Part III

    Part III of the Act contains the provisions of this Act on which it seems that this claim turns, curiously enough under the heading, "Miscellaneous and Supplementary". By section 20(1), "Heads of State", it is provided that:

 "subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to (a) A sovereign or other head of State; (b) members of his family forming part of his household; and (c) his private servants, as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.  

. . . .

 (5) This section applies to the sovereign or other head of any State on which immunities and privileges are conferred by Part I of this Act and is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity".

    Again there is no mention of a former Head of State.

    The Diplomatic Privileges Act 1964, unlike the 1978 Act, provides in section 1 that the provisions of the Act, "with respect to the matters dealt with shall "have effect in substitution for any previous enactment or rule of law". By section 2, Articles of the Vienna Convention on Diplomatic Relations (1961) set out in the Schedule, "shall have the force of law in the United Kingdom."

    The Preamble to the Vienna Convention (which though not part of the Schedule may in my view be looked at in the interpretation of the articles so scheduled) refers to the fact that an International Convention on Diplomatic Privileges and Immunities would contribute to the development of friendly relations among nations "irrespective of the differing constitutional and social systems" and records that the purpose of such privileges and immunities is "not to benefit individuals, but to ensure the efficient performance of the functions of diplomatic missions as representing States." It confirmed, however, "that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention."

    It is clear that the provisions of the Convention were drafted with the Head and the members of a diplomatic staff of the mission of a sending State (whilst in the territory of the receiving State and carrying out diplomatic functions there) in mind and the specific functions of a diplomatic mission are set out in article 3 of the Convention. Some of the provisions of the Vienna Convention thus have little or no direct relevance to the Head of State: those which are relevant must be read "with the necessary modifications".

    The relevant provisions for present purposes are:-

    (i) Article 29:

 "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."

    (ii) By Article 31(1), a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State

    (iii) By Article 39:

 "1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.  2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist."

    It is also to be noted that in article 38, for diplomatic agents who are nationals of or resident in the receiving State, immunity is limited. Such immunity is only in respect of "official" acts performed in the exercise of his functions.

    Reading the provisions "with the necessary modifications" to fit the position of a Head of State, it seems to me that when references are made to a "diplomatic agent" one can in the first place substitute only the words "Head of State". The provisions made cover, prima facie, a Head of State whilst in office. The next question is how to relate the time limitation in article 39(1) to a Head of State. He does not, in order to take up his post as Head of State, "enter the territory of a receiving State", i.e. a country other than his own, in order to take up his functions or leave it when he finishes his term of office. He may, of course, as Head of State visit another State on an official visit and it is suggested that his immunity and privileges are limited to those visits. Such an interpretation would fit into a strictly literal reading of article 39. It seems to me, however, to be unreal and cannot have been intended. The principle functions of a Head of State are performed in his own country and it is in respect of the exercise of those functions that if he is to have immunity that immunity is most needed. I do not accept therefore that section 20 of the 1978 Act read with article 39(2) of the Vienna Convention is limited to visits abroad.

    Nor do I consider that the general context of this Convention indicates that it only grants immunity to acts done in a foreign state or in connection only with international diplomatic activities as normally understood. The necessary modification to "the moment he enters the territory of the receiving State on proceeding to take up his post" and to "the moment when he leaves the country" is to the time when he "becomes Head of State" to the time "when he ceases to be Head of State". It therefore covers acts done by him whilst in his own State and in post. Conversely there is nothing to indicate that this immunity is limited to acts done within the State of which the person concerned is Head.

    If these limitations on his immunity do not apply to a Head of State they should not apply to the position of a former Head of State, whom it is sought to sue for acts done during his period as Head of State. Another limitation has, however, been suggested. In respect of acts performed by a person in the exercise of his functions as head of a mission, it is said that it is only "immunity" which continues to subsist, whereas "privileges and immunities normally cease at the moment when he leaves the country [sc. when he finishes his term of office]." It is suggested that all the provisions of article 29 are privileges not immunities. Mr. Nicholls, Q.C. replies that even if being treated with respect and being protected from an attack on his person, freedom or dignity are privileges, the provision that a diplomatic agent [sc. Head of State] "shall not be liable to any form of arrest or detention" is an immunity. As a matter of ordinary language and as a matter of principle it seems to me that Mr. Nicholls is plainly right. In any event, by article 31 the diplomatic agent/Head of State has immunity from the criminal jurisdiction of the receiving State: that immunity would cover immunity from arrest as a first step in criminal proceedings. Immunity in article 39(2) in relation to former Heads of State in my view covers immunity from arrest, but so also does article 29.

    Where a diplomatic agent [Head of State] is in post, he enjoys these immunities and privileges as such--i.e. ratione personae just as in respect of civil proceedings he enjoys immunity from the jurisdiction of the Courts of the United Kingdom under section 14 of the 1978 Act because of his office.

    For one who ceases to occupy a post "with respect to acts performed by such a person in the exercise of his functions as a member of the mission [Head of State] immunity shall continue to subsist." This wording is in one respect different from the wording in article 38 in respect of a diplomat who is a national of the receiving State. In that case, he has immunity in respect of "official" acts performed in the exercise of his function, but as Mrs. Denza suggests, the two should be read in the same way [see Diplomatic Law, 2nd Edition, p. 363].

    The question then arises as to what can constitute acts (i.e. official acts) in the exercise of his functions as Head of State.

