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| 15 somebody as an ambassador, or recognition of a special
16 mission as in the Tega case where effectively it is 17 a necessary part of the analysis that the UK has agreed 18 to treat with this person, this government, this 19 mission, this special envoy. 20 In relation to the appointment of a diplomat, 21 agreement, agrement, is no part of the analysis. The 22 appointment of a diplomat absent the special case of 23 a head of mission is a universal act. So there is no 24 question of the one voice doctrine applying in that 25 context in the way my Lord submits or suggests. 35 1 MR JUSTICE BLAKE: I am not submitting anything. 2 MR DE LA MERE: But, secondly, there is a potential for 3 conflict in a number of circumstances. There is 4 a potential for conflict if the approach of the FCO on 5 law on this question of whether or not there is 6 a functional test to who is a diplomat differs from that 7 of the court. But it is the role of the court, and the 8 Act is perfectly clear, to decide questions of law. And 9 in deciding questions of law, you will decide what 10 issues of fact are relevant to the determination of the 11 issue. 12 That is why we point in particular to the Apex case, 13 because it is a very close analogy to the problem that 14 confronts my Lord. In the Apex case the question of law 15 was what amounts to somebody who is part of the royal 16 household under section 20 of the State Immunity Act. 17 That was a question of law, how close did the proximity 18 have to be, to what extent was the discharge of public 19 functions and responsibilities on behalf of the 20 sovereign relevant, and matters of that kind. 21 The approach of both the court of first instance and 22 the Court of Appeal is that that is a question of law. 23 We will decide what questions of fact are relevant to 24 the determination of that particular issue. 25 MR JUSTICE BLAKE: Yes, but I mean there was no certificate, 36 1 and indeed the Foreign Office expressly said in response 2 to Mr Justice Vos', as he then was, request: this is not 3 with in our knowledge or information, the best we can do 4 is offer you the thoughts of Sir Arthur Watts in 5 a lecture. 6 MR DE LA MERE: With respect, my Lord, that is not, in my 7 submission, how I read the case. There was 8 a certificate. The certificate certified such facts as 9 the Secretary of State was able to certify. 10 MR JUSTICE BLAKE: You had better take me to the case, then. 11 MR DE LA MERE: And the Secretary of State said he wasn't 12 able to certify the facts of relevance to the issues of 13 law but then proceeded to provide assistance to the 14 court. I will show you another certificate that seeks 15 to do what my learned friend says this certificate does 16 and you can see the difference between them. Because we 17 say this certificate does no more than simply say two 18 facts have been notified by the Qataris to the UK 19 officers. 20 MR JUSTICE BLAKE: I understand that, and indeed it is 21 common ground between you that the FCO cannot certify 22 issues of law and leaves conclusions of law to the court 23 to reach. But as I understand it, where a certificate 24 has been issued that someone has been appointed to 25 a mission and is recognised as having been appointed to 37 1 a mission, and at least from the point of view of the 2 receiving State nothing has happened to cause that 3 appointment to be terminated those are all facts which 4 then aligned against the Diplomatic Privileges Act and 5 the Vienna Convention leaves very little left for the 6 court to do because it is common ground that if you are 7 a member of a mission you are immune, and the exemptions 8 for immunity don't apply. So we are in different 9 territory, I think, to Tega, Bagga, and the case -- what 10 was the case I read last night? Apex. 11 MR DE LA MERE: Apex. 12 MR JUSTICE BLAKE: Yes, Apex. 13 MR DE LA MERE: With respect, my Lord, we are not, because 14 that is not what the certificate says when one reads it 15 carefully and in context. It simply says the Qataris 16 have notified us that they have appointed, that is the 17 fact. Notification is the fact. Whether or not the 18 post in question is in substance a diplomatic post is 19 not a fact -- 20 MR JUSTICE BLAKE: But -- 21 MR DE LA MERE: -- that is subject to the certificate. 