The Court of Appeal has held that the private acts of a head of state were not protected by state immunity, whether the person had ceased to be head of state whilst alive or had done so because he had died.
The case concerned a claim for damages for breach of an oral contract alleged to have been concluded between a Saudi Arabian prince and the widow of his father, the Saudi king. The prince had agreed to honour his father’s promise to provide for the widow for the rest of her life. The prince argued that the claim was barred by state immunity (under section 20 of the State Immunity Act 1978, which deals with head of state immunity), as such immunity would have applied to his father and therefore to him as his father’s representative in making the agreement. The issue before the court was whether immunity covered the king’s acts in dispute: specifically, whether when the king died and thereby was no longer head of state, immunity still applied to his private acts carried out while he was head of state.
The Court of Appeal held as follows:
- Determining the immunity of heads of state involved two stages: construing Article 39(2) of the Vienna Convention on Diplomatic Relations with requisite modifications as per section 20 of the State Immunity Act 1978, and testing that construction against other sources of customary international law or cases commenting on those sources. Article 39(2) did not distinguish between the position of a diplomat (or another person entitled to privileges and immunities) who ceased to perform his function because his term of office had ended and the position of one who had died en poste. No modifications to that provision were necessary to make it apply to a deceased head of state. Consequently, according to the Vienna Convention, R. v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.3)[2000] 1 AC 147 and other relevant international law sources a former head of state had no immunity from suit in respect of private acts, and this rule applied whether the person had ceased to be head of state whilst alive or had done so because he had died.
- The estate of a deceased head of state was not covered by immunity from suit for private acts. The estate of the deceased head of state no longer personified the state, nor was it an affront to the state if that estate was sued in respect of private acts. Though state immunity was based on broad considerations of public policy, international law and comity (Rahimtoola v Nizam of Hyderabad [1958] AC 379) this did not mean that immunity should be extended to private acts once the head of state had left office. “Neither case law nor doctrine, logic or practical considerations lead me to conclude that there is a distinction between the position of a head of state who has left office and who lives thereafter and one who ceased to be head of state upon dying in office”.
- In conclusion, the prince (i.e. the late king’s estate) could not claim state immunity in respect of the widow’s claim.
HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz v Harb [2015] EWCA Civ 481, 13 May 2015
