State Immunity and Statutory Exceptions: the High Court v the International Court?

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In this post, Dr Alexander Orakhelashvili discusses the use of statutory exceptions to State immunity in English law, at the example of the recent High Court decision on Al-Masasir v Saudi Arabia

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The case of Al-Masasir v Saudi Arabia, recently decided by the High Court in England, raises interesting issues regarding the scope of section 5 of the 1978 State Immunity Act, which deals with territorial torts. Most importantly, the decision highlights challenges that the use of statutory exceptions to foreign State immunity poses to the overall coherence of the immunity-related jurisprudence of UK courts, and to the compatibility of national court decisions with international law obligations of the UK.

The case involved sending spyware from Saudi Arabia to mobile phones of a person residing in the UK, a political opponent of Saudi Arabia’s government. The Court decided that Saudi Arabia is not immune, under section 5 of 1978 State Immunity Act, for what amounts to injury “caused by an act or omission in the United Kingdom”. Most recent history has already illustrated what stakes the use of section 5 could involve. “Suppose”, Justice Knowles suggested on terms reminiscent the situation with former Russian agents Litvinenko and Skripal, “to take a not entirely theoretical example, a foreign state …  sends two agents to the UK to kill a dissident opponent by poisoning him. The operation is planned abroad. The radioactive poison is made abroad. The operatives bring the poison into the UK from abroad. They meet with the dissident in a London hotel, poison his tea, and he dies. … Can the dissident’s representatives sue the foreign state in the High Court for damages for his wrongful death?”

The High Court professes here to adopt the so-called “dualist” position, and follow the clear requirements of domestic legislation, even if the forum State will thereby end up violating its international obligations. As to what international obligations would thereby be violated, the Court has alluded to a previous case of Jones v Saudi Arabia, in which the House of Lords has suggested that torture is a sovereign act (jure imperii) for which the UK was bound, under international law, to grant immunity to Saudi Arabia. Knowles J then proceeds to say that “installing spyware on [the plaintiff’s] iPhones, is less obviously sovereign in nature than torture. Unlike torture, it is an act which can be carried out by a private individual.” But eventually he concludes that installing spyware is also a sovereign act, but section 5 removes immunity for it because it is deemed to be perpetrated in the UK. The Judge has made this conclusion clearly under the influence of Jones in which the House of Lords has concluded that torture is a sovereign act, because Article 1 of 1984 Torture Convention defines it as a treatment “inflicted by or with the connivance of a public official or other person acting in an official capacity”. It could well be as a matter of fact, and spyware could be installed on anyone’s phone the same way.

If one subscribes to the above position, one is bound to conclude that, even if installing spyware involves jure imperii activities for which immunity would be owed by the UK to Saudi Arabia then, as a matter of international law, the rule-exception debate arising as a matter of SIA 1978 is irrelevant altogether. For, because an exception under SIA as a piece of domestic legislation is not conclusive as to the existence of any exception from any putative general (or customary) rule of immunity under international law. On that view, the UK law removes immunity for activities for which international law requires that immunity should be available. For, jure gestionis activities do not form an exception from jure imperii activities, because the two are generically different categories, one involving the use of public authority exclusively available to a State, and another involves no exercise of such authority.

However, if the restrictive doctrine of State immunity is used properly, then the UK does not have to be seen to have violated its international obligations. In the first place, customary law does not oblige one State to grant immunity to another State. In the second place, there is no significant difference between torture and installing spyware for the purposes of the restrictive doctrine. Neither of them requires the use of State authority, and both of them can be perpetrated by private persons and non-State entities as well.

The truth of the matter is that the issue here under consideration has nothing to do with the “official capacity” of a perpetrating agent. The wording used in CAT 1984 has nothing to do with State immunity, and none of CAT’s provisions touch upon it. Instead, the wording in Article 1 CAT is used for entirely different purposes. Acting in an official capacity has nothing to do with the activities of State officials. The phrase “other person acting in an official capacity” instead relates to torture perpetrated by rebel, guerrilla, or insurgent groups who exercise de facto authority in certain regions or of warring factions in so-called ‘failing States’. Hence, public or sovereign authority of a State generically differs from a non-State actor’s “official capacity”.

The House of Lords in Jones chose to place emphasis on the words “official capacity” in order to avoid the use of a more traditional and generally received test of sovereign authority under which the key question would be whether an entity other than a State could also perpetrate an act of torture or whether it takes being a State or its official to perpetrate it. It is plainly obvious that a State official can torture in its official capacity and in his free time alike; and persons other than State officials can torture as well. The nature of torture is the same in whichever capacity it is perpetrated. The aim behind the manipulation of these criteria in Jones was to give Saudi Arabia treatment that is more advantageous than it would obtain had the law been straightforwardly applied to its conduct and claims. As explained elsewhere, the adjudication process has returned the outcome to be rationalised according to Carl Schmitt’s friend-enemy theory. According to this theory, Saudi Arabia is a friend of the forum State and its victims had to be accordingly exposed to the harshness of total politics.

