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| 21 personally benefit. If you have that kind of conflict
22 of interest you are not within Article 3(1)(e), that is 23 the first point you get. 24 The second point you get, and in my submission it 25 logically follows, is that there must come a point at 52 1 which the scale of someone's involvement in commercial 2 activities in breach of Article 42 reaches such a pitch, 3 such a level, as to give rise to an impossibility for 4 that person to contend that they are in substance 5 a diplomat. 6 In that connection the material cited at 23 are 7 particularly important because they show the practice 8 that a diplomatic agent should devote themselves 9 exclusively to diplomatic functions, and it is 10 effectively a full-time activity being a diplomat, it is 11 not something that you dip in and dip out of. If you 12 want to be a temporary envoy, then you can have recourse 13 to the special UN Convention dedicated to that subject. 14 This is about permanent missions, and it brings with it 15 notions of permanence and dedication on the part of the 16 staff serving the permanent mission. 17 Now, I don't have to meet the target of showing, 18 well, there is just one instance of commercial activity, 19 ergo you lose your diplomatic status, that is not my 20 argument. My argument is that there is no evidence 21 whatever of any actual engagement in diplomatic 22 functions. There is compelling evidence that the 23 entirety of his activity and functions are commercial. 24 And the gauntlet has been thrown down, show just one 25 instance of him going to a foreign reception or engaging 53 1 with the UK government at a high level fashion in 2 a noncommercial context. It has not been taken up. You 3 would have thought it would be simplicity itself to 4 prove, because this individual by reference to his 5 seniority, by reference to his status, is not somebody 6 who is going to be sitting in the back office drafting 7 reports for the ambassador. If he is going to be 8 deployed at all in a diplomatic context it is going to 9 be at a high level with high ranking State officials or 10 governmental ministers. That's the reality, he is not 11 going to be sitting typing in the embassy. 12 We will see when we come on to Article 41(2) that is 13 also in essence what the diplomat does when they engage 14 with foreign governments. 15 So those are the two points we say about the linkage 16 between 42 and Article 3. 17 Can I then, since we have this bundle, ask you to 18 look briefly at Denza, Professor Denza, who is obviously 19 a world-renowned expert on the subject of diplomatic 20 law. 21 MR JUSTICE BLAKE: Yes. 22 MR DE LA MERE: Her book is at tab 38 of the bundle. We 23 will come back to the book when we look at certificates, 24 but can we just start with looking at what she says on 25 the topic of who is a diplomat. The passage begins at 54 1 page 18 of the extract. 2 MR JUSTICE BLAKE: Subsequent practice. 3 MR DE LA MERE: Subsequent practice, correct, my Lord, but 4 it is in particular the passage at page 19 upon which we 5 place reliance. But it is plain -- 6 MR JUSTICE BLAKE: Just one moment, please, I just want to 7 make a note. Right. 8 MR DE LA MERE: It is plain having reviewed changes in US 9 and UK practice towards a more rigorous approach and, of 10 course, the 1984 change of practice in the UK was 11 triggered by the events at the Libyan Embassy in 1985, 12 Professor Denza reaches the conclusion at the bottom of 13 that paragraph: 14 "While the essential requirements as to title and 15 functions are clearly justified under international 16 practice, the supplementary criteria cannot be brought 17 within." 18 What she is saying is, yes, within the definition 19 set out in Article 1(e): 20 "Though they might be justified under later 21 provisions of the Convention, the United States in 2004 22 expelled several Saudi Arabians on the ground that their 23 activities consisted in preaching outside the mission 24 rather than carrying out their diplomatic functions 25 within it." 55 1 What this passage clearly shows is clear academic 2 opinion that performance of a diplomatic function is 3 a clearly justified requirement for somebody to be 4 a diplomat. It is completely inconsistent with the 5 notion that it is enough that the party certifies you to 6 be part of their diplomatic mission. 