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A Court may look at a King

Harb v HRH Prince Abdul Aziz 2014 is probably the case with the narrowest applicability I have ever seen, but I liked it anyway.
In effect, in this case, Ms Harb was claiming that she had been secretly married to the Prince’s father in 1968, who then became King of Saudi Arabia. She brought divorce proceedings against King Fahd in January 2004, which were thrown out on the basis that King Fahd had “state immunity” more of which later.

She appealed that in 2005, but the King died before the appeal could take place, resulting in the dismissal of the appeal

[I particularly enjoy in that appeal that the Court of Appeal were much exercised by the case of Dipple v Dipple, which is a splendid name for an authority.]

Ms Harb also claimed that Prince Aziz negotiated a ‘go away’ settlement (this is not a precise or technical term) to the sum of twelve million pounds and some London properties, this being at a meeting in 2003. The money and property never showed up, and Ms Harb was now suing for breach of that agreement.

The Court did not deal at all with the issues of

1. Had Ms Harb ever been married to King Fahd?
2. Had there ever been a financial agreement between Ms Harb and Prince Aziz?
3. Had that agreement been breached?
4. Should it be enforced?

Because there was a preliminary issue, and quite a tricky one of whether any jurisdiction other than Saudi Arabia could dealt with the case at all, because of ‘state immunity’

That’s in essence the legal principle that Heads of Sovereign states are exempt from the legal jurisdiction of any other country. That exemption extends to members of their immediate household.

That principle is set out here

section 20(1) of the State Immunity Act 1978 (‘the SIA 1978’). That provides:

“20. Heads of State.
(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to—
(a) a sovereign or other head of State;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.”

The SIA 1978 therefore directs us to the Diplomatic Privileges Act 1964 (‘the DPA 1964’) which by section 2 gives effect in United Kingdom law to certain articles of the Vienna Convention on Diplomatic Relations 1961 (‘the Vienna Convention’) as set out in a Schedule to the Act. Those articles include article 39 which provides:

“Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
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.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.”
The case proceeded on some agreed assumptions, which made things a bit easier

By the time the hearing of the application came before me the issues had been substantially narrowed by the agreement of the parties that the application should proceed on the basis of some important assumptions. These assumptions, both sides stressed, apply solely for the purpose of determining this application and will have no bearing on the proceedings if they go forward. The first assumption is that at the time of any alleged discussions and agreement with Mrs Harb in 2003, the Prince was acting as a conduit for or representative of his father, King Fahd. The effect of this assumption is that it is accepted that the Prince is entitled to the same immunity from suit in respect of any agreement concluded with Mrs Harb as his father was entitled to then and as his father’s estate is entitled to now. I should make clear that this assumption has nothing to do with the issue that might arise in contract law as to whether in 2003 the Prince was contracting with Mrs Harb on his own behalf or as agent for his father – that is a different question.

The second assumption is that if Mrs Harb’s claim had been brought whilst King Fahd was alive and serving as the sovereign head of state of Saudi Arabia, both the King and the Prince would have been able to claim sovereign immunity in the English courts to defeat her claim.
If King Fahd were still alive and still King of Saudi Arabia, then the state immunity would be almost certainly apply to him in relation to these claims. [It hasn’t been fully determined, since King Fahd died prior to the appeal on this very point, but it is pretty much a racing certainty]

The state immunity WHILST you are the Head of State does not just apply to ‘things you do in an official capacity’ but to all things (i.e including in your personal life or capacity too) – that is called in Latin “immunity ratione personae” (and why on earth wouldn’t we use Latin when deciding a case in London about someone from Saudi Arabia?)
During the period when the head of state holds office, there is no doubt that his immunity from suit extends to all matters whether official or private. This is illustrated by Mighell v Sultan of Johore [1893] 1 QB 149. In that case it was alleged that the Sultan, a sovereign prince, had come to England, adopted the name Albert Baker, promised to marry the plaintiff and then broken that promise. The Court of Appeal held that he was immune from suit. Lord Esher MR, having examined the relevant case law, quoted from his own earlier judgment in The Parlement Belge 5 P.D. 197 where he had said:

“The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state, each and every one declines to exercise by means of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction.”
and went on to say that rule was ‘laid down absolutely and without any qualification’.
The next principle is that when a head of state STOPS being the head of state within their lifetime, the state immunity is just for things you did in that OFFICIAL CAPACITY(the obvious situation being that they are an elected head of state like the President of the United States, or that they abdicate) . That becomes “immunity ratione materiae”
So, for example, a former President of the United States could not be sued in any other country for things that he did in his official capacity as President, even after leaving the Whitehouse, but after he stops being President, he COULD be sued for say, punching someone in the nose in a bar fight, even if he had been President when it happened.

That was the major issue in the General Pinochet case, referred to a lot in this judgment. General Pinochet obviously appeared before the English Courts in the extradition case, when he had ceased to be the head of state of Chile and there was an application that he be extradited to Chile to face judgment for his crimes.

The scope of immunity from suit conferred on heads of state was considered by Lord Browne-Wilkinson. He set out the relevant principles as follows:

i) The immunity enjoyed by a head of state in power is a complete immunity attaching to the person of the head of state and rendering him immune from all actions or prosecutions whether civil or criminal and whether or not they relate to matters done for the benefit of the state. This immunity is said to be granted ratione personae.

ii) At common law, a former head of state enjoys more limited immunity once he ceases to be head of state. He loses immunity ratione personae and enjoys instead an immunity ratione materiae, that is immunity in relation to his official acts during his tenure in post. He can be sued on his private obligations: see page 202F-H and the authorities cited there.

iii) Senator Pinochet was entitled to immunity from the charges of murder and conspiracy since these were official acts committed whilst he was in office. But to grant immunity in respect of the international law crime of torture would frustrate the application of the Torture Convention 1984, to which Chile was a signatory state. Senator Pinochet therefore did not have immunity in respect of charges of torture or conspiracy to torture after the coming into force in the United Kingdom of the Criminal Justice Act 1988 which implemented that Convention.
It was accepted in principle in this case that IF Prince Aziz HAD negotiated a settlement with Ms Harb in relation to his father’s marriage, that this would have been a personal matter (so would not be covered by the immunity ratione materiae – immunity for matters of official business)

The issue therefore was whether for non-elected, non-abdicating Heads of State, if they die whilst a Head of State, whether the state immunity applies to their estate for BOTH official matters AND personal matters or ONLY for personal matters.

The Prince was obviously arguing that it applied to both, and Ms Harb arguing that the immunity only applied to official matters (this not being one)

The sole question for decision in this application is therefore whether when the King ceased to be head of state of Saudi Arabia on his death, his immunity from suit (and hence the Prince’s) continued to extend to everything he did when he was head of state, whether of an official or private nature. Counsel for both parties told me that they have been unable to find any legal authority directly on this issue and that there is no commentary in text books and no learned articles considering the question.[1] Their researches have not uncovered any reference to a claim previously having been brought against the estate of a head of state who died in office. Given the calibre of the legal representation in this case, I can be confident that means that there is none to be found.
That’s the sort of thing that makes a law-geek like me behave very much like a Pointer dog. Two top Silks haven’t been able to find the definitive answer, so the case is all about the two of them battling it out and a High Court Judge working out the answer for the first (and quite possibly the last) time.

There! New law!

There! New law!

