Ministry of Justice
State of Israel
Office of National
Anti-Trafficking Coordinator
June 2012
Diplomatic and State Immunities and the Battle Against Trafficking in Persons
A. Introduction
Recently, a Senegalese woman alleged that she was working under conditions of
slavery and facing abuse in the household of a foreign diplomat in Israel. Her allegations
were primarily against the wife of the diplomat, though underlying them was also
criticism of the diplomat. The case raises the question of what legal steps can be taken in
cases like this in order to mitigate the effects of diplomatic and state immunity in creating
an environment friendly to trafficking in persons.
German human trafficking experts Angelika Kartusch and Heike Rabe argue that
diplomatic immunity can frustrate the battle against trafficking in persons. In a report on
domestic workers in foreign diplomats’ households, they state:
Rights violations experienced by migrant domestic workers in
diplomats’ households may seem, at first glance, to be a side issue
only of the broader discourse on human trafficking and
exploitation of labor migrants. Upon further inspection, however,
its relevance as a human rights issue becomes clear in two
respects: First, even if the number of victims constitutes only a
small portion of labor exploitation and forced labor worldwide,
labor rights violations and exploitation in diplomats’ households
are a global phenomenon rooted in structural shortcomings in
the protection of diplomats’ domestic workers, both in sending
states and in host states. Second, the employers’ diplomatic
immunity aggravates rights violations and restrictions of freedom
1
experienced by domestic workers as it severely limits, if not
entirely bars, victims’ access to justice.1
This memorandum describes the scope of both diplomatic and state immunity in
order to understand how diplomatic and state immunity may frustrate the battle against
trafficking in persons. It concludes by suggesting legal avenues victims such as the
Senegalese woman might pursue.
Diplomatic immunity protects individual diplomats from being subject to the
jurisdiction of foreign courts, whereas state immunity means that “the courts of one state
may not exercise jurisdiction over another state without its consent.”2 In other words,
diplomatic immunity protects individuals while state immunity protects countries from
being subject to the jurisdiction of the courts of foreign nations.
B. Diplomatic Immunity
The essence of diplomatic immunity is that "a diplomatic agent shall enjoy
immunity from the criminal, civil and administrative jurisdiction of the receiving State,”
except in certain types of cases (discussed below).3 This definition is codified in the
1961 Vienna Convention on Diplomatic Relations (VDCR).
Diplomatic immunity is intended to permit diplomatic agents to conduct their
duties without the threat of influence by the host government posed by exposure to
1
Angelika Kartusch and Heike Rabe, Domestic Workers in Diplomats’ Households:
Rights Violations and Access to Justice in the Context of Diplomatic Immunity. Analysis
of Practice in Six European Countries, German Institute for Human Rights, June 2011,
Preface, 5-6.
2
Michael Akehurst, A Modern Introduction to International Law, 6th ed., London:
Routledge, 1992, 1993), 111.
3
“Vienna Convention on Diplomatic Relations,” Article 31(1). Done at Vienna on 18
April 1961. Entered into force on 24 April 1964. United Nations, Treaty Series, vol.
500, p. 95.
2
liability and prosecution.4 Relations between nations are predicated on the notion that
nations should not abuse foreign diplomats.5 The 1977 United Nations Convention on
the Prevention and Punishment of Crimes against Internationally Protected Persons holds
that the protection of diplomatic personnel is necessary to maintain international peace
and friendly relations and cooperation among nations (a principle at the core of the
Charter of the United Nations).
Diplomat agents (the head and members of a state mission) and their families are
entitled to diplomatic immunity under the United Nations Conventions.6 Staff members
of international organizations, such as the United Nations and the European Union (EU),
also enjoy diplomatic immunity under “Headquarters Agreement[s] between the host
country and the international organization.”7 The 2004 EU Protocol on the Privileges and
Immunities of the European Union also stipulates immunities for EU staff members.8
4
“Vienna Convention on Diplomatic Relations,” Articles 29-31, United Nations, 2005.
Done at Vienna on 18 April 1961. Entered into force on 24 April 1964. United Nations,
Treaty Series, vol. 500, p. 95.
5
Louis Henkin, How Nations Behave: Law and Foreign Policy (Council of Foreign
Relations, 1979), 14, 16.
