
compensation “from the perpetrators” as well as from the state; and also
noteworthy that the UK claims to have discharged this obligation by, among
other things, providing the facility for application to the tribunal. In my
view it is irrelevant that, for obvious reasons, Saudi Arabia was unable to
accede (as did the UK) to the 2005 Convention. It is equally irrelevant that,
for obvious reasons, the UK was unable to ratify (as did Saudi Arabia) the Arab
Charter on Human Rights adopted by the League of Arab States on 22 May 2004,
which, by article 10(1) and (2), declared that no one should be held in servitude
under any circumstances and that trafficking in human beings for the purposes
of any form of exploitation was prohibited. The relevance of these instruments
is that they underscore the equal level of determination of the UK, of Saudi
Arabia and in effect of every state in the world to stamp out trafficking.
61.
Third: what is trafficking and, in particular, who is guilty of it? In
para 39 above Lord Sumption quotes the definition of it in article 3 of the
Palermo Protocol, repeated in article 4 of the 2005 Convention. It is the
definition in accepted use. For present purposes most of the definition can be
omitted and what remains is:
“the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of … the abuse of power or
of a position of vulnerability … for the purposes of exploitation.”
As was said in para 78 of the explanatory report which
accompanied the 2005 Convention, “the definition endeavours to encompass the
whole sequence of actions that leads to the exploitation of the victim”. As was
observed by the European Court of Human Rights in Rantsev v Cyprus and
Russia (2010) 51 EHRR 1 at para 281, the vice of trafficking is that it
“treats human beings as commodities to be bought and sold and put to forced
labour, often for little or no payment …”
62.
How apt (one therefore asks) is the analogy offered by Lord Sumption in
paras 45 and 46 above between a purchaser of stolen goods at a cheap price and
an employer, such as Mr Al-Malki, of a trafficked migrant? Neither, suggests
Lord Sumption, engages in the “commercial activity” of the thief or handler of
the goods and of the recruiter or transporter of the migrant. But another
rational view is that the relevant “activity” is not just the so-called
employment but the trafficking; that the employer of the migrant is an integral
part of the chain, who knowingly effects the “receipt” of the migrant and
supplies the specified purpose, namely that of exploiting her, which drives the
entire exercise from her recruitment onwards; that the employer’s exploitation
of the migrant has no parallel in the purchaser’s treatment of the stolen
goods; and that, in addition to the physical and emotional cruelty inherent in
it, the employer’s conduct contains a substantial commercial element of
obtaining domestic assistance without paying for it properly or at all.
63.
Fourth is the fact that, in the words of Laws J at p 633 in the Propend
case, cited above at para 27, diplomatic immunity is an aspect of state
immunity. The parties to the 1961 Convention therefore recorded in their second
recital to it that, in agreeing its terms, they had in mind the sovereign
equality of states. So it must be at least relevant to notice that, in
accordance with the movement in the doctrine of sovereign immunity in customary
international law from being absolute to being restrictive, Parliament enacted
sections 3 and 4 of the State Immunity Act 1978. Section 3(1) excludes immunity
in respect of a state’s entry into a commercial transaction, defined in
subsection (3) as, among other things, any contract for the supply of goods or
services. At the end of that subsection Parliament provided that the section
did not apply to a contract of employment between a state and an individual. In
the absence of that provision the section clearly would have applied to such a
contract. The purpose of excluding a contract of employment from the ambit of
section 3 was, so I infer, only that it required fuller treatment in a section
of its own. This is section 4, which, by subsection (1), excludes immunity in
respect of such a contract where made in the UK or where the work is to be
performed here, albeit subject to exceptions provided in later subsections. It
is true that subsection (1)(a) of section 16 of the 1978 Act purports to
exclude the application of section 4 to proceedings concerning the employment
of the members of a mission, including staff in its domestic service. But for
present purposes the subsection can be put to one side because today, in Secretary
of State for Foreign and Commonwealth Affairs v Benkharbouche, Libya v
Janah, UKSC 0062 of 2017, this court dismisses appeals against declarations
that, insofar as it bars employment-related claims against a foreign state
derived from EU law, the subsection should be disapplied and that, insofar as
it bars other such claims, it is incompatible with article 6 of the European
Convention on Human Rights.
64.
Section 5 of the Canadian State Immunity Act analogously excludes
immunity from proceedings relating to a foreign state’s commercial activity; and
in the Canada Labour Code case, cited at para 33 above, the Canadian
Supreme Court accepted at p 79 that a contract of employment was generally a
commercial activity, while holding that the proceedings for recognition of a
union’s right to represent Canadian employees at the US naval base had a
sovereign element sufficient to preserve the immunity.
