A. The Fogarty Decision

The first case before the European Court of Human Rights (ECtHR) to consider the interrelationship of national law rules of State immunity and Article 6 in the employment context was Fogarty v The United Kingdom. Footnote ⁴Fogarty concerned an Irish national who was employed as an administrative assistant at the United States Embassy in London in the Foreign Broadcasting Information Service. She was dismissed from her post and subsequently obtained compensation for sex discrimination in the UK courts. The United States waived its immunity in this litigation. Fogarty then applied for a further position at the Embassy for which she was rejected, a decision that she again challenged in the UK courts on the ground of sex discrimination. On this occasion, however, the United States claimed immunity under section 16 of the State Immunity Act 1978 (UK) (SIA).

Section 4(1) of the SIA provides that ‘a state is not immune in respect of proceedings relating to a contract of employment between the state and an individual where the contract was made in the UK or the work is to be wholly or partly performed’ there. Section 16, however, excludes from the scope of section 4 claims concerning the employment of members of a mission as defined in the 1961 Vienna Convention on Diplomatic Relations (VCDR) and the 1964 Vienna Convention on Consular Relations (VCCR). Under Article 1 of these instruments, a member of a mission includes not only diplomatic or consular officers but also low-level administrative and technical personnel. As noted above, section 16 fails to take account of the different types of employment within an embassy or consulate, in particular that many positions have limited connection to the sovereign activities of the State. According to the UK SIA, therefore, a cook is as equally disentitled to sue his or her employer as is an adviser to the ambassador, even though both obviously have different levels of responsibility and contact with sensitive government material. In effect, therefore, a version of absolute immunity exists in respect of consular and embassy employment in the UK.Footnote ⁵

Returning to the Fogarty case, the claimant employee brought an action in the ECtHR against the United Kingdom, alleging that the grant of immunity under section 16 of the SIA violated the right of the employee to access a court to obtain redress under Article 6. The ECtHR rejected the argument, finding that where a State's grant of immunity to a foreign State was consistent with the principles of public international law, there is no violation of Article 6. In determining whether section 16 complied with international law, the court acknowledged that there was a general trend towards limiting immunity in employment-related disputes. National practice was, however, much more divided where the action involved employment at diplomatic or consular missions: while some States, such as the UK, granted immunity in respect of all employee claims, others granted it only in respect of acts by senior staff. It was therefore not possible to conclude that the UK position was so clearly aberrant to be in breach of international law.Footnote ⁶

Secondly, the court noted that questions relating to the recruitment of staff to missions may by their very nature involve sensitive and confidential issues relating to the diplomatic or organizational policy of a foreign State. The court found that there was no evidence of any international trend towards ‘relaxation of the rule of state immunity’ in the context of recruitment to foreign missions.Footnote ⁷

Two main threads therefore underlay the ECtHR's decision in Fogarty: first, that in 2001 it was impossible to identify a general customary international law rule of State immunity in respect of consular and diplomatic employment cases but second, in cases where orders for recruitment or reinstatement were sought, customary law clearly required the imposition of State immunity. Since cases in which recruitment or reinstatement have been sought have arisen very rarely in national court practice, this second finding of the court was uncontroversial. Reinstatement claims, in particular, are likely to have been few in number given the natural reluctance of an employee to return to a place of employment which has been the subject of a dispute.

The potentially far more significant finding in Fogarty for future cases was the conclusion that, apart from claims of recruitment or reinstatement, no general customary international law position existed in respect of embassy and consular employment disputes. Such an outcome would have potentially grave consequences for employees since it would allow a State to impose absolute immunity in respect of all disputes, consistently with Article 6 of the ECHR. There could therefore be no scope for ECtHR review of any employment case, regardless of the worker's duties or the particular claim filed before the national court. An employee's capacity for redress therefore would depend entirely on the country of employment and the forum in which litigation was brought. It seemed, therefore, after Fogarty that the various national laws on State immunity and diplomatic and consular employment would remain unaffected with little scope for control or influence at the supranational European law level.

