Volterra Fietta lawyers Robert Volterra and Jehad Mustafa were commissioned to publish an article in The Times on diplomatic immunity. The article appeared on 26 October 2023.
The Times article, entitled “Diplomats have immunity for a reason”, examines the recent split decision in the UK Supreme Court case of Basfar v Wong. The case has raised eyebrows in foreign ministries around the world. The prevailing view is that the decision has placed the UK in the unenviable position of being an outlier in its interpretation and application of State and diplomatic immunity. This in turn raises personal risks for UK diplomats overseas and threatens to hamper UK diplomatic activities.
It is a fundamental rule of international law that diplomats posted overseas are granted immunity from most of the host State’s domestic laws. This is a mutual, reciprocal obligation of States under international law. This immunity extends to the personal household of the diplomat within the host State. Such diplomatic immunities provide the vital stability that diplomatic missions need in order to function without interference from the host State (including the host State’s courts). Only through narrowly defined exceptions can diplomats be subject to litigation in a domestic court of a host State (one of which relates to personal commercial activity undertaken by a diplomat).
In Basfar, the UK Supreme Court considered a claim made in relation to the conditions of employment of a diplomat’s domestic staff. The staff had been brought to the UK as part of the diplomat’s personal household. The court decided that the alleged employment conditions of one member of the domestic staff — which were legal in the state of origin —transformed this otherwise immune diplomatic activity into not-immune commercial activity. This novel and highly creative approach taken by the Court does not reflect international law and practice.
The article considers the practical implications of Basfar within the wider context of international relations, as well as UK domestic litigation. The article predicts that foreign diplomats situated in London will now face increasing risk of litigation before the UK courts and a narrowing of the traditional scope of their immunity in ways that they would not in other countries. Given that State and diplomatic immunity are reciprocal, the Basfar judgment may well cause other States to reconsider the scope of protections that they will give to UK diplomats and diplomatic activities overseas.
The article is available to read in The Times.