Skip to main content

Council of Europe: State Immunity

Volume 689: debated on Tuesday 20 February 2007

asked Her Majesty’s Government:

What assessment they have made of the Secretary-General of the Council of Europe’s recommendation to adopt a Council of Europe legal instrument on state immunity and serious human rights violations.

My Lords, we have carefully considered the recommendations made by the secretary-general in the context of his inquiry into extraordinary renditions. However, as stated in the other place on 23 November, the Government believe that domestic legislation and international legal instruments already exist to deal satisfactorily with the concerns that he has raised. The UN Convention on Jurisdictional Immunities of States and their Property was concluded in 2004, after a period of prolonged negotiation. We see no advantage in reopening this issue in a Council of Europe forum.

My Lords, I thank the Minister for her reply. I recognise that this is a complex and sensitive area of law, in that it deals with diplomatic relations between countries. Nevertheless, does the Minister agree that, for several years now, serious human rights crimes have no longer been considered the internal affair of a given country but concern the international community as a whole? Would not, therefore, a review of the rules on immunity, under the aegis of the Council of Europe, be a good thing?

My Lords, the noble Baroness is absolutely right: these are matters of international concern. For that reason we believe that they are best discussed within the forum of the UN. They were last discussed in the UN in 2004, when there was absolutely no consensus on these issues.

My Lords, can my noble friend confirm that the doctrine of state immunity arose from the concept of state sovereignty and that its purpose was to facilitate diplomacy and conflict resolution and so to protect people? Does she accept that it ought not to be used to prevent people from being protected? Does she agree with Kofi Annan that no legal principle, not even sovereignty, should be permitted to shield crimes against humanity?

My Lords, indeed, prevention is absolutely key in these matters, and no law should be used to shield people who have committed atrocities. We hope that perpetrators of serious human rights violations will be tried by courts that have jurisdiction over them, but not every court has jurisdiction over wrongdoing in every part of the world.

My Lords, is the Minister aware that her answers will bring dismay across the Council of Europe? In her Answer, she suggests that the United Nations is the right place to deal with this matter rather than the Council of Europe. Is it not the case that this country is bound by the European Convention on Human Rights, that it is a member of the Council of Europe and that the Secretary-General of the Council of Europe has identified a pressing problem, which is that the exceptions for human rights to state immunity are not sufficiently clear because they do not go beyond torture and deal, for example, with what is euphemistically called enforced disappearance? Would she ask her colleagues to reconsider their position, to support the Secretary-General of the Council of Europe and to ensure that we have a British representative on the ad hoc committee with a view to producing a proper international instrument on that?

My Lords, I well understand the disappointment of the Council of Europe on these issues. As I understand it, the ad hoc committee does not as yet exist, one reason being that no member state has put forward any names. I believe that support for the secretary-general’s report is very slim among member states, so the UK is not alone in its attitude towards these issues and in its feeling they are best discussed and agreed in the United Nations, which now has a responsibility to protect.

My Lords, does my noble friend accept that whereas what she says about support being very slim among the member states in the Council of Europe might be correct, that is not the case among members of the Parliamentary Assembly of the Council of Europe, where parliamentarians from right across the European continent meet and overwhelmingly support the view expressed by Mr Terry Davis, the secretary-general?

My Lords, I fully acknowledge that the views of the Parliamentary Assembly of the Council of Europe are solid on this matter. However, it is the member states of the Council of Europe that have decision-making powers.

My Lords, does the Minister agree that to pass this to the United Nations is a total waste of time, when it has been able to do nothing about Burma, nothing about Zimbabwe and extremely little about Darfur?

No, my Lords. Perhaps the United Nations has not been doing enough—the UK Government are pressing it to move much further than it has in Darfur—but resolutions have been passed, discussions are taking place in the Security Council and there is action in Darfur thanks to the UN’s actions.

My Lords, does the Minister agree that, while getting improvement in the laws from the United Nations must be the ultimate objective, an agreement in the Council of Europe would increase pressure on the United Nations to accept laws that reduce immunity?

That may well be the case, my Lords, but agreement has to be sought and found within the Council of Europe, and we are a long way from that yet.

My Lords, can we make it clear that the principles underlying the Council of Europe’s report are ones that we sign up to? The problem as I understand it is that the ad hoc committee is made up of 46 members, if it is set up, and it is split into three sub-committees: on state immunity, air transport and the secret services of existing members. That is a very convoluted way of reaching agreement on something that we are already negotiating or have agreed in the UN convention and some of the other conventions—and, indeed, in our own domestic law. We must emphasise that the principles are right but that it is important to pay some attention to the efficiency of going about reaching agreement.

Yes, my Lords. I am sure that the principles are absolutely correct but I must restate the Government’s belief that domestic legislation and international legal instruments already exist to deal satisfactorily with the concerns raised.