B. The United Nations Convention on Jurisdictional Immunities of States and their Property

A significant development, however, occurred three years after Fogarty when the UN Convention was adopted by the UNGA. Article 5 of the Convention provides the presumptive rule that a State enjoys immunity from the jurisdiction of the courts of another State subject to the provisions of the present Convention. Article 11 is the relevant provision for contracts of employment but is slightly ambiguous on the status of embassy and consular employment disputes. While Article 11(1) provides for a general exception to immunity ‘in a proceeding which relates to a contract of employment’ for work performed in the territory of the forum, State immunity is then restored in a range of situations in paragraph (2). For example, immunity applies where the employee is a diplomatic agent or consular officer (subparagraphs (2)(b)(i) and (ii)),Footnote ⁸ where ‘the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual’ (subparagraph (2)(c)) or where the employee is a national of the employer State at the time when the proceeding is instituted, unless the person is a permanent resident of the forum State (subparagraph (2)(e)). The above exceptions are largely uncontroversial since few, if any, nation States would admit such claims in their current practice.

The more contentious exceptions are contained in subparagraphs (a) and (d). According to (a) immunity will apply if the employee has been ‘recruited to perform particular functions in the exercise of governmental authority’. Article 11(2)(d) provides that immunity will apply where ‘the subject of the proceeding is the dismissal or termination of employment of an individual and as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer state, such a proceeding would interfere with the security interests of that state’.

At first glance both such provisions have the potential to exclude a wide range of employee claims. Subparagraph (a) was derived from an earlier provision (also Article 11(2)(a)) in the 1991 International Law Commission Draft Articles on State Immunity (ILC Draft Articles) which imposed immunity where ‘the employee has been recruited to perform functions closely related to the exercise of governmental authority’. Such provision was interpreted to exclude suit by all persons ‘entrusted with functions related to state security or basic interests of the State’.Footnote ⁹ Apart from persons in senior, policy-oriented roles, ‘private secretaries, code clerks, interpreters and translators’ were barred from suing. Such a result would be closer to that applicable in States such as the UK that have imposed absolute immunity in respect of mission employment disputes. Indeed, the intention to exclude all administrative and technical staff at missions from their right to sue their foreign State employer is also made clear from comments by the Special Rapporteur of the ILC where he said that subparagraph (2)(a) was aimed at ‘exclud[ing] administrative and technical staff of a diplomatic mission from the application of [the general exception to immunity in] paragraph 1’.Footnote ¹⁰

Yet in 1999 the ILC Working Group, now under the chairmanship of Gerard Hafner, recommended an important change to Article 11(2)(a) of the ILC Draft Articles, with the aim of further restricting the scope of immunity. Henceforth, immunity would only apply where ‘the employee has been recruited to perform particular functions in the exercise of governmental authority’.Footnote ¹¹ Hafner, who was also Chairman of the UN Working Group which drafted the final version of the Convention, clearly intended that a more limited range of staff was to be embraced by the provision than under the original version. Notably, he refused to amend the provision in response to suggestions by other ILC membersFootnote ¹² that ‘administrative and technical staff’ should be specifically referred to in Article 11(2)(a) and denied rights to sue. Hafner stated that there is ‘no reason why administrative staff, for whom the practice of the courts was still not established, should be included in one particular category’.Footnote ¹³ In his view, therefore, it would be wrong presumptively to impose a blanket immunity in respect of claims by all administrative employees; the better approach is to apply the principle in subparagraph (2)(a) to determine if, on the facts of a given case, each employee was performing acts in the exercise of governmental authority and so decide immunity on an individual basis. In that way, regard could be had to the specific functions and roles carried out by the employee.