7 Obviously whether or not a State has taken up 8 a hostile attitude to whether or not somebody is in 9 substance a diplomat is likely to form part of the 10 evidential matrix, a compelling part of the evidential 11 matrix in the circumstances where the State feels it has 12 a positive case against an individual and has on that 13 basis decided that they are not to be accorded immunity. 14 But, in my submission, the consequence of such an 15 expulsion on such a ground is not just that the PNG 16 provisions could be invoked but that the person never 17 had immunity in the first place. They were never 18 a diplomat. If they were not exercising diplomatic 19 functions, they certainly -- 20 MR JUSTICE BLAKE: If that proposition, which certainly is 21 a novel one -- 22 MR DE LA MERE: It is, and the problem will be proof. 23 I imagine it will be said against me: what about 24 espionage, the classic instance of misuse? The problem 25 is in many cases the activities of somebody involved in 56 1 such activities will be blended with perfectly 2 legitimate activities, finding out about State 3 conditions, going to meetings, listening to what people 4 say, attending hearings, et cetera, all of which are 5 clearly diplomatic functions. 6 MR JUSTICE BLAKE: My understanding, and I will intervene so 7 you can respond to this intervention, if you think fit, 8 my understanding is that declaring someone 9 persona non grata is precisely what you do to someone 10 who is a diplomat as opposed to any other ordinary alien 11 who you can just terminate their leave and expel under 12 immigration control. But diplomats are exempt from 13 immigration control and, therefore, if you want to, as 14 it were, "get rid of" such a diplomat you have to 15 declare them persona non grata, that terminates their 16 functions at the mission and off they go. But that very 17 mechanism, a question for you and your submission, 18 suggests that until you have done that, until they have 19 gone, they are a diplomat. 20 MR DE LA MERE: With respect, I am not sure that is quite 21 right. 22 MR JUSTICE BLAKE: Well -- 23 MR DE LA MERE: The position is under section 8.3 of the 24 Immigration Act they are exempt from the requirements to 25 have leave to remain, et cetera. They still have to get 57 1 visas. You still have to get diplomatic visas, as 2 I understand it. That is basically what the debate in 3 Bagga is about. 4 MR JUSTICE BLAKE: Bagga I remember very well. 5 MR DE LA MERE: I am sure you do. It is always rash to pick 6 a fight with my Lord on any matter concerning -- 7 MR JUSTICE BLAKE: Quite, if you get a visa, that is the 8 other case that Mr Justice Vos, as he than was, was 9 dealing with, those people got visas, which is the 10 clearest evidence that they weren't exempt from 11 immigration control, because a visa is precisely 12 a permissive act of the receiving State, rather than 13 some declaration that you are exempt, and a diplomatic 14 passport, as we know, is a generic term, it doesn't 15 always mean that you are entitled to diplomatic 16 immunity, but it means you are entitled to travel on 17 a different form of a document, which may give rise to 18 an enquiry. 19 But, anyway, let's not perhaps get diverted from 20 that, but I have put to you, and you might want to think 21 about it and reflect, and give me the answer to the 22 question, and you can see if that is the left hook 23 coming in, there is a right one knocking around in the 24 distance, because at the moment it seems to me that you 25 have put on the 16 November letter a lot of material 58 1 which is of essentially the same order of the material 2 that you put before me to the FCO saying, "Look, X is 3 not in fact performing the functions of a diplomat under 4 Article 3, he is performing very substantial functions 5 under Article 42, ergo it is an abuse, ergo, et cetera, 6 et cetera", and what has the Foreign Office done about 7 all that? 8 MR DE LA MERE: When I show you the full chronology it is 9 quite plain that the Foreign Office has not taken 10 a position on those issues, and I will show you one or 11 two things. 12 MR JUSTICE BLAKE: You can put that one on the back-burner 13 then, but -- 14 MR DE LA MERE: It is a hurdle that I am going to confront 15 and not attempt to leap over. 16 MR JUSTICE BLAKE: I'm only raising these matters so you can 17 give me the assistance. 18 MR DE LA MERE: Absolutely. There we have the interaction 19 between Article 3 and 42, and you get the strength of 20 the hostility to the Article 42 activities from this 21 case. The tie-in, the explicit tie-ins to functions in 22 Article 3 and the support for that analysis from 23 Professor Denza. 