Note 1 The closest they have come is that Mr Fitzgerald QC drew my attention to a sentence from Satow’s Diplomatic Practice (6th edn by Sir Ivor Roberts) which contains under the heading ‘Immunity of a Former Head of State’ the sentence ‘His personal immunity ceases when a head of state is no longer, for whatever reason, in office’

[If Sir Ivor Roberts had provided a source for this bald assertion, the case could have been resolved much quicker]
Lord Pannick QC, representing the Prince distinguished this case from Pinochet with a single sharp point

Lord Pannick QC for the Prince argues that their Lordships in Pinochet (No. 3) did not have in mind the situation where the head of state had died in office, given that Senator Pinochet was very much alive during those protracted proceedings. The fact that King Fahd ceased to hold office because of his death rather than for any other reason distinguishes this case, Lord Pannick submits, from Pinochet (No. 3).
And so, there could be a two tier system – Heads of State who leave the role via death get the ‘full package’ of immunity ratione personae (for official AND personal matters) and those who leave the role by losing an election or abdication get the lesser package of immunity ratione materiae (official matters only)

I note at this point that Lord Pannick accepted that it made no difference on his arguments whether sovereign title in the particular state passed by hereditary succession, by democratic election, by effluxion of time or other means. Thus on the Prince’s case the estates of Abraham Lincoln and Franklin D Roosevelt would enjoy immunity ratione personae whereas the estates of Ronald Reagan and Harry S Truman would enjoy only immunity ratione materiae. Similarly and closer to home, the estate of King George VI would have complete immunity from suit whereas the estate of Edward VIII would enjoy only the more limited immunity. For legal purposes, it is accepted, those who leave office during their lifetimes become ordinary citizens and on their deaths their estates can claim no better treatment than they enjoyed the day before they died.

Part of the Prince’s argument was the underpinning philosophy behind state immunity – that it was to avoid affront to the personage of the state – and if we don’t want to affront them in life, nor should we do so in death. It’s not so bad when they are an ex-President or ex-King as opposed to a deceased one, who requires more respect.

Lord Pannick argues that it is as much an affront to the state to allow suits against the head of state after their death as it is to allow them before their death.
The High Court were against this (and let us imagine for a moment what it feels like to be a High Court Judge saying “no” to a Prince and a Lord, both at the same time)

In my judgment this submission is based on a misinterpretation of what it means to affront the dignity or sovereignty of a state as personified by the head of state and hence what it means to say that the doctrine’s function is to avoid such affronts. This emerges most clearly from the judgments of the Court of Appeal in Aziz. Lawrence Collins LJ distinguished there between the right that a head of state has to be protected from attacks on his dignity on the one hand and the uniform practice of host states of extending courtesy or comity to a foreign head of state ‘as a matter of diplomatic courtesy rather than as a recognition of a legal responsibility’ on the other. Sir Franklin Berman QC appearing for the Sultan in that case had put forward a very broad definition of ‘an attack on the dignity of a head of state’. He argued that this encompassed any deliberate act intended to lower the estimation of the head of state or to injure his honour or that of his office. Collins LJ held that a proposition of that breadth ‘would be a wholly impermissible invasion of the principle of free speech’: see paragraph 94. Sedley LJ agreed with Collins LJ in contrasting a legal entitlement to protection vested in the sovereign as an individual with the courts’ ‘salutary practice’ of protecting any third party from the distress caused by damaging or embarrassing allegations being made about them in open court.

Inherent in both the judgments in Aziz and in their Lordships’ speeches in Pinochet (No. 3) is the principle that a state is to be regarded as intolerably affronted by a foreign court asserting jurisdiction over the private affairs of its head of state on one day and then not so affronted if that court asserts jurisdiction the next day, the head of state having stood down or been deposed in the interim. This is not because the high esteem and affection in which that head of state is held by his subjects instantly evaporates the moment he steps down from office but rather because their esteem and affection is nothing to the point. Similarly, the fact that a nation may revere the memory of a much loved head of state after his death does not of itself justify a continuation for the benefit of his estate of the complete immunity that the sovereign enjoyed during his lifetime. The immunity recognised by international law is accorded without distinction both to the much loved and to those regarded by some or all of their subjects as an arch-devil: Lord Browne-Wilkinson was at pains to emphasise this in Pinochet (No. 3) at page 190F.