22 MR JUSTICE BLAKE: -- insofar as it is relevant, he is on 23 the diplomatic list, isn't he? 24 MR DE LA MERE: Yes. But as we will see when we look at the 25 practice, the reason that the receiving State doesn't 38 1 trespass into substantive questions typically is they 2 don't have information to decide whether or not somebody 3 is in substance is a diplomat or is in substance 4 a member of the administrative and technical staff. It 5 is outside their knowledge. 6 MR JUSTICE BLAKE: They don't have information but equally 7 the international court says it is up to the sending 8 State who they appoint. 9 MR DE LA MERE: I don't want to jump ahead, I am getting out 10 of structure a little bit, but with respect, that is 11 jumping straight to Article 7 and I am going walk you 12 through the Convention. I don't accept that's how the 13 Convention works. 14 MR JUSTICE BLAKE: I have been through it once, but there we 15 are. 16 MR DE LA MERE: The stance of my learned friend, with 17 respect, conflates two issues, freedom to appoint, and 18 it is no part of our case to say that they have any 19 impediment beyond those contained in the Convention as 20 to who they choose to appoint to diplomatic posts, but 21 that is a discrete issue from whether or not the post 22 appointed to is itself a diplomatic post. 23 With respect, their approach opens up a vista of 24 really quite wide ranging potential abuse. It opens up 25 a vista of diplomatic posts being capable of sale to the 39 1 highest bidder by small or corrupt States. A party can 2 pay for appointment, a bit like Mr Tega did, or so the 3 facts had the whiff of in the Costa Rican case, and then 4 seek to travel or pursue their life under cover of 5 immunity. If simple certification of appointment is 6 enough, and that is my learned friend's case, then that 7 is the vista created. We say the mere invocation of the 8 appointment without proof of the nature of the functions 9 being discharged is not enough. 10 Let's look at this in the lens of the real world. 11 In a typical case, let's say an employment dispute, 12 there would be no basis to look behind a party's 13 assertion backed by their embassy that they are 14 discharging diplomatic functions, it takes an extreme an 15 atypical case for a party to be able to say this 16 individual is not acting in any such way, has never 17 performed any such diplomatic function. But this is 18 such an extreme case. We do have such evidence. And 19 it is precisely because we have an overwhelming case 20 that there are no diplomatic functions being exercised 21 that Ms Carss-Frisk is driven to making the extreme case 22 she makes, because the evidence shows that in substance 23 he is not a diplomat, but rather a very powerful and 24 influential man who was formerly in government, who has 25 secured diplomatic immunity. 40 1 Meanwhile he states publicly on every occasion he 2 speaks that he has retired from government, he can speak 3 in a private capacity, he is pursuing his business and 4 spending time with his family, and he is happy in public 5 engagements to engage in the very hottest topics of the 6 day, for instance the fairness or not of the trial of 7 Mohamed Morsi in Egypt, not really characteristic of 8 somebody who is engaged in a diplomatic function. 9 The second group of issues relate to certification, 10 and you have anticipated that. What I propose to do in 11 diplomatic immunity is to address five topics, my Lord. 12 Firstly, I want to go back through the Convention 13 and explain in our submission how it all knits and 14 kneads together, addressing the key case law in relation 15 to the relevant Articles. 16 Then, secondly, I want to look at the law on 17 certificates. 18 And, thirdly, I am going to look at this certificate 19 and its effect properly construed as a matter of 20 domestic law. 21 And, fourthly, I want to look at the potential 22 impact of Article 6 of the Convention. 23 Then, fifthly, I am going to finish by addressing 24 the evidence in relation to functions. 25 Let's start with the Convention, tab 7 of bundle 1. 41 1 We start our analysis a little bit earlier than 2 Ms Carss-Frisk. We start our analysis with the recital. 3 The critical recital is that beginning "realising". 4 MR JUSTICE BLAKE: Recital to the Convention? 5 MR DE LA MERE: It is the penultimate recital: 6 "Realising that the purpose of such privileges and 7 immunities is not to benefit individuals but to ensure 8 the efficient performance of the functions of diplomatic 9 missions as representing States." 