24 MR JUSTICE BLAKE: We have looked at the passage that you 25 rely upon and there is nothing else. 59 1 MR DE LA MERE: No. 2 That being so, in our submission, the problem is one 3 of essential characterisation, just as the problem was 4 in the Apex case. An occasional breach of Article 42 5 won't lead you to fall outside discharge of diplomatic 6 functions, because you will still be discharging them. 7 But where in truth someone is to the world 8 a professional businessman, a full-time professional 9 businessman or professional investor in their own 10 interests, who undertakes a bit of diplomacy on the 11 side, they cannot be a diplomat. You cannot pretend 12 a leopard is an antelope because occasionally it eats 13 grass, that is really the essence of the debate we have 14 here. 15 Now, in some cases I readily accept that there are 16 going to be difficult questions of fact and degree just 17 as there were difficult questions of fact and degree 18 that Mr Justice Vos squarely confronted in Apex: how far 19 must a person's time and labour be spent in business 20 before you characterise them as a businessman and so not 21 in substance a diplomat? But when we come to the 22 evidence, you will see those questions of fact and 23 degree simply don't arise at all. This is not even 24 a case of predominant business interests and activity 25 with diplomatic activity being undertaken as a minor 60 1 sideshow. There is simply no evidence whatever beyond 2 the bare assertion contained in the ambassador's and the 3 Foreign Minister's statement that he has been appointed 4 to pursue economic relations, there is no evidence at 5 all as to what is being done, still less that it is 6 still being done. 7 The ambassador -- and I will come to his evidence 8 when I review the evidence -- states simply he has been 9 appointed to this post to discharge these functions, 10 paragraph 4, and he continues to discharge them. 11 MR JUSTICE BLAKE: So the assertion goes beyond appointment. 12 MR DE LA MERE: It goes to appointment and continuation, but 13 we don't know what the functions being relied upon are, 14 that is the essential issue. 15 MR JUSTICE BLAKE: We may have to look at the evidence but 16 we will do that -- 17 MR DE LA MERE: Yes. 18 We say on this question of characterisation there 19 are two cases that assist. The first is Apex, which 20 I asked you to read overnight, and the second is Tega. 21 MR JUSTICE BLAKE: Yes. 22 MR DE LA MERE: We will come back and look at Apex again in 23 detail, but really the point being made is this. The 24 exercise you are being asked to undertake by us is 25 exactly akin to the exercise Mr Justice Vos was asked to 61 1 undertake is to define the content of the term "royal 2 household", a term that Lord Justice Briggs noted lacked 3 an objective definition or content, is to define it by 4 reference to the content of the treaty as a whole and 5 then work out what questions of fact are relevant to 6 that definition so ascertained. That is precisely the 7 exercise you have to engage in here by reference to 8 another similarly a largely undefined concept. 9 But I would say that the conception of diplomatic 10 agent is considerably further detailed by Article 3, 11 which provides a great deal more particularity, and 12 Article 42, than anything that arose in the State 13 immunity context. You will note in particular 14 paragraphs 86 to 107 of Mr Justice Vos' judgment, 15 especially 101 where he says that this question, of what 16 are the criteria by which you assess this is a pure 17 question of law, and paragraph 105 when he ties the 18 definition he adopts back to the functional purpose of 19 the immunity. That is always the task, it is always the 20 task to tie back everything to that recital to make sure 21 that what you are doing makes sense by reference to the 22 object and purpose of the Convention. 23 And you see exactly the same approach in the speech 24 of Lord Justice Briggs at paragraphs 19 to 43, 25 especially 35 to 41, and in particular paragraph 38, 62 1 again emphasising the functional role of the immunity in 2 identifying the substantive criteria. And then in 39 he 3 relies as particularly important on a definition not 4 having an overly broad result that would effectively had 5 a capacity for abuse of the status in question. So 6 overbreadth of definition, overbreadth of approach, 7 unjustified/unjustifiable immunity, capacity for abuse, 8 are all factors that you have to take into account when 9 engaging in that form of objective analysis. 