What is more to the point is the fact that, as Lord Millett said, the serving head of state is ‘regarded as the personal embodiment of the state itself’ whilst in office. It is that fact, rather than the merit of the individual concerned, which justifies the immunity and which generates the intolerable affront if the immunity is infringed. The notion of the head of state being the embodiment of the state as the underlying justification for state immunity (both for heads of state and for ambassadors) goes back to the earliest authorities. In Aziz Lawrence Collins LJ cited Vattel’s The Law of Nations published in 1758 where it was said of a head of state: (emphasis added)

“S’il est venu en voyageur, sa dignité seule, et ce qui est dû à la nation qu’il représente et qu’il gouverne, le met à couvert de toute insulte, lui assure des respects et toute sorte d’égards, et l’exempte de toute juridiction.””
I, of course, was about to say exactly the same thing. As soon as I started reading this case, I thought to myself, “Surely, s’il est venu en voyageur”   [if you want to imagine me saying that in a Del Boy accent, feel free]

(The High Court don’t translate this phrase, but I’m sure that my readers have grasped the meaning entirely. Or in my mangled interpretation – something about a voyage or journey, something dignity something, something about a nation representing the government, something about an insult, something about assuring the respect of something, something about being exempt from the  jurisdiction. And one need say no more, surely)

[Save that my dreadful translation reminds me of the classic D R & Quinch story by Alan Moore, where two reprobates get their hands on a movie script by an acclaimed screenwriter who then dies. Off the back of the script, they are greenlit to make the movie, and only on set do they realise that the only vaguely legible words are the final line “something something oranges something”    If you haven’t read it, you should, it is great]

The High Court goes on

I do not accept that a sovereign who dies in office remains the embodiment of the state once deceased. On the contrary, a new head of state springs up, either instantly in the case of an hereditary monarchy or after due process in the case of an elected head of state (although most states will designate an interim head pending such an election). Again, this is nothing to do with whether the recently deceased head of state continues to hold a place in the hearts of the nation or is still regarded by his or her former subjects as an exemplar of all that is best about that nation’s character. We are not talking about embodying the state in that sense but in a more technical sense. There is no room in this doctrine for two embodiments of the state to exist at the same time, one dead and one living.
That, I can understand. If the state immunity applies because King Fahd IS the personification of Saudi Arabia, then you can’t have two separate people, say King Fahd I (dead) and King Fadh II (alive) BOTH being the personification of Saudi Arabia at the same time.

Counsel for Ms Harb suggested that the answer could be extrapolated from the provisions of article 39 of the Vienna Convention (as set out in the early part of this piece) – specifically the provisions which make allowance for a reasonable period of time for members of the household to leave the country and take items with them under state immunity after the Head of State has died. After all, if the state immunity continued and extended to the estate after the Head of State died, what would be the point of those provisions?
Mr Fitzgerald relies on Article 39(3) and (4) as supporting his argument to precisely the opposite effect. Those provisions are included to make clear that although generally speaking immunity ratione personae lasts only whilst the ambassador holds office, it is extended for a short period to allow the ambassador and his family to leave and to take their belongings with them, largely free of export charges and controls.