    It is said (in addition to the argument that functions mean only international functions which I reject):

    (i) that the functions of the Head of State must be defined by international law, they cannot be defined simply as a matter of national law or practice; and

    (ii) genocide, torture and the taking of hostages cannot be regarded as the functions of a Head of State within the meaning of international law when international law regards them as crimes against international law.

    As to (i), I do not consider that international law prescribes a list of those functions which are, and those which are not, functions for the purposes of article 32. The role of a Head of State varies very much from country to country, even as between Presidents in various States in Europe and the United States. International law recognises those functions which are attributed to him as Head of State by the law, or in fact, in the country of which he is Head as being functions for this purpose, subject to any general principle of customary international law or national law, which may prevent what is done from being regarded as a function.

    As to (ii), clearly international law does not recognise that it is one of the specific functions of a Head of State to commit torture or genocide. But the fact that in carrying out other functions, a Head of State commits an illegal act does not mean that he is no longer to be regarded as carrying out one of his functions. If it did, the immunity in respect of criminal acts would be deprived of much of its content. I do not think it right to draw a distinction for this purpose between acts whose criminality and moral obliquity is more or less great. I accept the approach of Sir Arthur Watts, Q.C. in his Hague Lectures at pp. 56-57:

 "A Head of State clearly can commit a crime in his personal capacity; but it seems equally clear that he can, in the course of his public functions as Head of State, engage in conduct which may be tainted by criminality or other forms of wrongdoing. The critical test would seem to be whether the conduct was engaged in under colour of or in ostensible exercise of the Head of State's public authority90. If it was, it must be treated as official conduct, and so not a matter subject to the jurisdiction of other States whether or not it was wrongful or illegal under the law of his own State.91"

    In the present case it is accepted in the international warrant of arrest that in relation to the repression alleged "the plans and instructions established beforehand from the Government enabled these actions to be carried out". "In this sense [the] Commander in Chief of the Armed Forces and Head of the Chilean Government at the time committed punishable acts . . . "

    I therefore conclude that in the present case the acts relied on were done as part of the carrying out of his functions when he was Head of State.

    The next question is, therefore, whether this immunity in respect of functions is cut down as a matter of the interpretation of the Vienna Convention and the Act. The provisions of the Act "fall to be considered against the background of those principles of public international law as are generally recognised by the family of nations" (Alcom Ltd. v. Republic of Colombia [1984] A.C. 580, 597 per Lord Diplock). So also as I see it must the Convention be interpreted.

    The original concept of the immunity of a Head of State in customary international law in part arose from the fact that he or she was a Monarch who by reason of personal dignity and respect ought not to be impleaded in a foreign State: it was linked no less to the idea that the Head of State was, or represented, the State and that to sue him was tantamount to suing an independent State extra-territorially, something which the comity of nations did not allow. Moreover, although the concepts of State immunity and Sovereign immunity have different origins, it seems to me that the latter is an attribute of the former and that both are essentially based on the principles of Sovereign independence and dignity, see for example, Suchariktul in his report to the International Law Commission (1980) Vol. II Doc. A (LN 4--331 and Add.J.) Marshall C.J. in the Schooner Exchange v. M'Faddon (1812) 11 US (7 Cranch) 116.

    In the Duke of Brunswick v. The King of Hanover (1848) 2 H.L. Cas. 1 the Duke claimed that the King of Hanover had been involved in the removal of the Duke from his position as reigning Duke and in the maladministration of his estates. The Lord Chancellor said:

 "A foreign Sovereign, coming into this country cannot be made responsible here for an act done in his Sovereign character in his own country; whether it be an act right or wrong, whether according to the constitution of that country or not, the Courts of this country cannot sit in judgment upon an act of a Sovereign, effected by virtue of his Sovereign authority abroad, an act not done as a British subject, but supposed to be done in the exercise of his authority vested in him as Sovereign."

He further said:

 "If it be a matter of sovereign authority, we cannot try that fact, whether it be right or wrong. The allegation that it is contrary to the laws of Hanover, taken in conjunction with the allegation of the authority under which the defendant had acted, must be conceded to be an allegation, not that it was contrary to the existing laws as regulating the right of individuals, but that it was contrary to the laws and duties and rights and powers of a Sovereign exercising Sovereign authority. If that be so, it does not require another observation to shew, because it has not been doubted, that no Court in this country can entertain questions to bring Sovereigns to account for their acts done in their sovereign capacities abroad."

    This case has been cited since both in judicial decisions and in the writing of jurists and in Buttes Gas and Oil Co. v. Hammer [1982] A.C. 888 was said by Lord Wilberforce to be "a case in this House which is still authoritative and which has influenced the law both here and overseas" (p. 932). In Hatch v. Baez (1876) 7 Hun. 596, the plaintiff claimed that he had suffered injuries in the Dominican Republic as a result of acts done by the defendant in his official capacity of President of that Republic. The Court accepted that because the defendant was in New York, he was within the territorial jurisdiction of the State. The Court said, however:

 "But the immunity of individuals from suits brought in foreign tribunals for acts done within their own States, in the exercise of the sovereignty thereof, it is essential to preserve the peace and harmony of nations, and has the sanction of the most approved writers on international law. It is also recognised in all the judicial decisions on the subject that have come to my knowledge . . .

 "The fact that the defendant has ceased to be president of St. Domingo does not destroy his immunity. That springs from the capacity in which the acts were done, and protects the individual who did them, because they emanated from a foreign and friendly government."