The Freedom And Justice Party & Ors R (On the Application Of) v The Secretary of State for Foreign and Commonwealth Affairs & Anor

Factual and Procedural Background

This appeal concerns the immunities afforded to "special missions," defined by the UN Convention on Special Missions 1969 as temporary missions sent by one State to another with consent for specific tasks. The appellants, former members of a foreign government, challenged the immunity granted to a delegation member alleged to have committed torture. The Foreign and Commonwealth Office (FCO) accepted the delegation as a special mission, thereby granting immunity from arrest and prosecution, which the appellants contested. The Divisional Court previously held that customary international law requires receiving states to grant core immunities—personal inviolability and immunity from criminal jurisdiction—to members of special missions, and that this rule is recognized by the common law. The current appeal challenges that holding.

Legal Issues Presented

1. Whether customary international law requires receiving states to grant core immunities (personal inviolability and immunity from criminal jurisdiction) to members of special missions accepted by the receiving state.
2. Whether such immunities are recognized and incorporated into the common law of England and Wales.

Arguments of the Parties

Appellants' Arguments

• The evidence does not meet the high standard necessary to establish a rule of customary international law, requiring consistent and virtually uniform state practice accepted as law.
• The state practice relied upon is predominantly European and not sufficiently representative globally.
• Immunity, if any, should be limited to acts performed officially ("official acts") and should not extend to serious international crimes such as torture.
• The UN Convention on Special Missions (UNCSM) does not extend immunities to all members of a mission, excluding administrative and technical staff, thus creating uncertainty.
• There is no clear evidence of any state arresting or prosecuting a member of a special mission, indicating the absence of customary immunity.
• Work of the International Law Commission (ILC) in the 1960s and later projects show uncertainty or lack of clear customary international law on these immunities.
• Decisions of international courts, including the International Court of Justice (ICJ), do not establish customary immunity for special missions.
• Recognition of immunity should be left to Parliament, not the courts, given constitutional principles and the need for legislative clarity in criminal law matters.
• There is a tension between conferring immunity and the UK's obligations under the UN Convention Against Torture, which requires criminalisation and prosecution of torture.

Respondents' Arguments

• The Divisional Court correctly identified a clear rule of customary international law requiring receiving states to grant core immunities to members of special missions.
• The rule is supported by widespread, representative, and consistent state practice, including evidence from Europe, the Americas, Asia, and responses to the CAHDI survey.
• Opinio juris is demonstrated by state claims to immunity and acknowledgments that such immunities arise from legal obligation, not mere courtesy.
• The UNCSM, while not ratified by the UK, reflects and codifies existing customary international law principles regarding special missions' immunities.
• Immunity extends beyond "official acts" and applies even in cases alleging serious international crimes such as torture, consistent with functional immunity principles.
• The common law incorporates rules of customary international law unless inconsistent with constitutional principles or statutory law; no such inconsistency exists here.
• The executive's role in recognising members of special missions aligns with constitutional principles governing foreign affairs and does not unlawfully suspend domestic law.
• There is no conflict between the immunity recognized and the UK's obligations under the UN Convention Against Torture, as immunity is procedural and does not negate substantive obligations.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the evidence to determine whether a rule of customary international law exists requiring receiving states to grant core immunities to members of special missions. It applied the two essential elements: general state practice and opinio juris. The court found substantial and representative state practice across multiple jurisdictions, including the United Kingdom, the United States, and various European and American states, supported by surveys such as CAHDI and scholarly opinion. The court acknowledged some variations in practice but concluded that such differences do not negate the existence of a customary rule when the overall practice is consistent and accepted as law.

The court rejected arguments limiting immunity to official acts or excluding serious international crimes, reasoning that immunity is functional to ensure the mission's effective performance and personal inviolability is essential. It held that customary international law does not recognize exceptions for allegations of torture or similar crimes in this context, consistent with procedural immunity principles.

Regarding the incorporation of this customary international law into the common law, the court reaffirmed the presumption that customary international law shapes the common law unless incompatible with constitutional principles or statute. It distinguished immunity from the creation of new criminal offences, noting that immunity protects from process rather than imposes liability. The court found no constitutional or statutory impediment to recognizing the immunities as part of the common law. It emphasized that the executive's role in recognizing members of special missions is consistent with constitutional principles governing foreign affairs and does not unlawfully suspend domestic law.

Finally, the court addressed concerns about conflicts with the UN Convention Against Torture, concluding there is no conflict between procedural immunities and substantive obligations under that treaty.

Holding and Implications

The appeal is DISMISSED.

The court held that a rule of customary international law exists obliging receiving states to grant members of special missions, accepted as such, core immunities of personal inviolability and immunity from criminal jurisdiction for the duration of their visit. This rule is recognized and incorporated into the common law of England and Wales. The decision confirms that such immunities are procedural in nature and apply even in cases alleging serious international crimes, without exception under current customary international law. The ruling affirms the executive's role in recognizing special mission members consistent with domestic constitutional principles.

No new precedent altering the scope of immunity or the relationship between international law and domestic law was created beyond affirming existing principles as applied to special missions.