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Prince Aziz v Harb: the limits of state immunity
In HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz v Harb, the Court of Appeal held that there is no immunity from suit when the estate of a head of state who died in office is sued in respect of a private (as opposed to official) act.
The claimant (Mrs Harb) brought a claim against HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz of the Saudi royal family for damages for breach of an oral contract, which Mrs Harb said was concluded between herself and the Prince on about 19 June 2003.
The Prince applied to strike the claim out on the basis that the English court had no jurisdiction to hear it because it was barred by the defence of sovereign immunity, pursuant to section 20 of the State Immunity Act 1978 (SIA).
In both the High Court and Court of Appeal, the case proceeded on the basis of agreed assumptions that (i) the contract was between Mrs Harb and the late King Fahd himself (the Prince acting solely as his agent or representative); and (ii) the claim was against the estate of the late King.
The decision of the Court of Appeal
Counsel for the Prince (Lord Pannick QC) submitted that there is immunity for the estate of a head of state who died in office, even if there is no such immunity for a former head of state who is still alive. He argued that (1) the absence of such immunity would be an affront to the state of which the deceased person had been head before his death; (2) there would be “practical difficulties” if a head of state were stripped of all immunities immediately upon his death; and (3) that the absence of such immunity would frustrate the “functional basis” of the doctrine of state immunity, namely, to protect the ability of the head of state to carry out his functions and to promote international co-operation.
The Court of Appeal rejected all of these arguments, concluding that (1) a former head of state has no immunity from suit in respect of private acts done while in office; and (2) this rule applies whether the person ceased to be head of state while still alive (and died later) or because they died in office. It also concluded, obiter, that if a suit is not justiciable by reason of state immunity, then it will not become justiciable by virtue of Article 6 of the ECHR.
This decision merits attention for three reasons. First, the SIA is the sole source of English law on the principles of state immunity applicable to heads of state and former heads of state. Second, the point argued by the Prince was a novel one, “not covered directly by authority or, indeed, in the text books or legal literature” (Aikens LJ, at paragraph 15). Third, section 20(1) of the SIA is not well-drafted and its effect is not immediately clear. As Aikens LJ observed: “To call [it] clumsy would be an understatement…the section has all the hall-marks of being concocted in a hurry without much thought as to how it was intended to work in conjunction with the DPA and the Convention.” In short, the point was ripe for appellate attention.
However, in substantive terms this is a not a surprising result. The Court of Appeal did not change or depart from the general principles applying in this sphere of international law. It is uncontroversial that when a head of state leaves office while alive, his ongoing immunity is limited to official acts whilst in office. The Court of Appeal simply declined to extend immunity to private acts by drawing a principled distinction between a head of state who left office while alive, and one who died in post.
Following the decision in Jones and others v United Kingdom, in which the ECtHR ruled that the inability of four men to bring torture compensation claims against Saudi Arabia in the UK courts (because of the immunity of the officials involved) did not violate Article 6 of the ECHR, the Court of Appeal’s decision will reassure observers that, if only in respect of the private acts of heads of state while in office, no such immunity applies. It does not matter whether a head of state dies in office or leaves while alive: he or his estate will not enjoy immunity for those acts. This is some consolation for those who fear that state immunity provides too powerful a shield for the rulers of regimes which do not respect the rule of law or universal human rights.