Wednesday, June 14, 2006

Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others

The House of Lords (Britain's supreme court) has overturned the Court of Appeal and ruled that four britons


  1. Ron Jones,

  2. Les Walker,

  3. Bill Samson and,

  4. Sandy Mitchell

Who were imprisoned and tortured in Saudi Arabia do not have the right to sue the Saudi authorities.


The Lords allowed an appeal by the Kingdom of Saudi Arabia against the October 2004 Court of Appeal decision [EWCA Civ 1394] granting the Jones permission to sue for damages for their treatment at the hands of the Saudi authorities.

The court accepted the appelants contention that the State Immunity Act[1978] protected Saudi officials from proceedings brought in the United Kingdom.


The Lords' Judgement can be found here. The case is considered likely to go to the European Court of Human Rights.

At first sight the Lords appear to have relied excessively on Al-Adsani v Government of Kuwait (No 2) (1996) 107 ILR 536. And to have made a narrow judgement that ignores the thrust of recent international law and of the intent of the Human Rights Act 1998


The Lords moreover appear to consider that the principle that actions of the appelants agents and servants be attributed to the apellant does not hold:Prosecutor v Blaskic (1997) 110 ILR 607, 707


"Such officials are mere instruments of a state and their official action can only be attributed to the state. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a state. In other words, state officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the state on whose behalf they act: they enjoy so-called 'functional immunity'. This is a well-established rule of customary international law going back to the 18th and 19th centuries, restated many times since."


Saying:


68. Despite the undoubted authority for expressing the rule in this way, I do respectfully think that it is a little artificial to say that the acts of officials are "not attributable to them personally" and that this usage can lead to confusion, especially in those cases in which some aspect of the immunity of the individual is withdrawn by treaty, as it is for criminal proceedings by the Torture Convention. It would be strange to say, for example, that the torture ordered by General Pinochet was attributable to him personally for the purposes of criminal liability but only to the State of Chile for the purposes of civil liability. It would be clearer to say that the Torture Convention withdrew the immunity against criminal prosecution but did not affect the immunity for civil liability. I would therefore prefer to say, as Leggatt LJ did in Propend Finance Pty Ltd v Sing (1997) 111 ILR 611, 669, that state immunity affords individual employees or officers of a foreign state "protection under the same cloak as protects the state itself". But this is a difference in the form of expression and not the substance of the rule.

This narrow distinction seems to me to be highly artificial and contrary to the thrust of the Lords' own recent judgements and to the provisions of the 1998 act.

I hope to write more on this when I have had time to have read the judgement more thoroughly.


markfromireland


Begin Notes: — Relevant sections of the Act



United Kingdom
STATE IMMUNITY ACT OF 1978
An Act to make new provision with respect to proceedings in the United Kingdom by or against other States. to provide for the effect of judgments given against the United Kingdom in the courts of States parties to the European Convention on State Immunity; to make new provision with respect to the immunities and privileges of heads of State; and for connected purposes.
[2Oth July 1978]
PART I. PROCEEDINGS IN UNITED KINGDOM BY OR AGAINST OTHER STATES
Immunity from jurisdiction
1.--(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.
(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.
Exceptions from immunity
2.--(1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom.
(2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be governed by the law of the United Kingdom is not to be regarded as a submission.
(3) A State is deemed to have submitted--
(a) if it has instituted the proceedings; or
(b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings.
(4) Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of--
(a) claiming immunity; or
(b) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it.
(5) Subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable.
(6) A submission in respect of any proceedings extends to any appeal but not to any counterclaim unless it arises out of, the same legal relationship or facts as the claim.
(7) The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to submit on its behalf in respect of proceedings arising out of the contract.
3.--(1) A State is not immune as respects proceedings relating to--
(a) a commercial transaction entered into by the State or
(b) an obligation of the State which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in the United Kingdom.
(2) This section does not apply if the parties to the dispute are States or have otherwise agreed in writing; and subsection (1)(b) above does not apply if the contract (not being a commercial transaction) was made in the territory of the State concerned and the obligation in question is governed by its administrative law.
(3) In this section "commercial transaction" means--
(a) any contract for the supply of goods or services;
(b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and
(c) any other 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;

but neither paragraph of subsection (1) above applies to a contract of employment between a State and an individual.
4.--(l) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there.
(2) Subject to subsections (3) and (4) below, this section does not apply if--
(a) at the time when the proceedings are brought the individual is a national of the State concerned; or
(b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or
(c) the parties to the contract have otherwise agreed in writing.
(3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, subsection (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State.
(4) Subsection (2)(c) above does not exclude the application of this section where the law of the United Kingdom requires the proceedings to be brought before a court of the United Kingdom.
(5) In subsection (2)(b) above "national of the United Kingdom" means a citizen of the United Kingdom and Colonies, a person who is a British subject by virtue of section 2, 13 or 16 of the British Nationality Act 1948 or by virtue of the British Nationality Act 1965, a British protected person within the meaning of the said Act of 1948 or a citizen of Southern Rhodesia.
(6) In this section "proceedings relating to a contract of employment" includes proceedings between the parties to such a contract in respect of any statutory rights or duties to which subject as employer or employee.
5. A State is not immune as respects proceedings in respect of--
(a) death or personal injury; or
(b) damage to or loss of tangible property,
caused by an act or omission in the United Kingdom.