10 MR JUSTICE BLAKE: Yes. 11 MR DE LA MERE: That is, if you like, the legitimate aim 12 that underpins the entirety of the immunities that 13 follows. It is the discharge of the functions of the 14 mission. The simple point we make is that if somebody 15 is not engaged in the discharge of the functions of the 16 mission there is no legitimate or proper basis to accord 17 immunity. 18 That is the beginnings of the functional approach. 19 You then have the definition in Article 1(d) of members 20 of the diplomatic staff are members of the staff of the 21 mission having diplomatic rank. 22 Definition of "diplomatic agent" is the head of 23 mission or a member of the diplomatic staff. 24 Then the definition: 25 "Members of the administrative and technical staff 42 1 are members of the staff of the mission employed within 2 the administrative and technical service." 3 This is relevant for this simple point, the 4 immunities conferred on diplomats are different in 5 scope, wider in scope, to the immunities conferred on 6 admin and technical staff. A pointer yet again that you 7 have to engage in an appropriate case in this exercise 8 of characterisation or categorisation. 9 So different categories of individual caught, and 10 you will see there are other categories, private 11 servants, et cetera. 12 Article 2, not incorporated by the DPA but whether 13 or not an Article is incorporated or not despite some 14 faint suggestion to the contrary is really not relevant, 15 because as a canon of ordinary international law you 16 have to look at that treaty as a whole to make sense of 17 the contested provisions. Article 31 of the Vienna 18 Convention says as much. 19 Article 2: 20 "The establishment of diplomatic relations between 21 States and permanent diplomatic missions takes place by 22 mutual consent." 23 So there is an instance of something in relation to 24 which there is a fact within the knowledge necessarily 25 of the government: has the government given its 43 1 agreement? That fact would fall, in my submission, into 2 the fact of State category. 3 That is echoed, if you see in Article 4, just 4 picking that up out of order, in relation to heads of 5 mission: 6 "The sending state must make certain of the agrement 7 the receiving State has been given for the person it 8 proposes to accredit as the head of the mission to that 9 State." 10 So both the identity of the mission and the identity 11 of the head of mission or ambassador, in common 12 parlance, are matters for which agreement is required 13 and for which the one voice principle would apply. 14 It was those matters and those matters alone that 15 were the subject of the decision of Mr Justice Blair in 16 the Libya case that you looked at yesterday: 17 Then we come on to Article 3, which is, in my 18 submission, one of the critical provisions. It 19 describes the functions of a diplomatic mission 20 non-exhaustively but nevertheless helpful. It is 21 obvious oi non-exhaustive because it may be subject to 22 refinement and addition through State practice. 23 Article 3(1)(a) to (e) sets out various functions: 24 "Representing the sending State and the receiving 25 State, protecting the receiving State's interests, 44 1 negotiating the government of the receiving State, 2 ascertaining by all lawful means [that is the line that 3 is generally crossed by espionage] conditions and 4 developments in the receiving State, and reporting 5 thereon to the government of the sending State, 6 promoting friendly relations between the sending State 7 and the receiving State and developing their economic, 8 cultural and scientific relations." 9 When one looks at the evidence in relation to the 10 defendant, the assertion that he is engaged in 11 diplomatic functions really extends no way beyond 3(e). 12 That is really the hook on which they hang their hat as 13 to the particular function being discharged, he is 14 promoting friendly relations and the economic context is 15 effectively the argument made by the ambassador and the 16 Qatari Foreign Minister. 17 When you look at Article 3 you have to compare and 18 contrast Article 42, because Article 42 tells you what 19 are clearly as a matter of customary international law 20 codified in this particular Convention what are clearly 21 not diplomatic functions. 