10 And Tega is the other such case. Simply because the 11 Costa Ricans had asserted that the individual in 12 question was engaged upon an economic mission didn't 13 stop Lord Justice Parker from a searching analysis of 14 exactly what it was that Mr Tega was up to. There were 15 a variety of other points in the case, and one of the 16 other points was if anything it is a special mission and 17 special missions are predicated on consent and there is 18 no evidence of consent. 19 MR JUSTICE BLAKE: That is ultimately what it was, because 20 Mr Tega wasn't joining the Costa Rican mission in 21 London. If he was going to be diplomatic immune he 22 would have to be a head of a mission and the issue was 23 whether you can do that unilaterally or otherwise and -- 24 MR DE LA MERE: Correct. But when you read the judgment you 25 will see that there is also a freestanding investigation 63 1 into the nature of his activities and functions leading 2 to the conclusion that in substance he was pursuing 3 particular commercial opportunities on behalf of the 4 Costa Rican State and no doubt himself as 5 a commissioner. 6 MR JUSTICE BLAKE: I have read there are three factors, 7 aren't there, in that case? One, it was a special 8 mission and the requirements in law for a special 9 mission. 10 Two, there are significant inconsistencies between 11 the information coming from Costa Ricans as to where his 12 mission was and to who. 13 Three, there was some examination as to what he was 14 doing, because it wasn't a case in which the Foreign 15 Office were recognising anything or there was any help 16 from the Foreign Office to pointing towards immunity, so 17 it was left to the court to see whether despite the 18 fact, I think, of the absence of information from the 19 Foreign Office that would be helpful to the claim for 20 immunity whether there was still an immunity, but those 21 are the three points of distinction. 22 MR DE LA MERE: I agree with that analysis, my Lord. 23 Now, the next set of provisions are the set of 24 provisions relating to free appointment upon which my 25 learned friend really rests the majority of her argument 64 1 on. At the centre of this is Article 7, which says 2 subject to the provisions of Articles 5, 8, 9 and 11 the 3 sending State may freely appoint the members of the 4 diplomatic staff of the mission. 5 The first point to make is what you are free to do 6 is to appoint, but what the appointment must be to the 7 staff of the mission. You cannot appoint them to being 8 a cleaner and then saying they are part of the staff of 9 the mission, because that doesn't meet the functional 10 test. 11 This is why I say there are two issues being 12 conflated in my learned friend's argument, what is the 13 nature of the post, is it a diplomatic post, and your 14 freedom to appoint to it. And it is no part of our case 15 to say that somehow the UK is subject to the constraints 16 and the conventions that do exist is otherwise free to 17 control who they appoint to diplomatic posts. They can 18 appoint who they like to diplomatic posts as long as 19 they are diplomatic posts. 20 If you look at the limitations contained, Article 5 21 is all about multiple appointment, somebody serving as 22 a head of mission or a diplomat in more than one 23 country, that requires consent, and that in itself is 24 a powerful, powerful indicator of the permanence 25 required of a diplomat. The very fact that you have to 65 1 get consent to act in more than one country says that 2 the basis of the diplomatic relationship should be that 3 you are dedicating all of your diplomatic activity, all 4 of your activity, to the State that is your host State, 5 in return for which you get social security, tax and 6 other immunities, that is the first condition. 7 8, they should in principle be of the nationality of 8 the sending State, and that is to preclude a situation 9 where the person appointed is a national of the 10 receiving State and is thereby effectively elevated 11 above the position of all their other nationals. So 12 that requires consent. 