State immunity does not avail Saudi Prince

9 June 2014 by David Hart KC

Harb v. HRH Prince Abdul Aziz Bin Fahd Abdul Aziz, Rose J, [2014] EWHC 1807 (Ch), 9 June 2014 – read judgment

Rosalind English posted in January 2014 (here) on Jones v. the United Kingdom ((judgment here), in which the Strasbourg Court decided that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach Article 6(1) of the Convention (access to court).  The Court held that a grant of state immunity  reflected generally recognised rules of public international law and so there had been no violation.

The current claim involves a Saudi Prince, and his late father, King Fahd, but its subject matter is very different. Mrs Harb, the claimant, says she married King Fahd secretly in 1969: see the photo of them in happier times. The King agreed to provide for her after their separation, Mrs Harb says, and the Prince was involved in agreeing the details of this. Mrs Harb then brought matrimonial proceedings against the King, whilst alive, which were dismissed on grounds of state immunity. On appeal, the CA (judgment here) decided that these proceedings had come to an end by virtue of the King’s intervening death in 2005.

The present proceedings consisted of a claim for breach of contract in respect of the agreement concluded by the Prince on behalf of his father – said to involve £12m and two large Central London properties. The Prince pleaded state immunity, but this plea was dismissed by Rose J in today’s judgement.

Immunity from suit at customary international law

The immunity from suit enjoyed by a head of state is conferred by statute, but like many statutes in this field is based upon the principles of customary international law. So Rose J quickly found herself deciding what those were.

Uncontroversial principles were

• whilst the head of state was in office, the immunity from suit extended to all matters, official or private;
• when a head of state leaves office, his ongoing immunity is thereafter limited to acts amounting to the performance of his official functions whilst in office (in the inevitable Latin, immunity ratione materiae).

So far, so good. Any agreement with Mrs Harb about financial provision would be a private matter. But what is the effect of the King dying in office? Does immunity extend to his estate for private matters, even though it would not do so if the King had abdicated or been deposed?

The critical case under consideration was Pinochet No.3. Mrs Harb said that this decision of the House of Lords bound the judge to dismiss the Prince’s application. There was no difference in principle between the King standing down or being deposed, and him dying, in terms of the change in immunity from suit which results. The Prince said that Pinochet No.3 did not bear on this problem, because Pinochet was very much alive when the case was before the house of Lords. It was as much an affront to sovereign states to allow claims against a head of state after their death as it was before their death – an important justification for the principle of state immunity.

Rose J found for Mrs Harb. She was indeed bound by the decision in Pinochet (3), and there was no sensible distinction depending on whether the head of state died in or out of office. As she pointed out, the logic of the Prince’s argument is that Edward VIII (who abdicated) would have limited immunity, whereas George VI (who died as King) would have full immunity.

She therefore dismissed the Prince’s application.

Article 6

The judge proceeded to analyse the claim under Article 6. This is where the case of Jones [2014] ECHR 32 arose. The Prince argued that Article 6 had no role to play here because Strasbourg has recognised that for national courts to give effect to state immunity in accordance with international law is not a breach of Article 6. The key conclusions in Jones were that

• the grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty, and
• measures taken by a State which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court.  Just as the right of access to court is an inherent part of the fair trial guarantee in Article 6(1), so some restrictions must likewise be regarded as inherent.

Rose J drew this together at [41]

I conclude from the ECtHR’s judgment in Jones that once the relevant principles of international law have been established, the court need not carry out an additional step of considering whether the application of those principles is disproportionate when balanced against the right of access to the courts guaranteed by Article 6.

[42] If I had been satisfied therefore that generally recognised rules of public international law conferred immunity on Prince Abdul Aziz in this case, it would not have been open to me nonetheless to lift that immunity on the grounds that I thought it was a disproportionate interference with Mrs Harb’s Article 6 rights.

So that was the starting point.But Mrs Harb argued that if the judge (contrary to her above conclusion) were to find that there is an as yet undiscovered rule that the estate of a serving head of state continues to enjoy immunity ratione personae,

its concealment hitherto means that it is not a ‘generally recognised’ rule.

The Prince countered:  the doctrine of State immunity is itself generally recognised in public international rule and that doctrine must contain a rule setting the nature of the immunity of the late King Fahd. The nature of that immunity is a matter of public international law and once it has been determined, Article 6 is either trumped by public international law rule or it is not – Article 6 really does not add anything of substance to the debate.

Rose J agreed with the Prince on this. It was necessary for the Court to come to its own conclusion as to the current scope of immunity under international law, and had it agreed with the Prince on the 1st point, it was not open for the judge to set aside that conclusion by reference to Article 6(1).

But, in dicta of some significance, she then added:

That does not mean, however, that the importance of access to the courts is irrelevant to the scope, as a matter of customary international law, of the immunity enjoyed by the estate of a head of state who dies in office. In Golder v United Kingdom [1975] 1 EHRR 524, the ECtHR was considering the proper interpretation of Article 6. The Court noted that the Vienna Convention on the Law of Treaties indicates that account is to be taken of any relevant rules of international law applicable in the relations between the parties when construing the provisions of a Treaty. The Court said:

“The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally ‘recognised’ fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice.

The judge went on to accept that this principle of international law creates, as it were, a default position in favour of Mrs Harb. The upshot was, as she observed

there is certainly no settled case law requiring a departure from it and, as I have already discussed, I can see no argument of principle that would justify such a departure.

Conclusion

The principal ruling that state immunity for private matters disappeared on the death of the head of state followed from the principles in Pinochet No.3 even though there was no authority on those specific facts. Once that conclusion was reached, there was no need for the judge to go into Article 6 territory, though Article 6 inevitably will form the backdrop of international law decisions such as Jones. 

The case points up the importance of the decision in Jones. Put simply, you have to decide what the correct international law position is (stirring into the pot Article 6), but once you have decided that position, you cannot then reach for Article 6 to trump that decision

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