22 Article 42 says: 23 "A diplomatic agent shall not in the receiving State 24 practice for personal profit any professional or 25 commercial activity." 45 1 Article 42 and Article 3 are mutually inconsistent. 2 It is not the case, as my learned friends argue, that 3 the relevance of Article 443 is somehow confined to the 4 scope and interpretation of Article 31(c) and the 5 exception from immunity it contains; it is also relevant 6 to this question of categorisation, because if for 7 instance the evidence shows that an individual has never 8 gone to an embassy, has never once attended the 9 ambassador's reception and ate Ferrero Rocher chocolates 10 but instead has confined themselves exclusively to the 11 pursuit of business interests falling within Article 42 12 it is impossible to contend that that conduct, that that 13 activity falls within Article 3. 14 These are mutually exclusive categories, and proof 15 positive of that can be found in the Al-Malki case, 16 which you have not seen as yet, bundle 2 of the 17 authorities bundle, so keep the Convention open because 18 we are coming back to it, what I am going to do is to 19 look at the provisions and the case law relating to them 20 in turn. 21 Bundle 2, tab 29(a), does your Lordship have? 22 MR JUSTICE BLAKE: Yes. 23 MR DE LA MERE: The background to this case is this is one 24 of the many disputes or cases involving disputes about 25 diplomatic immunity in the employment context. 46 1 MR JUSTICE BLAKE: Yes. 2 MR DE LA MERE: Effectively the argument was that the 3 individual claiming immunity was employing trafficked 4 workers. 5 MR JUSTICE BLAKE: Yes, I think I have looked at this but -- 6 yes. 7 MR DE LA MERE: Employing trafficked workers to save 8 themselves money, and the substance of the argument was 9 if you are doing that you are engaged in commercial 10 activity. So the focal point of the dispute was all 11 about the proper interpretation of Article 31(c). The 12 Court of Appeal firmly concluded that these types of 13 domestic arrangements were not commercial activities of 14 the kind contemplated. 15 MR JUSTICE BLAKE: Yes. 16 MR DE LA MERE: But what is highly -- 17 MR JUSTICE BLAKE: That is because there was no issue that 18 they were diplomats -- 19 MR DE LA MERE: No issue. 20 MR JUSTICE BLAKE: -- and, therefore, the workers, if they 21 were going to get their claim going, they had to show an 22 exemption and that is the one they went for and they 23 didn't get it. 24 MR DE LA MERE: Exactly so. So it is not dealing with the 25 issue that we are dealing with, namely is there 47 1 a functional test, and I would go so far as to say we 2 have found no case addressing that issue one way or the 3 other. You can be sure that if we had it would be first 4 and foremost in both parties' skeletons. 5 MR JUSTICE BLAKE: Yes, I think I can be sure about that. 6 MR DE LA MERE: Yes. What is instructive in this case is 7 how the Master of the Rolls approaches the answers to 8 the questions and the use he makes of materials in 9 relation to Article 42 and what he says about it. 10 Can I ask you to pick up the analysis at 11 paragraph 10, page 937. First of all, we start with 12 international law 101: 13 "Article 31 of the Vienna Convention the law of 14 treaties provides so far as material a treaty should be 15 interpreted in good faith in accordance with the 16 ordinary meaning to be given to the terms of the treaty 17 in their context and in light of the object and 18 purpose." 19 The object and purpose is that recital. One would 20 have thought the ordinary meaning is if someone is 21 a diplomat they are a diplomat, they are doing something 22 that diplomats do. 23 Then it comes on to the Propend case at 11 and deals 24 with the judgment of Mr Justice Laws, as he then was in 25 that case, where he sets out his approach to that 48 1 particular phrase. 2 Propend was another case exclusively concerned with 3 issues under Article 31(1)(c). Despite my learned 4 friend's attempt to rely on page 615 and the 5 certificate, it really doesn't cast any light on the 6 issue we are dealing with now. 7 We don't have the terms of the certificate, as 8 Ms Carss-Frisk fairly pointed out, and more to the 9 point, there wasn't any scope for any sensible debate 10 about whether or not the functional test was made. The 11 individual in question was after all the police liaison 12 officer who had been attending police liaison meetings 13 between the Australian and the British police, and that 14 is a classic diplomatic function, and that is 15 representing the State with the organs of another State. 