Notes of Cases

Published date01 September 1964
DOIhttp://doi.org/10.1111/j.1468-2230.1964.tb02244.x
Date01 September 1964
NOTES
OF
CASES
A
LITTLE LIST
Zoernsch
v.
Waldock and Another
1
is essentially a straightforward
case on diplomatic immunity, which perhaps owes its journey to the
Court of Appeal to the circumstance that the appellant plaintiff
("
Z
yy)
chose to conduct his case in person. Only Willmer
L.J.
in the Court of Appeal made heavy weather of the principles
involved.
Neither the first
nor
the second defendant was a diplomat in
the standard sense of that word, that is an envoy sent by one state
to another for the purposes of political negotiation
or
ceremony.
But, as in the case of the traditional diplomat, their status before a
municipal court depended entirely upon the extent to which the law
of that forum recognised their peculiar role.
By the International Organisations (Immunities and Privileges)
Act, 1950, a consolidating Act
("
the Act
,,),
power was given
to
the Crown to confer by Orders in Council diplomatic privileges and
immunities upon international organisations, their officers and
members of their organs. But this power is restricted by section
1
of the Act to the case of organisations declared by Order in Council
to be an organisation of which the United Kingdom
or
His Majesty's
Government is a member. The question before Master Jacob,
Thompson
J.
and the Court of Appeal was whether
or
not, in view
of this, the immunity afforded to the first defendant
("
W
yy)
and
the second defendant
("
M
yy
)
w as
ultra
vires
the Act.
To understand how the point arose in this case,
it
is necessary to
state also that
Z
was kin to that potentially most tedious of litigants
in person, the loser who sues his judges. In fairness to
Z,
his
argument was described by Willmer
L.J.
as
'(
ingenious and good-
tempered." With
a
grievance against the courts of the Federal
Republic of Germany,
Z
petitioned the European Commission of
Human Rights
("
the Commission
"),
which rejected the petition.
Z
then claimed damages against
W
and
M
who at all material times
had been President and Secretary to the Commission respectively.
He alleged
''
negligence and corruption
in
running the business
of the Commission of Human Rights of the Council
of
Europe in
Strasbourg." The defendants each claimed immmity from legal
process.
By
Article
1
of the Council of Europe (Immunities and
Privileges) Order 1960
(('
the Order
"),
the Council of Europe was
declared to be an organisation within section
1
of the Act. But
W
[1964]
1
W.L.R.
675; 119641 2All
E.R.
256 (C.A.).
581
582
THE
MODERN
LAW
REVIEW
lvo~.
27
and
M
were not officers of the Council, but of the Commission. Their
status would be secure, however,
if
the Commission could be shown
to be an organ of the Council, since the Crown is empowered by
section
1
(2)
(b)
(i)
of
the Act to confer immunities upon
any
persons who are representatives (whether of Governments
or
not)
on any organ of the organisation.
. . .”
Willmer
L.J.
said that
it
was a question of fact whether the
Commission was an organ of the Council. That seems quite right,
for international law must be a question of fact before an English
court.
In
the present case, the problem of construction was purely
one of municipal law,
i.e.,
the construction of the word
organ
’’
in a statute
of
the United Kingdom. That in itself is a matter of
law, but one which can only be settled by looking at the facts, to
see whether what is alleged to be an organ comes within the scope
of the language of the Act. The facts, and there
is
nothing in this
for students
of
jurisprudence to get excited about, happened to be
the texts of international conventions, lending to the judgments an
undeservedly exotic air. Dancknerts
L.J.
had
no doubt
on
this score, while Diplock
L.J.
was also
clearly
of
the opinion
that the Commission was an organ
of
the Council.
At the date of the issue of the writ, however, W had ceased to
hold office with the Commission, and
so
Z
argued that whatever the
immunity W might have possessed while President, he could
no
longer claim that. To this contention there was a short and a
long answer. Shortly, the Secretary
of
State by section
2
(1)
of the
Act
is
under a duty to compile a list of persons entitled to immunity
under section
1
(2).
