A recent Supreme Court ruling has eroded immunities for diplomats faced with civil claims in England, potentially resulting in negative consequences for British interests overseas.
International law provides diplomats posted overseas with immunity from most of the host state’s domestic laws. Such “diplomatic immunity” protections have evolved over centuries within the carefully balanced system of international relations. They sustain the international order, enabling diplomatic missions to function abroad without interference from the host state, including its judiciary, even during times of conflict.
In the split judgment in the case of Basfar v Wong, the court held that a foreign diplomat was not immune from a civil claim about his treatment of domestic staff. The court came to that conclusion despite the fact that the Vienna convention on diplomatic relations, to which the UK is a party, provides for only limited exceptions from such immunity.
One such exception is personal commercial activity undertaken by a diplomat. In Basfar, the court decided that the alleged employment conditions of a diplomat’s relocated domestic staff — which were legal in the state of origin — can transform this otherwise immune diplomatic activity into not-immune commercial activity.
Basfar has caused concern in foreign ministries around the world as being a departure from international norms. State parties to the convention agree that immunities under the treaty must apply at all times, even when conduct of diplomats might appear inappropriate or unfair to hosts, so as to protect the greater good of stable international relations.
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Diplomats cannot act with impunity; there are international mechanisms for holding them to account for violating host state laws. But it is a core principle of international law that host state courts only have jurisdiction over diplomats under narrow circumstances or with the express agreement of the sending state.
If a state fails to provide diplomatic protections, other states legitimately can do so as well to that host state’s diplomats. This is the risk now facing the UK’s diplomatic activities overseas.
Basfar has blurred the UK’s domestic immunity laws. There is a danger that diplomats in the UK will increasingly be brought before English courts in a way that could not happen in, for example, France or the US. This threatens London’s pre-eminent position as a hub of diplomatic activity and seat of international organisations.
Moreover, host states can now legitimately deny certain immunities to UK diplomats on the grounds of reciprocity. Ultimately, these developments will hamper UK diplomatic activities overseas, including raising difficult issues such as human rights.
Robert Volterra is a partner and Jehad Mustafa an associate at the law firm Volterra Fietta