6
“Vienna Convention on Diplomatic Relations,” Article 1(a); Ian Brownlie, Principles of
Public International Law, 5th ed., (Oxford: Oxford University Press, 1998), 352; Henkin,
195; “Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, 1035 U.N.T.S. 167, 13 I.L.M. 41, entered into force 20 February,
1977, available at the University of Minnesota Human Rights Library, available at
http://www1.umn.edu/humanrts/instree/inprotectedpersons.html.
7
“Diplomatic Privileges and Domestic Work,” Unprotected Work, Invisible Exploitation:
Trafficking for the Purpose of Domestic Servitude, Occasional Paper No. 4, Organization
for Security and Co-operation in Europe, 25.
8
Protocol on the Privileges and Immunities of the European Union, available at
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2004:310:0261:0266:EN:PDF.
3
There are certain exceptions to the immunities diplomatic agents, their families,
and international organizations’ staff members enjoy. The exceptions permit:
A real action relating to the immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of
the mission; An action relating to succession in which the diplomatic agent is
involved as executor, administrator, heir or legatee as a private person and not on
behalf of the sending State; An action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving State outside his official
functions.9
The “commercial activity” exception is the key exception for the case before us.
Central to our case is the question of what differentiates an official
diplomatic/state function from a private commercial function for the purpose of
diplomatic immunity. Resolving this question requires understanding how courts have
interpreted the “commercial activity” exception.
Courts could conceivably read
“commercial activity” to cover “contractual relationships for goods and services
incidental to the daily life of the diplomat and family in the receiving State” by finding
that such household relations constitute “the pursuit of trade or business activity” separate
from a diplomatic activity.10 But United States courts have interpreted the exception
narrowly to not encompass diplomats’ contracts with and employment of domestic
workers. This has been the holding of most courts worldwide.11
U.S. courts as well as the U.S. State Department reason that U.N. debates about
and explanations of the exception support a narrow interpretation. The amendment
9
Vienna Convention on Diplomatic Relations, Article 31(1).
10
Tabion v. Mufti, 73 F.3d 535, 538-39 (U.S. 4th Cir. 1996).
11
Usama Kahf, “Development in the Debate over Diplomatic Immunity for Diplomats
Who Enslave Domestic Workers,” Loyola Law School, Los Angeles, First Annual
Interdisciplinary Conference on Human Trafficking, 2009, 15-16; Kartusch and Rabe, 16.
4
creating the “commercial activity” exception was introduced in 1957, according to one
U.S. court of appeals, and was not “intended to address ordinary contractual relationships
for goods and services incidental to daily life.”12
Records of the United Nations
International Law Commission (ILC), which was charged with drafting the Convention,
reveal that the Special Rapporteur of the U.N. “viewed the commercial activity exception
as focusing on the pursuit of private trade or business activity.”13 The ILC’s commentary
“shows that the term ‘commercial activity’ did not encompass the usual procurement of
goods and services needed in a diplomat’s daily life, but rather focused on activities that
were normally inconsistent with a diplomat’s position.”14
U.S. courts have thus interpreted the exception narrowly in light of U.N. debates
over it. U.S. courts interpret the “’commercial activity’ exception to include activities
that relate “only to trade or business activity engaged in for personal profit.”15 This
exception does not include ‘occasional service contracts’ that are ‘incidental to the daily
life of the diplomat.’”16
U.S. courts have dismissed cases involving allegations of minimum wage law
violations (most significantly, of the national Fair Labor Standards Act), human rights
violations, false imprisonment, and intentional infliction of mental distress using a
12
Tabion v. Mufti.
13
Ibid.
14
Ibid.
15
Ibid.
16
Kahf, 15-16; Tabion v. Mufti.
5
narrow interpretation of the “commercial activity” exception.17
For example, the U.S.
Court of Appeals for the Fourth Circuit in Tabion v. Mufti in 1996 used this narrow
interpretation to dismiss on diplomatic immunity grounds a complaint filed by a domestic
worker from the Philippines against a Jordanian diplomat working in Washington, D.C.
at the time. The worker, Corazon Tabion, sued the diplomat, Faris Mufti, for “false
imprisonment and fair labor violations,” inter alia. The court concluded that employment
of domestic workers is not a commercial activity. U.S. courts have thus uniformly
dismissed lawsuits filed by domestic workers against their diplomat employers on
immunity grounds.18
Despite this narrow judicial and administrative construction of the exception,
some lawyers continue to argue that diplomats should be held responsible for abuse of
domestic workers. American lawyer Amy Tai argues that government bodies, such as the
U.S. State Department, should request waivers of immunity from sending states and
courts should “apply an alternative interpretation of the VDCR commercial activity
exception to protect the rights of domestic workers and ensure that diplomats are not
abusing their privileges.”19 Tai explains that, regardless of the immunity, the U.S.