6.--(1) A State is not immune as respects proceedings relating to--
(a) any interest of the State in, or its possession or use of, immovable property in the United Kingdom; or
(b) any obligation of the State arising out of its interest in, or its possession or use of, any such property.
(2) A State is not immune as respects proceedings relating to any interest of the State in movable or immovable property, being an interest arising by way of succession, gift or bona vacantia.
(3) The fact that a State has or claims an interest in any property shall not preclude any court from exercising in respect of it any jurisdiction relating to the estates of deceased persons or persons of unsound mind or to insolvency, the winding up of companies or the administration of trusts.
(4) A court may entertain proceedings against a person other than a State notwithstanding that the proceedings relate to property--
(a) which is in the possession or control of a State; or
(b) in which a State claims an interest,
if the State would not have been immune had the proceedings been brought against it or, in a case within paragraph (b) above, if the claim is neither admitted nor supported by prima fade evidence.
… …
Supplementary provisions
14.--(1) The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other than the United Kingdom, and references to a State include references to--
(a) the sovereign or other head of that State in his public capacity;
(b) the government of that State; and
(c) any department of that government,
but not to any entity (hereafter referred to as a "separate entity") which is distinct from the executive organs of the government of the State and capable of suing or being sued.
(2) A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if--
(a) the proceedings relate to anything done by it in the exercise of sovereign authority; and
(b) the circumstances are such that a State (or, in the case of proceedings to which section 10 above applies, a State which is not a party to the Brussels Convention) would have been so immune.
(3) If a separate entity (not being a State's central bank or other monetary authority) submits to the jurisdiction in respect of proceedings in the case of which it is entitled to immunity by virtue of subsection (2) above, subsections (1) to (4) of section 13 above shall apply to it in respect of those proceedings as if references to a State were references to that entity.
(4) Property of a State's central bank or other monetary authority shall not be regarded for the purposes of subsection (4) of section 13 above as in use or intended for use for commercial purposes; and where any such bank or authority is a separate entity subsections (1) to (3) of that section shall apply to it as if references to a State were references to the bank or authority.
(5) Section 12 above applies to proceedings against the constituent territories of a federal State; and Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State.
(6) Where the provisions of this Part of this Act do not apply to a constituent territory by virtue of any such Order subsections (2) and (3) above shall apply to it as if it were a separate entity.
l5.--(l) If it appears to Her Majesty that the immunities and privileges conferred by this Part of this Act in relation to any State--
(a) exceed those accorded by the law of that State in relation to the United Kingdom; or
(b) are less than those required by any treaty. convention or other international agreement to which that State and the United Kingdom are parties.
Her Majesty may by Order in Council provide for restricting or, as the case may be, extending those immunities and privileges to such extent as appears to Her Majesty to be appropriate.
(2) Any statutory instrument containing an Order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
16.--(l) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and--
(a) section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968;
(b) section 6(1) above does not apply to proceedings concerning a State's title to or its possession of property used for the purposes of a diplomatic mission.
(2) This Part of this Act does not apply to proceedings relating to anything done by or in relation to the armed forces of a State while present in the United Kingdom and. in particular, has effect subject to the Visiting Forces Act 1952.
(3) This Part of this Act does not apply to proceedings to which section 17(6) of the Nuclear Installations Act 1965 applies.
(4) This Part of this Act does not apply to criminal proceedings.
(5) This Part of this Act does not apply to any proceedings relating to taxation other than those mentioned in section 11 above.
17.--(1) In this Part of this Act--
"the Brussels Convention" means the International Convention for the Unification of Certain Rules Concerning the Immunity of State-owned Ships signed in Brussels on 10th April 1926;
"commercial purposes" means purposes of such transactions or activities as are mentioned in section 3(3) above;
"ship" includes hovercraft.
(2) In sections 2(2) and 13(3) above references to an agreement include references to a treaty, convention or other international agreement.
(3) For the purposes of sections 3 to 8 above the territory of the United Kingdom shall be deemed to include any dependent territory in respect of which the United Kingdom is a party to the European Convention on State Immunity.
(4) In sections 3(l), 4(1), 5 and 16(2) above references to the United Kingdom include references to its territorial waters and any area designated under section 1(7) of the Continental Shelf Act 1964.
(5) In relation to Scotland in this Part of this Act "action in rem" means such an action only in relation to Admiralty proceedings.





end notes

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