On this point I consider that the scope of Article 39 supports Mrs Harb’s case on the scope of immunity rather than Prince Abdul Aziz’s. One cannot infer from the fact that Article 39(3) refers only to the members of the ambassador’s family and not to the ambassador himself that the Vienna Convention assumes that the ambassador’s estate continues to enjoy all privileges and immunities indefinitely. It is equally consistent with a position whereby his immunities and privileges cease on death and are therefore extended briefly to those of his family for what Mr Fitzgerald referred to as a ‘penumbra or residual packing-up period’. As regards Article 39(4), it is difficult to see why this provision would be necessary if the Prince’s case were right. If the ambassador’s estate continues to enjoy full immunity ratione personae, there could be no question of levying estate, succession or inheritance duties on his estate. Moreover, there are two important exceptions in Article 39(4). First, the receiving state is entitled to prevent the removal of property that was acquired in the receiving state and which cannot lawfully be exported from that state and secondly it appears that estate, succession and inheritance duties may be levied on moveable property which is present in the receiving state for reasons other than because the deceased was the ambassador. Transposing article 39(4) to apply it to a head of state may give rise to one of the baffling legal problems to which Lord Browne-Wilkinson referred in Pinochet (No. 3). For present purposes it is enough to say that the detailed provision for the application of the receiving state’s law to the property of the estate of the deceased ambassador supports Mrs Harb’s contention that there is no continuing immunity ratione persoane enjoyed by that estate.
{I admire and applaud the Judge’s reference here to the possibility of a ‘baffling legal problem’ being raised in the future, as though the resolution of this current case was as easy as falling off some logs. Having got on a roll with how easy this was all becoming, the Judge decides to tackle the issue of whether a quick-thinking litigant could sue a Head of State for a personal matter if a coup in their own country deposes them, and considers that it is possible, although serving them before they leg it would present some obstacles}

In my judgment therefore there are no grounds for distinguishing the principles set out in Pinochet (No. 3) on the basis that King Fahd ceased to be head of state of Saudi Arabia on his death rather than during his lifetime. The principle that a former head of state enjoys only immunity ratione materiae applies to the late King as it applies to any head of state who stands down from office during his lifetime. Further, there is no justification for treating the estate of a head of state who dies in office in a more favourable way than the living former head of state or the estate of such a former head of state who dies some time after leaving office. I regard myself as bound by the House of Lords’ decision in Pinochet (No. 3) to dismiss the Prince’s application.
We can therefore look forward to more litigation between Ms Harb and the Prince in due course. I, for one, cannot wait. I shall be disappointed if some hieroglyphics don’t find their way into the judgment somehow.


[As a sidebar to this, I read an A P Herbert story recently about a tradition that if the Queen appears in the vicinity of the Old Bailey, the trials are paused until she has moved to somewhere more distant, because the notion is that the Queen is the head of law in this country, hence the head of justice and that her Judges only carry out that function to assist her and would not have the temerity to hear evidence or make decisions if the Queen were sufficiently proximate to undertake this role herself. Anyone who knows whether (a) this is true and (b) whether it has ever actually happened is most welcome to tell me about it]


About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

3 responses

  1. Good luck if she ever has to enforce a judgment. If the flats are still owned by the estate (which I doubt) a Registrar could sign a transfer, but as for the money, forget it. And I doubt if her story will be worth much.

    This is another case about the scandal of bankrupts being allowed to buy up causes of action for a song and the defendant left without remedy when the claim fails. The bankrupt should be required to have insurance in place to cover and order for the defendant’s costs before being allowed to go on.

    As for the Bailey: whether there is any truth in that story I doubt: but it is true that the judges there sit off-centre because the Lord Mayor has the right to preside. He doesn’t any more, except for certain formal occasions, but they still sit off-centre. I believe they also did in the Mayor’s and City of London of blessed memory.

    Rather like the extra man in every artillery team in the Red Army in the Second World war who did nothing and was the successor to the man who controlled the horses before the artillery was motorised, or is that another myth?

    • The bankruptcy element is a good point, it is potentially risk-free litigation for one side, with the hope that there’s a deal to settle to make the whole thing go away.

      I didn’t know about the off-centre thing. I remember being told back when I did admin bits and pieces at the Judge’s lodgings that if there are High Court Judges in the lodgings after dinner having port and cigars, there will always be a spare chair unsat in, even if that means someone standing up, just in case the Queen comes in and needs to sit down. Like Steinbeck, I am of the view that if these things aren’t true then they have a sort of beauty that makes them meaningful anyway.

  2. Pingback: A Court may look at a King | Decree Absolute: D...

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