State Department’s Foreign Affairs Manual (FAM) provides for the Department to
request waivers of immunity from the diplomat’s government for criminal charges
17
Tabion v. Mufti; Araceli Dotarot Montuya v. Antoine Chedid and Afife Nicole Chedid,
Civil Action No. 10-695, Filed 04/26/11; Gonzalez Paredes v. Vila, 479 F. Supp. 2d 187,
191 (D.D.C. 2007); Sabbithi v. Al Saleh, 605 F. Supp. 2d 122, 130 (D.D.C. 2009).
18
Tabion v. Mufti.
19
Amy Tai, “Unlocking the Doors to Justice: Protecting the Rights and Remedies of
Domestic Workers in the Face of Diplomatic Immunity,” 16 Am. U.J. Gender Soc. Pol’y
& L. 175, 2007, 1.
6
filed against the foreign diplomat, which allows U.S. courts to investigate and
prosecute the cases. The FAM also makes clear that diplomatic immunity does not
permit diplomats to deny workers fair wages. Putting these two together, Tai
argues that waivers could be sought for actions seeking relief for domestic workers.
Tai also argues that U.S. courts should interpret the commercial exception to the
VDCR broadly to include “the employment of domestic workers” for a number of
reasons. First, courts have not granted consular officials immunity for employment
contract claims under the Vienna Convention on Consular Relations and the diplomatdomestic worker relationship does not differ significantly from that of consular officialdomestic worker.20
Second, the employment of domestic workers in diplomatic
households is a commercial activity – an activity a diplomat pursues for “personal profit”
(as defined by the Vienna Convention on Diplomatic Relations, Article 42) because
diplomats, at least as alleged in Tabion v. Mufti, pay workers below the legally mandated
amounts. Also, the employment contract personally benefits “the employer and not the
sending state.” Third, workers in the multi-billion dollar domestic service industry who
obtain thousands of A-3 and G-5 visas each year are not engaged in casual labor but
rather commercial activity. Fourth, “it is clear that diplomats hiring domestic employees
to assist in domestic work is commercial in nature because private actors can also engage
in this type of contractual relationship.” Further, “not only is hiring a domestic worker an
20
Ibid., 24, See Park v. Shin, 313 F. 3d 1138, 1145-46 (9th Cir 2002). The Ninth Circuit
court held that “the consular officer hired the domestic worker as a personal employee, so
he is not protected by any immunity privileges of the VCCR). It is helpful to compare
Park v. Shin to Tabion v. Mufti in which the Fourth Circuit court held that “a diplomat’s
employment of a domestic worker is ‘incidental to daily life’ and part of diplomatic
functions, such that the diplomat, under the VDCR, is immune from suit by the domestic
employee in U.S. federal courts.”
7
action in which any private individual can engage, but a personal domestic employee
mainly assists with the personal needs of the diplomat and his family within the confines
of their home . . . Moreover, hiring someone to cook, clean, and take care of children is ‘a
regular course of commercial conduct.’”21
Thus, despite the narrow construction of the commercial activity exception to
diplomatic immunity, persuasive arguments can be made that diplomats should be held
responsible for abuse of domestic workers.
C. State Immunity
In contrast to diplomatic immunity, state immunity protects one sovereign state
from being subject to the jurisdiction of the courts of another state. State immunity was
well defined at common law. The purpose of state immunity is “to encourage the
functioning of the government by protecting the State from the burden of defending
litigation abroad.”22
Prior to the 1950s, an “absolute” theory of state immunity prevailed – states had
“total immunity on the condition that they did not have a separate personality from their
governments,” according to American lawyer J.D. Foukona.23 But since the 1950s, there
has been a tendency under the common law as it developed in various countries, for
courts to use a “relative immunity” standard. British expert in international law Michael
Akehurst explains that now most common law states “apply a rule of qualified [or
relative] immunity – that is they grant immunity to foreign states only in respect of their
21
Tai, 5-9.
