Foreign Office Certificates and Diplomatic Immunity in the Assange Affair

The Assange saga continues with recent decisions in the English Courts upholding the warrant for Julian Assange’s arrest. Dapo’s recent post on Ecuador’s purported appointment of Julian Assange as one of its diplomats to the UK considered the position on this issue as a matter of international law. However, a related issue is how the relevant provisions of the Vienna Convention on Diplomatic Relations (VCDR) would be applied if the issue were to arise in domestic proceedings in England and Wales. In other words, if Assange were to leave the embassy, and were to be arrested and prosecuted for failing to surrender, would he be able to rely, in an English court, on diplomatic immunity under the VCDR? Thinking through this question involves a degree of speculation, for we don’t yet know what the Foreign and Commonwealth Office’s (FCO) posture towards any such claim would be. We will assume, however, that the FCO will maintain an approach consistent with its statement (reported here) of 11 January 2018: ‘The government of Ecuador recently requested diplomatic status for Mr Assange here in the UK. The UK did not grant that request, nor are we in talks with Ecuador on this matter.’ In other words, we will assume that the FCO would not recognise Assange as a diplomat.

How the matter would be resolved in domestic English proceedings is a difficult question. It involves consideration of the respective roles of courts and the executive in matters of foreign affairs, the distinction between questions of fact and questions of law in giving effect to FCO certificates, and the potential continued application of the common law principle that the courts and the executive should speak with one voice.

The Diplomatic Privileges Act

As a matter of domestic law, the starting point is the Diplomatic Privileges Act 1964 (DPA), which gives effect to the VCDR. In thinking through how the Assange matter would proceed in a domestic court, Section 4, which sets out the role of the FCO in matters of this kind, is crucial:

‘If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact.’

In recent years, domestic courts in the UK have dealt with a number of immunity cases centred on the effect of FCO certificates – both under the DPA and other legislation. Most significant is the decision of the Court of Appeal in Al-Juffali. In Al-Juffali, previously discussed by Philippa Webb on this blog, the appellant had applied to strike out a claim by his wife on the basis that he was entitled to immunity as Permanent Representative of St Lucia to the International Maritime Organisation. There was little doubt that his appointment was spurious – the appellant appeared to have no experience of matters relating to the work of the IMO and was said by the High Court to have secured appointment with the sole intention of defeating his wife’s claim. Indeed, it was on this basis – applying a functional approach – that the High Court looked behind the formal recognition of appointment in the FCO certificate to hold that the appellant had not, ‘in any real sense, taken up his appointment.’

The Court of Appeal held that the High Court was wrong to conclude that the husband was not entitled in principle to immunity. Two complementary strands of reasoning in the CA’s decision are relevant for the present discussion. First, the Court held that ‘Article 39 [VCDR] makes it plain that diplomatic immunity starts before the diplomat begins to perform any diplomatic functions when he enters the receiving State “on proceeding to take up his post” or “from the moment when his appointment is notified to the Ministry of Foreign Affairs”’ (para 27). Second, the Court emphasised the conclusive nature of the certificate issued by the FCO on the underlying factual matter. Here, that certificate stated that the FCO had been notified of the husband’s appointment as Permanent Representative to the IMO and that it had not been notified of any subsequent termination of his functions (para 42). The CA’s legal interpretation of the relevant treaty provision and FCO’s conclusive factual determination lead to the conclusion that the husband was entitled in principle to immunity.

The formal approach to the effect of FCO certificates in Al-Juffali might be read to mean that any denial by the FCO of Assange’s status as a diplomat would likewise be conclusive in domestic proceedings. Such a reading would be too quick – that is not quite what the case stands for. To understand why, it is critical to emphasise a distinction between questions of law and questions of fact built into the Diplomatic Privileges Act. As noted above, Section 4 renders conclusive the FCO’s certification of any fact relating to a question of immunity. In Al-Juffali, the Secretary of State certified that (i) ‘he had been notified of H’s appointment and of H’s “arrival date” and (ii) he had not been notified that H’s diplomatic functions had been terminated’ (para 42). These facts then grounded the CA’s legal determination.

Embedded in this fact / law distinction is a constitutional concern about the respective roles of the executive and judiciary in this context. As in other areas of law, the distinction can be elusive. In the context of diplomatic immunities, to see how it plays out consider these three questions:

1. Has D’s appointment as a diplomat been notified to the FCO by the sending state?
2. Has D been accepted/recognised/accredited by the FCO as a diplomat?
3. Is D entitled to diplomatic immunity?

