Al M (Assurances And Waiver), Re

A unilateral assurance by a sovereign state may be legally binding in international law if it clearly expresses an intention to be bound. Its reliability and practical value must nevertheless be assessed in all the circumstances. Relevant considerations include the assurance’s clarity, the authority of its maker, the receiving state’s likely response to breach, and the availability of monitoring or enforcement mechanisms.

A waiver of immunity given only by a parent does not protect children against abduction by agents acting on the parent’s behalf. Assurances and waivers may therefore have legal significance while providing no present protective weight in the welfare assessment.

This was a further judgment in private-law proceedings concerning arrangements for two children. The father, the Ruler of Dubai and a senior UAE office-holder, relied on assurances given by him, the UAE and the Emirate of Dubai, together with a personal waiver of immunity.

The mother disputed the reliability and practical value of those documents. The central issues were whether the assurances were legally binding, what weight could properly be placed upon them, and whether the waiver protected the children against the risk of abduction by persons acting for the father.

1. Assurances. A clear unilateral declaration by a state, intended to be legally binding, may create binding obligations under international law without negotiation, acceptance, a quid pro quo or compliance with a prescribed form. Withdrawal may occur prospectively, but does not affect the binding nature of the assurance concerning antecedent acts. The assurances in this case were therefore legally binding in principle: [1975] ICJ Reports 253.
2. The court must assess the reliability and practical value of state assurances by reference to all the circumstances. The checklists in Othman v The United Kingdom (2012) 55 EHRR 1 and the criteria discussed in RB (Algeria) (FC) v SSHD [2009] UKHL 10 and Lodhi v Secretary of State for the Home Department [2010] EWHC 567 (Admin) were not prescriptive and were not inconsistent.
3. Although the assurances were clear, specific and given by persons able to bind the UAE and Dubai, there was no sound objective basis for confidence that they would be fulfilled. There was no effective mechanism for monitoring or enforcing them, no evidence of the UK Government’s likely response to a breach, and the informal method of transmission generated further doubt. The court could therefore place no present weight upon the assurances as protection against abduction.
4. The father’s waiver was significant for possible enforcement against his UK property after a breach. It was, however, confined to the father personally. It did not cover employees or agents who might attempt an abduction and claim diplomatic immunity. It was consequently irrelevant to the primary protective risk.
5. The proceedings remained ongoing. It was open to the father to provide evidence of the UK Government’s likely response to breach and a comprehensive waiver covering relevant employees or agents. The analysis would then be reconsidered within the final welfare evaluation.

This was a further judgment in ongoing High Court family proceedings. The judgment refers to an earlier fact-finding judgment handed down on 11 December 2019; no appeal is described.