22
J.D. Foukona, “State Immunity: ‘A Vanuata Perspective,’” Journal of South Pacific
Law, Working Paper 1 of Volume 5, 2001, 4-5.
23
Ibid.
8
government acts, not in respect of their commercial acts.”24
Most countries “have
adopted this standard because ‘[I]n practice it has the advantage of providing a remedy
for aggrieved individuals while at the same time encouraging growth of trade and
commerce.”25
Israel’s 2008 Foreign States Immunity Law recognizes “relative immunity.”
Section 2 of the law states that “the foreign state will have immunity from jurisdiction of
the Israeli courts, excluding criminal matters . . .” As in other common law nations, the
immunity states enjoy in Israel does not preclude “cases concerning cause of claim which
is commercial in nature, or dealing with employment law, trusts, insolvency, intellectual
property, torts committed in Israel, marine vessels and inheritance law.”26 But, as
Akehurst explains, the difference between governmental and commercial acts is not
always clear.27
The distinction between public (governmental) and commercial acts is different
for state and diplomatic immunity.
Particularly important to our case is that the
“commercial activity” exception to state immunity is broader than in the context of
diplomatic immunity.
Unlike the “commercial activity” exception to diplomatic
immunity, which was “not intended to cover commercial contracts incidental to the
24
Akehurst, 111-113; Sevrine Knuchel, “State Immunity and the Promise of Jus
Cogens,” Northwestern University Journal of International Human Rights, 9 Nw. U. J.
Int’l Hum. Rts. 149, 2.
25
Foukona, “State Immunity: ‘A Vanuata Perspective,’” Journal of South Pacific Law,
Working Paper 1 of Volume 5, 2001.
26
Elad Man and Zvika Barak, “Limited Immunity,” Articles and Opinions, 28.02.2011,
Israel Bar Association, available at
http://www.israelbar.org.il/english_inner.asp?pgId=110003&catId=246.
27
Akehurst, 111-113.
9
ordinary conduct” of the diplomat’s life, the exception to state immunity “applies to any
contract that involves a commercial transaction,” and expressly includes cases involving
employment laws.28
It is easier to prove that an action is commercial and thus subject to prosecution
not barred by state immunity because national laws have defined the “commercial
exception” to state immunity broadly and courts have interpreted it more broadly than the
exception to diplomatic immunity.
29
For our case, it is particularly important that the
2008 Israeli Foreign States Immunity Law defines commercial transactions to include
employment contracts. It is also central that the Israeli law states that foreign states do
not have immunity from “an action in tort.”30
D. Diplomatic and State Immunities and Human Rights Law
Recently, increasing concern about the international protection of human rights
has posed a challenge to diplomatic and state immunities. Lawyers have begun to argue
that the notion of jus cogens – “a peremptory norm of international law” – might limit
diplomatic and state immunities.31
The notion of jus cogens – “a norm from which states are not allowed to depart
under any circumstances” – is deeply ingrained in international law. Jus cogens was
28
Tabion v. Mufti footnote 7; Robert Jennings and Arthur Watts, Oppenheim’s
International Law, vol. 1, (9th ed. 1992), 1092-903
29
Elad Man and Zvika Barak, “Limited Immunity;” Gary Jay Greener, “The Commercial
Exception to Foreign Sovereign Immunity: To Be Immune or Not to Be Immune? That Is
the Question—A Look at the International Law Commission's Draft Articles on
Jurisdictional Immunities of States and Their Property,” 15 Loy. L.A. Int'l& Comp. L.
Rev. 173 (1992), 182: See Tai, 8.
30
Ibid.
Lee M. Caplan, State Immunity, Human Rights and Jus Cogens: A Critique of the
Normative Hierarchy Theory, 97 AM. J. INT’L L. 741, 772 (2003).
31
10
systematized in the Vienna Convention on the Law of Treaties. 32 States have recognized
many dictates of international law as jus cogens, such as the prohibition of torture, piracy,
genocide, and slavery. The case before us concerns an allegation of slavery so the notion
that prohibition of slavery is jus cogens is important.33
There are only a few cases in which the courts have used jus cogens norms to
limit diplomatic and state immunities. Still, it can be argued that jus cogens doctrine is a
promising means of limiting immunity.34 The use of jus cogens to protect human rights
is an emerging phenomenon in legal opinions that might permit both diplomats and
sovereign states to be held accountable for human rights violations and thus ameliorate
the problem of trafficking in persons posed by these immunities.35
According to a student of international law, Servine Knuchel, the “individual’s
position under international law has evolved considerably in the past several decades.