If, as Knowles J has thought, section 5 SIA removes immunity for all acts regardless of their (non)sovereign nature, then it is not clear why the characteristics of torture or spyware installation needed to be gone into. It is absolutely obvious that not only torture and installing spyware on someone’s phone both fail to be sovereign acts, but also that this enquiry was utterly unnecessary with regard to application of relevant British statutory provisions to underlying facts. This has to be so, as section 5 does not require differentiating between sovereign and other acts of a foreign State (indeed none of SIA provisions do unless they expressly mention the test of public authority). Section 5 is entirely about the locus of a tort (whether by virtue of its initiation or completion). If the answer given on the basis of the restrictive doctrine does not matter for construing the scope of section 5, then there is no need to delve into that question as deeply as the High Court judgment does.

What the High Court’s comparison of spyware with torture does is to contribute to keeping alive the myth generated in Jones that torture is a sovereign act and that customary international law requires that immunity be granted to torturing States when sued abroad. The House of Lords (as did indeed any court that adopted the similar approach) failed to give evidence as to the existence of the existence of such rule of customary international law. In addition, in proceedings before the International Court of Justice, Italy has self-harmingly conceded that State immunity was a requirement under customary international law, whereby it gave advantage to its opponent, Germany, and made its own case more difficult to argue.

Moreover, on ICJ’s terms, section 5 SIA is contrary to international law, because the International Court has also refused to give weight to the territorial tort exception under international law. Furthermore, if the ICJ’s 2012 decision is followed, American legislation should also be seen to violate international law, as section 1605 FSIA dealing with expropriation removes State immunity with regard to “rights in property taken in violation of international law”, thus contradicting the truism that legality of an State conduct under international law and immunity of the same State for that act invariably have to be different issues. This is just as obvious as is the problem with the ICJ’s disapproval of the US legislation removing immunity for State involvement in terrorism, a policy persevered by the US Congress even after the ICJ’s judgment was handed down in 2012. Thus, if there is customary law on State immunity, it has to be one of very special kind and rationalised on the basis of policies and ideology favoured by judges, as opposed to State practice.

Under customary international law, Saudi Arabia would have no claim to raise against the UK for violating its immunity, whether that happens on the basis of SIA or otherwise. This is so for the sole reason because, under customary international law, the UK does not owe to Saudi Arabia any obligation to grant immunity to it or to its agents. It is solely owing to this reason that Al-Masasir is a case in which the plain text of SIA, namely section 5 was applied in accordance with international law.

Moreover, and over and above the outcome reached in this case, the High Court decision reveals the continuing fragility of the official line on State immunity for torture and the continuing lack of evidence to substantiate that official line; except by citing previous court decisions, of which Jones was the first national court decision which concluded that torture was a sovereign act under international law. In addition, political stakes with Al-Masasir remain as high as they were in Jones or with regard to Al-Yamama contracts. Hence, even if the solution in this case was required by the plain text of a UK statute, the irritation it could cause to Saudi Arabia is no less than awarding damages to victims of torture in Jones would have caused to it. Installing spyware on a political opponent’s phone involves no fewer political stakes for Saudi Arabia than torturing victims involved in Jones. Attempts to stop these proceedings are, therefore, unlikely to go away: even though the law is the law regardless and the text of section 5 says what it says, the area here under consideration has already witnessed a series of manipulation in legal reasoning to get a result that is desirable from political and ideological points of view.

It is not impossible that a future court decision would pretend interpreting SIA in line with international law and construe section 5 as applicable to sovereign acts only, i.e., ones that the domestic Judiciary would be prepared to qualify as sovereign acts; or interpret the territoriality criterion narrowly and exclude from section 5 acts initiated from abroad and accomplished on the British soil. That would presumably still let attacks similar to those involved in Litvinenko and Skripal cases be subsumed by the text of section 5. This would be difficult to present as a coherent solution because even in situations similar to that of Litvinenko and Skripal State activity would begin abroad, as the Judge has indeed pointed out. A distinction between acting through one’s physical presence and acting via modern communications facilities would still leave intact the case of attaching a State’s strategic computer assets. Hence, a narrow construction of section 5 would also encourage more than one State to carry out conduct similar to one involved in Al-Masasir, or worse. A court reading down section 5 would inevitably assume enhanced role in weighing up policy considerations and would not evade causing serious political consequences. For, the “orthodox” or “conservative” myth notwithstanding, grant of immunity to a State is neither concerned merely with a one-off conduct carried out in the past, nor is it entirely divorceable from the substantive legality of acts for which immunity is granted. Manipulation of legal reasoning and concepts does not entail stability and could have both adverse normative and political consequences. Hence, and whether the Kingdom of Saudi Arabia gets the result it desires at possible subsequent stages of litigation in the UK, the Emperor is bound to remain naked.

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