By section
2
(2)
the fact that any person is
or
was included
or
not included at any time among the persons
entitled to the immunity
.
. .
in question
.
. .
may be conclusively
proved
by producing the list. W was listed,
M
was not
on
the
list but was proved
aliunde
to be an officer of the Commission.
Willmer
L.J.
did not find the list an attractive ground, if
standing alone, for refusing jurisdiction. Danckwerts
L.J.
observed
that its protection might be frail and precarious. Diplock
L.J.
made the point that
it
is the statutory duty of the Secretary
of
State under section
2
(1)
(c)
to amend the list when any person
ceases to be entitled to the immunities and privileges to which the
list relates.” He could, in the view
of
Diplock
L.J.,
be compelled
to perform this duty, and the list accordingly might not be finally
determinative of these matters. Perhaps force is added
to
this
argument by the wording
of
section
2
(2)
which talks of
the fact
that any person is
or
was included at any time among the persons
entitled to the immunities and privileges
in question.”
The last
two words quoted must refer back to section
2
(1)
of the Act:
‘6
Where immunities and privileges are conferred
.
.
.
by an order
in
council made under
section
1
(2).
But
for
such an
order
in
council to be
intra vires,
more than the list is required, of course.
The list is perhaps only a starting point, therefore, which may
do
Sem.
1964
NOTES
OF
CASES
588
something to redress the balance between judiciary and executive
in this field (though such a conclusion is also a reason for advising
the suggested construction only with caution).
Anyway, said the Court of Appeal, there were other reasons for
upholding the decision of Thompson
J.
The greatest number were
found by Willmer L.J. though
if
he viewed them as independent
grounds for immunity
it
is submitted that the learned Lord Justice
was in error.
(i) that the immunity claimed was
no
greater than that
authorised by the proviso
to
section
1
(2)
of the Act, which section
limited the power
of
the Crown to confer immunities to the extent
required to conform to relevant international agreements. This,
with respect, seems to cut down powers, not to confer them-indeed,
the proviso uses the term
‘‘
the
order in council.
Danckwerts L.J. by inference dealt with the proviso when he
refused to express an opinion
on
whether the relevant legislation
should be read together with international conventions and agree-
ments binding upon the United Kingdom, in order to ascertain the
intention of Parliament
(i.e.,
to fulfil our obligations).
(ii) Willmer L.J. cited Article
12
(1)
(a)
of the Order for the
proposition that immunity attaches to
‘‘
words spoken
or
written
and all acts done by [the member of the Commission] in their
official capacity.” He stated that immunity was thereby dependent
on
the character of the occasion
on
which the words
or
acts occurred,
and not upon the time when proceedings were begun.
This is not entirely true, for the relevant article continues by
stipulating in respect of such words
or
acts
‘‘
the like immunity
from legal process as is accorded to an envoy of a foreign sovereign
power.” That, which is apparently the third ground found by
Willmer L.J. for immunity, is in fact simply a necessary part of his
ground (ii), which does not stand alone. This is backed up by (iv)
the common law distinction between acts of an envoy done in his
private and his official capacity. But that cannot be a separate
ground, for
it
merely defines the quantum of immunity, conferred
by the Order.
Both Danckwerts and Diplock L.JJ. state quite simply the
‘‘
like immunity
to be the common law immunity of an envoy.
The .Order works, therefore, by incorporating the detail of the
common law into its own simple language at that point. The
authority of
Rahimtoola
v.
H.E.H. The Nizam
of
Hyderabad
was
lent to the Lord Justice’s interpretation of such immunity:
to
sue an envoy
in
respect of acts done in his official capacity would
be, in effect, to sue his government irrespective of whether the
envoy had ceased to be
en poste
at the date of the suit
(per
Diplock L.J.).
Briefly his reasons were:
2
[1958]
A.C.
379.

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