65.
I cannot readily explain why proceedings relating to a contract of
employment entered into by a foreign state, for performance in the UK, will not
in principle attract immunity in circumstances in which, if the contract is
entered into by a diplomat, it will in principle attract immunity.
66.
Fifth is the purpose of diplomatic immunity, helpfully defined in the
fourth recital to the 1961 Convention as being “not to benefit individuals but
to ensure the efficient performance of the functions of diplomatic missions as
representing States”. If a person’s duties under a contract of employment made
between her and a foreign diplomat relate to the latter’s official functions,
the immunity is appropriately provided, in accordance with its purpose, by the
last four words of article 31(1)(c). But in the present case, for reasons
explained by Lord Sumption, there is no apparent link between the duties of Ms
Reyes and the official functions of Mr Al-Malki. And so if, even in that
situation, diplomatic immunity were to arise, the question would become: how
does that accord with its purpose?
67.
The major perceived problem lies, of course, in the words of article
31(1)(c), in particular of three words “… commercial activity exercised …”. The
interpretation of the article is required by article 31(1) of the Vienna
Convention on the Law of Treaties 1969 Cmnd 4140 (“the Vienna Convention”) to
be undertaken “in accordance with the ordinary meaning to be given to [its]
terms … in their context and in the light of its object and purpose”. So the
focus is on the ordinary meaning of the words; and the purpose of the 1961
Convention is relevant only to the extent that it throws light upon their
ordinary meaning. I am persuaded that, when agreeing to the terms of the 1961
Convention, the parties would have rejected any suggestion that the proceedings
brought by Ms Reyes related to any commercial activity exercised by Mr
Al-Malki. I am, with respect to Lord Sumption’s contrary opinion expressed in
para 42 above, less persuaded that, even if (which is debatable) article 31 of
the 1961 Convention does not by its terms contemplate any future development of
its meaning, the latter would have been unable to develop over 56 years.
Article 31(3)(c) of the Vienna Convention requires the interpretation of an
article to take account of any relevant rules of international law applicable
in the relations between the parties; and the requirement is not further qualified.
The fact that in the Namibia case, which Lord Sumption there cites, the
international court discerned the contemplation of development within the terms
of the article under scrutiny does not exclude in other circumstances the
natural development of the meaning of an article in accordance with the
development of international law, in particular the emergence of an
international prohibition against trafficking; nor does the absence of an
ability to discern it within a term mean that the parties who agreed it
intended otherwise. In Oil Platforms (Islamic Republic of Iran v United
States of America) [2003] ICJ 161 the International Court of Justice was
required to determine whether, in destroying oil platforms belonging to Iran,
the US had breached an article of the Treaty of Amity which it had made with
Iran in 1955. In interpreting the article the court, at para 41, turned to
current rules of international law on the use of force without considering
whether the article had expressly contemplated future development of its
meaning. It was enough that the parties could not have intended that the
article be interpreted without reference to them.
68.
The other perceived problem is that an international treaty calls for
international interpretation “by reference to broad principles of general
acceptation” (Stag Line, Ltd v Foscolo, Mango and Co, Ltd [1932] AC 328
at 350); and never more obviously than when every state despatches its
diplomats abroad in expectation of their protection under it. So it would be a
strong thing for this court to diverge from the US jurisprudence set out in the
Tabion case, cited in para 23 above, and to adopt the robust
interpretation of article 31(1) for which Ms Reyes contends. On the other hand
it is difficult for this court to forsake what it perceives to be a legally
respectable solution and instead to favour a conclusion that its system cannot
provide redress for an apparently serious case of domestic servitude here in
our capital city. In the event my colleagues and I are not put to that test
today. Far preferable would it be for the International Law Commission,
mid-wife to the 1961 Convention, to be invited, through the mechanism of
article 17 of the statute which created it, to consider, and to consult and to
report upon, the international acceptability of an amendment of article 31
which would put beyond doubt the exclusion of immunity in a case such as that
of Ms Reyes.
LADY HALE AND LORD
CLARKE: (who agree with Lord Wilson)
69.
We agree, for the reasons given by Lord Sumption in that connection,
that if article 39 applies, then Mr and Mrs Al-Malki are not entitled to
immunity. We also agree with his proposed disposal of the case. It follows that
the proper construction of article 31(1)(c) does not arise. However, had it
arisen, we would associate ourselves with the doubts expressed by Lord Wilson
as to whether the construction adopted by Lord Sumption in this particular
context is correct especially in the light of what we would regard as desirable
developments in this area of the law.