The issue arose again after the Draft Articles were referred by the ILC to the UN General Assembly Sixth Committee Working Group, with Hafner noting that ‘some delegations considered that the formulation of subparagraph (a) as proposed by the Chairman was too limited and that other categories of employees should be specified … (such as) administrative and technical staff’.Footnote ¹⁴ Once more, however, the provision was not altered and in his later commentary on the Convention, Hafner confirmed that subparagraph (2)(a) was not intended to include all embassy and consular employees. Writing in 2010 he noted that while the original version as drafted by the ILC ‘was potentially much wider’ in its coverage of mission employees, the final Convention provision does not embrace all administrative, technical or service staff without exception. Whether such employees in fact fall under (2)(a) will be ‘subject to their functions performed in the mission’ with those ‘performing auxiliary functions’ excluded.Footnote ¹⁵

It will therefore arguably be staff occupying positions implementing foreign and defence policies of the State, having contact with sensitive government material or performing roles with no private sector equivalent that will likely be found to perform ‘functions in the exercise of governmental authority’. A person responsible for issuing passports and visas,Footnote ¹⁶ advising the government and representing it at diplomatic conferencesFootnote ¹⁷ or providing intelligence-related servicesFootnote ¹⁸ would probably fall within this category. By contrast a chauffeur, responsible for driving members of the mission, an accountant,Footnote ¹⁹ or a marketing and product promotions agentFootnote ²⁰ are all arguably performing too generic and routine roles to be included. Service staff, such as cooks, cleaners, butlers or other persons responsible for ‘maintain[ing] the physical fabric’Footnote ²¹ of the mission, would also be excluded. If this limited view of the provision is correct,Footnote ²² then a substantial step has been taken to narrow the operation of State immunity in mission employment cases.

The other potentially contentious subparagraph in the UN Convention is Article 11(2)(d) which confers a discretion on senior officers in the defendant employer State to characterize any claim for wrongful dismissal or termination as one that ‘interferes with (its) security interests’ and in doing so, reinstate immunity. It is not known why such a provision was included since it was not present in the ILC Draft Articles.Footnote ²³ Unfortunately the subparagraph does have the potential to restore State immunity in many disputes where it otherwise would not have applied, since wrongful dismissal is a common complaint. ‘Security interests’ here refers to matters of national security as well as to security of diplomatic missions and consular posts.Footnote ²⁴ There is very little guidance on this provision although Hafner in his 2010 commentary suggests that it was intended to be sparingly used with the risk of ‘misuse’ being limited by the requirement that ‘the existence of such security interests … be determined by a superior state organ’.Footnote ²⁵ It remains to be seen whether Hafner's confidence in its limited use is justified. States with absolute views of State immunity in employment cases could be tempted to rely on their wide discretion under the provision to obstruct employees' claims and there would be little, if any, scope for claimants to obtain judicial review of such decisions.Footnote ²⁶ Fortunately, in a recent Indian decision,Footnote ²⁷ the court was careful not to find immunity under this provision where there had been no determination by the relevant foreign government authority that the proposed action for wrongful dismissal would interfere with the State's security interests.Footnote ²⁸