Questions 1 and 2 are certainly questions of fact while question 3 is certainly a question of law. Under the DPA, the FCO’s statement is conclusive on factual questions but the court determines the legal question. As emphasised by Elizabeth Wilmshurst in 1986:

‘[i]t is not for the Foreign Secretary to certify (though he is often asked to do so) whether a diplomatic agent is immune from suit in relation to particular proceedings. All that he can do is to certify whether or not a person has been notified to him as a diplomat; it is for the court to determine whether in consequence of that fact that person is entitled to immunity.’ [“Executive Certificates in Foreign Affairs: The United Kingdom” (1986) 35 ICLQ 157]

Wilmshurst’s point that the Foreign Secretary is often asked to certify the immunity question itself remains true today. Indeed, in the recent case of Al Attiya, the Court directed the parties to write jointly to the FCO seeking a certificate answering both questions 1 and 2 (para 6). In response, the certificate simply answered the question on notification (para 9).

However, it is important to note that whether a factual question is relevant to the determination of an issue is a question that depends on the construction of the law and the relevant legal criteria to be applied. Thus, if the legal rule under the VCDR is that on notification by the sending state D has the status of a diplomat and is entitled to immunity, Question 2 is irrelevant to the legal question. It is for the court, on the basis of the law, to determine what facts are relevant. In this specific context, to consider Question 2 above to be relevant and any FCO certification on that issue determinative has the potential to unbalance the constitutional scheme set up by the DPA as to the respective roles of the court (giving force to legislative choice) and the executive.

One final point bears emphasising. The distinction drawn above as to the roles of the executive and court is specific to the statutory scheme of the DPA – it need not be the same in other contexts. Consider Section 21(a) of the State Immunity Act 1978: ‘A certificate by or on behalf of the Secretary of State shall be conclusive evidence on any question… whether any country is a State for the purposes of Part I of this Act.’ Here, then, the executive has within its jurisdiction a much wider determination and the respective roles of the court and the executive break down differently. The executive’s determination of whether or not a country is a state resolves the question of whether an entity is to be treated as a state under the Act, although that question that might be regarded as raising both factual and legal issues that the court would be competent to determine on its own (See Re Al-Fin’s Corporation’s Patent [1970] Ch. 160).

Speaking with One Voice – A Wider Principle?

Is that, then, the end of the matter? If the Assange matter came to court and the FCO issued a certificate stating (i) that it has been notified of appointment by Ecuador, but that (ii) it did not accept or recognise such an appointment, is the fact that notification is what matters legally enough to dispose of it? This is exactly the situation Lord Parker feared in the older case of ex parte Teja, later overruled on this point: ‘I confess that at the very outset this argument, simple as it was, seemed to me to produce a frightening result in that any foreign country could claim immunity for representatives sent to this country unilaterally whether this country agreed or not.’ Would the Court grant Assange immunity in the face of objection by the executive that it did not recognise any such claim?

It is here where the idea of a wider principle that the executive and judiciary must speak with one voice might be thought relevant. That principle was articulated most evocatively by Lord Atkin in The Arantzazu Mendi:

‘Our state cannot speak with two voices on such a matter [that is state sovereignty and matters flowing from it], the judiciary saying one thing, the executive another. Our sovereign has to decide whom he will recognise as a fellow sovereign in the family of states; and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone.’

In Al-Juffali, the Court of Appeal invoked Atkin’s dictum, explicitly accepting ‘the submission of the Secretary of State that the same considerations of law and policy apply in the present context’ (para 42). On this basis, the government may be tempted to argue that preceding case law on the centrality of notification ought to give way in the light of the principle that the executive and judiciary must speak with one voice on matters relating to foreign relations.

That argument doesn’t seem right. As the CA notes in Al-Juffali, the one voice principle is most commonly discussed in the context of state immunity – the sovereign must decide whom to recognise as a fellow sovereign. And, indeed, Atkin’s principle is realised in the State Immunity Act – as noted above, Section 21(a) renders conclusive the executive’s judgment of whether any country is a state. But that is quite different from holding that the general principle overturns the specific statutory scheme established in the context of diplomatic, rather than state, immunity.

Abuse of Rights

We should point out that if an English court were to determine that Assange’s status as a diplomat is ordinarily determined by notification by Ecuador, the argument suggested in Dapo’s previous post that that such a claim of diplomatic status might be defeated because of an abuse of rights relating to the conferral of Ecuadorian nationality would remain a possibility. However, Section 4, allowing certification of relevant facts by the Secretary of State might also be relevant this question. But here, too, the distinctions drawn above between questions of law and questions of fact remain important. First, whether the law (i.e international law as it applies in English law) allows rejection of a claim of nationality would be a question of law for the court to decide. Second, whether a given act or course of conduct constitutes an abuse of rights would presumably also be a question of law. Third, whether any facts are relevant for the determination of an abuse of rights would also be for the courts to decide. Only if the court decides that there is a fact relevant to this determination does one get to the question of a certificate. For example, if the court were to decide that the date on which Assange acquired Ecuadorian nationality was relevant to the inquiry, that would seem to be a matter on which a Section 4 certificate could be provided and would be determinative.

It remains to be seen how the Assange affair will play out. The English courts have already had the opportunity to pronounce on issues relating to his failure to surrender. Were he to leave the embassy, it is possible that they will be called upon to decide some interesting questions relating to diplomatic immunity in international law.