The law has recognized individuals as persons entitled to a number of fundamental rights
and remedies for violation of those rights.”
These protections have the character,
Knuchel argues, of jus cogens. Kartusch and Rabe's report36 is helpful for the Senagelese
32
See Vienna Convention on the Law of Treaties, supra note 5, art. 53.
33
Knuchel, "State Immunity and the Promise of Jus Cogens," Northwestern University
Journal of International Human Rights, 9 Nw. U.J. Int'l Hum. Rts. 149, 182; See also
Draft Articles on Responsibility of States for Internationally Wrongful Acts,
Commentaries, Art. 40, ¶¶ 4-6, in Report of the International Law Commission on the
Work of Its Fifty-third Session, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc.
A/56/10 (2001).
34
Ibid., 153.
35
Ibid; Caplan, State Immunity, Human Rights, and Jus Cogens.
36
See citation to Kartusch and Rabe’s report on pgs. 1-2.
11
woman's allegation of slavery as it states, "For the most severe cases amounting to
slavery, general international law offers a resolution: The prohibition of slavery is
generally acknowledged to have the status of . . . jus cogens in international law . . . In
situations when the exploitation of domestic workers amounts to slavery, the victims'
human rights thus precedes over diplomatic immunity."37 However, no sources are cited
to support this claim.
Examples of the use of jus cogens to argue for limits on the doctrine of state
immunity can be found in amicus curiae briefs submitted by organizations, such as the
Anti-Defamation League and the American Jewish Congress, in the United States
Supreme Court case, Samantar v. Yousuf, in 2010. The briefs argued that Somali natives
who filed allegations of torture, rape, arbitrary detention, and extrajudicial killing against
the former Somali Minister of Defense, First Vice President, and Prime Minister could
base their claim on the defendant's violation of jus cogens – the prohibition of torture.38
However, the Court rejected the immunity claim on other grounds.
E. Conclusions
International law obligates states to respect diplomatic and state
immunities. In the case before us, there appears to be several arguments that civil
suits could be maintained without violating these protections:
1. Diplomatic immunity – if the woman wishes to file a civil suit against the
diplomat or his wife, she must prove that the contract between them was
entered into pursuant to a commercial activity rather than a public or official
37
Kartusch and Rabe, 6.
38
Knuchel, 1.
12
activity. In view of the case law, this will not be easy to prove.39 But
depending on how broadly the judge decides to interpret the “commercial
activity” exception, an argument of this sort might be successful based on
some of the arguments Tai presents for a broad construction of the exception.
However, no matter what arguments the woman advances, the Ministry of
Foreign Affairs might consider requesting a waiver of immunity from the
sending nation to allow an Israeli court to investigate the woman’s claims.
Moreover, the Ministry might consider making such waivers a standard
practice.
2. State Immunity – if the woman wishes to file a civil case against the
international body or state which the diplomat represented, the prudent course
would seem to be an action alleging the tort of negligence as such actions are
exceptions to the state immunity doctrine or an employment action if the contract
is with the Embassy. In the negligence claim, the woman might allege that the
state was negligent in not instituting a series of protective steps in order to prevent
slavery in diplomatic households. For example – did the state hand out
educational material on this matter? Does the embassy employ a functionary
whose job it is to monitor abuse of household help? The woman might also
pursue an action under applicable employment laws, as employment contracts are
not subject to state immunity generally under Israeli law. As explained, state
immunity has progressively narrowed in recent years and it might be easier to
prove that the abuse was not related to a public function, but rather a commercial
39
Tabion v. Mufti, Montuya v. Chedid, Paredes v. Vila, and Sabbithi v. Al Saleh.
13
one, in an action against the state than it would be in an action against the
individual. It is easier to prove in the context of a claim of state as opposed to
diplomatic immunity that an activity is commercial rather than public and thus not
subject to immunity.
3. Jus Cogens - Alternatively, perhaps it would be possible to rely on recent
cutting edge legal reasoning suggesting that a claim regarding a violation of a
fundamental human right, which is jus cogens, is not barred by either diplomatic
or state immunity.
Tom Stanley-Becker
Intern
Office of the National
Anti-Trafficking Coordinator
14