13 And then 9 is persona non grata. The receiving 14 State may at any time, and without having to explain its 15 decision, notify the sending State that the head of 16 mission and any member of the diplomatic staff of the 17 mission is persona non grata. They emphasise the word 18 "notify", that is the first point in an enquiry where 19 the language of notification appears at all. It is the 20 first instance in which notification of anything is 21 relevant to anything, and it is obviously a fact to 22 which the receiving State can attest, a fact known to 23 it: has it notified under PNG or has it not? And there 24 is no dispute in this case that the UK has not notified 25 as a PNG. That is not relevant to the question of is 66 1 the person in question a diplomat. 2 The consequence of notification is the sending State 3 shall as appropriate either recall the person or 4 terminate his functions with the mission, and that again 5 suggests they have to have functions with the mission. 6 You will see there is language of "functions with the 7 missions", the person having functions with the mission, 8 throughout and the functions can only be a reference 9 back to Article 3(a) to (e), that is what functions 10 mean. It is defined in Article 3, and it is emphasised 11 in the recital. That is why I say if the case is as 12 stark as they never had any functions whatsoever, the 13 fact that they have been declared persona non grata 14 doesn't debar you from arguing that they never had 15 immunity in the first place. 16 Article 11 is all about controlling the size of the 17 mission, and the receiving State is in principle 18 entitled to set size limits on the size of the mission 19 or the number of officials falling within particular 20 categories so as to minimise the impact that the mission 21 will have. 22 Again, that gives rise to facts that are within the 23 direct knowledge of the State: has such a limit been 24 set? Has it been exceeded? Was the relevant consent to 25 exceed it obtained? Those are all matters that could be 67 1 the subject of factual certification. 2 MR JUSTICE BLAKE: 11(2) enables the receiving State to 3 refuse to accept officials of a particular category. 4 MR DE LA MERE: Yes. 5 MR JUSTICE BLAKE: Does that mean investment consultants 6 attached to an embassy or something of that sort? 7 MR DE LA MERE: Yes, yes. Refuse to accept, for instance 8 the military attaché and say that had been a perennial 9 source of abuse or misuse for espionage, or they say "We 10 are no longer interested in having a military attaché, 11 we are not going to allow you to send one". 12 When you understand this provision in context, this 13 language of free appointment doesn't exist, it begs the 14 question. The question is, what is the nature of the 15 post required to be? And you have seen 16 Professor Denza's review that it must be one requiring 17 the exercise of diplomatic functions. That, for what it 18 is worth, is the view of Her Majesty's Government as 19 well, because we know that from the materials 20 post-dating the Libyan crisis. 21 First of all, can I ask you to turn up tab 36 in 22 bundle 2. This is evidence given in the wake of the 23 parliamentary enquiry after PC Fletcher was shot outside 24 the Libyan Embassy. In particular it is question -- you 25 see from the beginning of the document that it is all 68 1 about this use and abuse and whether it is occurring, 2 there is a series of questions and answers posed in 3 relation to it. 4 Question 22: 5 "Is the policy of HMG to accord diplomatic status to 6 any individual so nominated? 7 "HMG do not accord diplomatic status, this is done 8 by the sending member State pursuant to its right under 9 Article 7 of the Convention freely to appoint the 10 members of staff. There is no obligation to notify 11 appointments in advance, except for the head of mission, 12 and advance notifications are not usual, except where 13 a visa is required." 14 And that makes my point that visas will still be 15 required in certain circumstances: 16 "Where we are notified in advance of a nomination 17 through the visa system, we refuse to grant the visa in 18 cases where the nominated person is regarded as Directory: wp-content -> uploads -> 2016 2016 -> 2017 afoCo Landmark Scholarship Program 2016 -> Instructions for the Preparation of Camera-Ready Contributions to the Conference Proceedings 2016 -> Step student Scholarships for Year 10-13 2016 -> The united church of canada 2016 -> Idan raichel biography – May 2016 Brief Producer, keyboardist, Lyricist, composer and Performer Idan Raichel 2016 -> An introduction to centre’s interventions expanding access to justice 2016 -> Sanchar Shakti 2016 -> Unit analysis should help here. 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