We Asked an Expert if India Can Sue the Queen of England Over a Diamond

It's never nice to be accused of taking something that's not yours—especially if you're the Queen of England and the object in question is one of the world's most famous, and valuable, diamonds. But today, news has come that India is calling for the return of the famous Koh-i-noor diamond, which is currently nestled in Her Maj's crown, as it has been since roughly 1852.

A number of prominent Bollywood stars and Indian businessmen have come together to instruct lawyers that they want the diamond back, prompting headlines in several media outlets such as "India sues the Queen for return of 'stolen' £100m [$150 million] diamond."

The Mountain of Light, as the group is calling itself (after the translation of the diamond's name), has alleged that the 105-carat stone was taken during "dubious circumstances" after Britain annexed Punjab in 1849. In order to try and get the diamond returned, the case will be based on the Holocaust (Return of Cultural Objects) Act, a bill which gives certain British institutions the power to return cultural objects that have been unlawfully acquired.

Speaking to the Independent, Satish Jakhu, of Birmingham-based law firm Rubric Lois King, said they would make their claim under the common law doctrine of "trespass to goods," arguing that the government had stolen the diamond.

But we hadn't heard of a country suing HRH before, and so to get a better idea if this case has any legs, we asked a UCL Professor of Public International Law, Roger O'Keefe, to explain further. Here's what he had to say:

"This case has a snowflake's chance in hell of getting anywhere, for a variety of reasons," says O'Keefe. "Note, however, that India is not proposing to sue the Queen. Some Indian citizens are, supposedly.

"By the sound of it, they are proposing to sue the Queen in the English courts, meaning that at least one insurmountable obstacle that would face such a suit in the Indian courts will not be present, namely the international legal doctrine of state immunity—also known, especially in the US, as foreign sovereign immunity—as applicable in the Indian courts. This is the principle that a state and its various organs (e.g. the head of state, the government, any of its ministries, etc.) may not be in a foreign court except in a narrow range of circumstances, of which this is not one.

"The first problem, however, facing the proposed such suit is that it is probably the case in the English courts that the Queen may not personally be sued. But be that as it may.

"The second, more intractable problem is that the Holocaust (Return of Cultural Objects) Act 2009 does not apply to the Queen. As section one of the Act makes perfectly clear to those who can read, it applies to a range of public museums and galleries in the UK. Nor does the Act apply to Jewel House, in the Tower of London, where the Crown jewels are kept.

"The third, equally intractable problem is that Act relates to objects taken 'during the Nazi era,' as section 3(2)(b) makes perfectly obvious.

"The final nail in the coffin is that the Holocaust (Return of Cultural Objects) Act 2009 is not an act under which it is possible to sue for the return of anything! The Act merely authorizes the above-mentioned public institutions to 'deaccession' an item from their collection for return to a victim of Nazi persecution in the event that something called the Spoliation Advisory Panel (which was set up to consider requests from victims of Nazi persecution and their families for the return of objects taken or constructively taken during the Nazi period that ended up in UK collections) recommends this and the relevant Secretary of State approves the recommendation.

As for making a claim under "trespass to goods," only the owner (or the person claiming to be the owner) can claim for trespass to goods, and none of the people suing was ever the owner of the Koh-i-noor diamond. Any such owner's title has been extinguished by failure to sue within the specified limitation period, which is six years. The Koh-i-noor diamond passed into the Queen's hands in 1850!

"In short, the supposedly proposed case is, in British parlance, bollocks."