16 There was no basis to say he wasn't a diplomat. There 17 was just instead a very narrow question about whether or 18 not the cross-undertaking was capable of being 19 characterised as falling within the Article 31(c) 20 exception. 21 So Propend doesn't take us any further other than 22 what it is said what the phrase means. It means any 23 activity which might be carried on by the diplomat on 24 his own account for profit, such professional activity 25 would arise for instance in the case of a doctor and so 49 1 on and so forth. And Mr Justice Laws said the rationale 2 of 31(c) is to ensure that no immunity inures for the 3 benefit of the diplomat where for one reason or another 4 his activities do not comply with the Article 42 5 prohibition. So far so good. 6 13 then says this is the approach in the States. 7 Then what is significant for our purposes is how the 8 Master of the Rolls then buttresses that reasoning at 15 9 and following. Could I ask, my Lord, to probably -- 10 actually a convenient way of doing it may be, given the 11 need for a shorthand writers' break, to ask you to read 12 again 15 through to 30 whilst the shorthand writers have 13 their break. 14 MR JUSTICE BLAKE: And do so now. 15 MR DE LA MERE: I know it is a bit early but ... 16 MR JUSTICE BLAKE: Yes, all right I will do that. 17 MR DE LA MERE: Can I ask you to note this when so doing 18 that the quotations and the materials drawn upon in 19 paragraph 20 through to 23, that is the ILC draft 20 Convention, the position of the Guatemalan delegate and 21 the position of the Japanese and Yugoslav delegates were 22 all materials relied upon in the FCO's submission to the 23 court, could you bear that in mind when reading this 24 passage. 25 MR JUSTICE BLAKE: Yes, I will say somewhere around 25 50 1 minutes to 12 we will resume. 2 MR DE LA MERE: I am grateful, my Lord. 3 MR JUSTICE BLAKE: That may not be precise. 4 (11.25 am) 5 (A short break) 6 (11.35 am) 7 MR DE LA MERE: So, my Lord, what do we get from that 8 passage. Firstly, we get the importance of object and 9 effect in the interpretation of the relevant treaty. In 10 particular, you will see that a critical part of the 11 Master of the Rolls' analysis is the very recital I've 12 pointed you to and consideration of the functions as 13 listed in Article 3, that is paragraph 18. That is all 14 part and parcel of an assessment of the meaning of the 15 treaty looking at the treaty as a whole. See 16 paragraph 15. 17 The emphasis at 16 is illustrative of what the 18 Master of the Rolls says is the principle which 19 underlies diplomatic immunity: 20 "If a diplomatic agent does what he is sent to the 21 receiving State to do, that must be diplomacy, then the 22 activities which are incidental to his life as 23 a diplomatic agent are covered by the immunity." 24 Things that aren't, are not diplomatic activity. 25 The second point we get is the strength of the 51 1 hostility to the undertaking of commercial activity. We 2 get that in particular from the commentary, the 1958 3 commentary which describes commercial activities as 4 normally wholly inconsistent with the position of 5 a diplomatic agent. And that one possible consequence 6 of engaging in such activities will be to be declared 7 PNG, persona non grata. That is reinforced by all the 8 further materials set out at 21 through to 23. 9 Now, two points we say flow from that linkage to the 10 recital to Article 3 of Article 42. Firstly, what one 11 can be sure of is that Article 3(1)(e) or indeed any of 12 Article 3(1) cannot embrace any activity that falls 13 within Article 42, that cannot be any form of diplomatic 14 function. So insofar as you are engaged directly or 15 indirectly in the promotion of your own actual or 16 potential business interests in a host State or indeed 17 anywhere you cannot be engaged in diplomatic functions. 18 If you are a key foreign investor, an active investor in 19 the host State, your putative Article 3(1)(e) function 20 cannot embrace anything from which you simultaneously 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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