Recognition of Customary International Law Immunities for Special Missions: A New Precedent from EWCA Civ 1719

Introduction

The case of The Freedom And Justice Party & Ors R (On the Application Of) v. The Secretary of State for Foreign and Commonwealth Affairs & Anor ([2018] EWCA Civ 1719) represents a significant development in the intersection of customary international law and the common law of England and Wales. This appeal primarily addressed whether the United Kingdom is bound by customary international law to grant core immunities—specifically personal inviolability and immunity from criminal proceedings—to members of special missions. The appellants, former members of the Egyptian government, sought the arrest of Lt. General Hegazy, a member of a special mission visiting the UK, alleging his involvement in torture during the downfall of their government.

Summary of the Judgment

The Court of Appeal unanimously dismissed the appeal, affirming the Divisional Court's earlier decision that customary international law does indeed oblige the UK to grant core immunities to members of special missions. Furthermore, the court held that such customary international law is incorporated into the common law of England and Wales. As a result, members of special missions recognized by the receiving state are entitled to personal inviolability and immunity from criminal jurisdiction for the duration of their mission.

Analysis

Precedents Cited

The judgment extensively referenced key international treaties and judicial decisions to substantiate the recognition of customary international law immunities. Notably:

Vienna Convention on Diplomatic Relations (VCDR), 1961: Established immunities for permanent diplomatic missions, serving as a foundational comparison for special missions.
UN Convention on Special Missions (UNCSM), 1969: Although the UK did not ratify this convention, its definitions and provisions were instrumental in shaping the court's understanding of special mission immunities.
International Court of Justice (ICJ) Cases: Cases such as the Arrest Warrant (Democratic Republic of the Congo v Belgium) and Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) were examined, albeit noting the lack of direct support for customary immunities from these rulings.
Common Law Cases: Reference to historical cases like Trendtex Trading Corp. v Central Bank of Nigeria highlighted the evolution of state immunity principles within domestic law.

Legal Reasoning

The court's analysis was rooted in the classical criteria for establishing customary international law: consistent state practice and opinio juris (a sense of legal obligation). The Divisional Court's extensive examination of state practices, including responses from a wide array of countries and jurists' opinions, convinced the court of the existence of a customary rule obliging the UK to grant core immunities to special missions.

The appellate court emphasized that while the UNCSM did not automatically bind the UK, the widespread and consistent state practice among numerous states—coupled with scholarly consensus—established the necessary customary norms. The court also clarified that whether immunities apply to all members of a mission or only specific roles within it depends on the receiving state's recognition of the mission members as representatives, thereby affirming the core immunities.

Impact

This judgment solidifies the position that customary international law immunities for special missions are part of the common law in England and Wales. It ensures that members of special missions recognized by the UK cannot be arbitrarily detained or prosecuted during their missions, provided they are accorded the necessary immunities. This has profound implications for international diplomacy, as it reinforces the protection of state representatives and facilitates unimpeded diplomatic engagements.

Moreover, the decision underscores the judiciary's role in integrating customary international law into domestic law, provided there is clear evidence of its existence and acceptance. This sets a precedent for future cases where international norms impact domestic legal proceedings, particularly in areas involving diplomatic and international relations.

Complex Concepts Simplified

Customary International Law

Customary international law arises from the consistent and general practice of states accompanied by a belief that such practice is legally obligatory (opinio juris). Unlike treaties, which are formal agreements between states, customary international law reflects unwritten rules that have evolved over time through state behavior and mutual recognition of obligations.

Opinio Juris

Opinio juris refers to the belief held by states that a certain practice is carried out of a sense of legal duty. It distinguishes customary practices that are followed merely out of convenience or tradition from those that constitute binding legal obligations.

Special Missions

A special mission is a temporary diplomatic mission sent by one state to another with the consent of the host state. Unlike permanent diplomatic missions, special missions are established for specific purposes or tasks and are not ongoing.

Core Immunities

Core immunities refer to essential protections granted to members of diplomatic missions, including personal inviolability (protection from arrest or detention) and immunity from criminal proceedings. These immunities ensure that diplomatic representatives can perform their functions without interference.

Conclusion

The Court of Appeal's decision in The Freedom And Justice Party & Ors R (On the Application Of) v. The Secretary of State for Foreign and Commonwealth Affairs & Anor reaffirms the vital role of customary international law in shaping domestic legal frameworks. By recognizing that core immunities for members of special missions are entrenched in customary international law and incorporated into the common law, the judgment ensures robust protections for diplomatic representatives. This alignment between international norms and domestic law not only facilitates effective international relations but also upholds the principles of justice and legal consistency within the UK judiciary.

Moving forward, this precedent serves as a cornerstone for cases involving diplomatic immunities and reinforces the judiciary's commitment to honoring international legal standards. It exemplifies the dynamic interplay between international obligations and domestic legal processes, fostering a coherent and respectful approach to international diplomacy and law.