C. The Cudak and Sabeh El Leil Decisions

D. The Benkharbouche Decision

The issue of compliance of national laws on immunity with Article 6 of the ECHR recently arose in the decision of the English Court of Appeal in Benkharbouche v Embassy of The Republic of Sudan.Footnote ¹⁰⁹ In this case the Court affirmed an earlier judgment of the Employment Appeal Tribunal,Footnote ¹¹⁰ although on different grounds. The Benkharbouche case involved two appeals, one by B, who was a Moroccan national and employed at the Sudanese Embassy in London and the other by J, also a Moroccan national and a member of the domestic staff of the Libyan Embassy in London. B's action was for wrongful dismissal, unpaid wages, holiday pay and breach of the European Union Working Time DirectiveFootnote ¹¹¹ while J sued for wrongful dismissal and arrears of pay, holiday pay and for breaches of the Working Time and Race DiscriminationFootnote ¹¹² Directives. At the time J entered into her employment contract, she was neither a UK national nor habitually resident in that country. Both Sudan and Libya pleaded State immunity, based on sections 4 and 16 of the SIA. In the case of both B and J the first instance Employment Tribunal upheld immunity based on section 16(1)(a) which provides that ‘members of a mission’ have no right to sue. Additionally in the case of J, immunity was found under section 4(2)(b) which provides that an employee who was neither a UK national nor permanent resident at the time of entering the contract is barred from bringing proceedings. On appeal to the EAT, B and J both argued that the effect of section 16(1)(a) was to deny their right to access a court in breach of Article 6 of the ECHR, with J making the same allegation in respect of section 4(2)(b). Both claimants then argued that assuming a breach of Article 6 was established, the UK court must, pursuant to section 3 of the Human Rights Act 1998 (UK) (HRA), interpret the legislation to the fullest extent possible so as to comply with Article 6.

The EAT noted that the effect of the decisions in Cudak and Sabeh el Leil was to make the validity of a domestic court's finding of immunity under Article 11(2)(a) of the UN Convention depend upon ‘whether the proposed claim involved any public aspect of the employee's work’.Footnote ¹¹³ In the case of B and J, there was no evidence that adjudication of their disputes would engage any public governmental function of the foreign States. Hence, to the extent that a court would apply section 16(1) to impose immunity in such circumstances, it was inconsistent with Article 6 of the ECHR.Footnote ¹¹⁴

The position with respect to section 4(2)(b) of the SIA was less clear. In the case of J this provision was relied upon to impose immunity because she was not a national or habitual resident of the UK at the time of entry into her employment contract. The complication here, however, was that in the original 1991 ILC Draft Articles on State immunity such a restriction in national law would have been permissible but by the time the UN Convention was adopted, no such ground of immunity existed. Rather, the UN Convention would only grant immunity where the employee held the nationality of the employer State at the time the proceeding was instituted (Article 11(2)(e)). Yet, according to the ECtHR's direction in Cudak and Sabeh el Leil, the provisions of the UN Convention represent customary international law and so form the sole basis for assessing national law compliance with Article 6 of the ECHR. Hence, on this view, section 4(2)(b) is inconsistent. The UK EAT agreed with this outcome, although with ‘much greater hesitation’ given that the Draft Articles of 1991 would have recognized immunity in such circumstances.

The decision of the EAT was upheld by the English Court of Appeal but its reasoning differed in a number of key respects. First, the Court of Appeal accepted the approach of the ECtHR in Fogarty and Cudak that a Contracting State to the ECHR would not be in breach of Article 6 of the ECHR where it gave effect to a rule of international law requiring the grant of State immunity. In such a case ‘the grant of immunity would be held to be a proportionate means of achieving a legitimate aim’.Footnote ¹¹⁵ Secondly, the Court of Appeal rejected the view in Cudak and Sabeh el Leil that Article 11 of the UN Convention represented customary international law in respect of all embassy employment disputes. The diversity of State practice, the court said, made it difficult to determine ‘whether [immunity] covered disputes relating to the employment of staff at all levels’.Footnote ¹¹⁶ Also, the adoption of the UN Convention in 2004, its subsequent ratification by only 16 States and the fact that it was not yet in force were all further factors pointing against the view that Article 11 embodied custom.Footnote ¹¹⁷

So, the English Court of Appeal did not consider itself bound by the ECtHR's decisions in Cudak, Sabeh el Leil and Wallishauser on the status of Article 11 in customary international law. Yet, despite this conclusion, the Court of Appeal also rejected the principle in Fogarty, that is, that it is impossible to identify any customary international law principles in respect of embassy employment disputes. The Court of Appeal thought therefore that it was still necessary, for the purposes of resolving the dispute in Benkharbouche, to consider whether sections 16(1)(a) and 4(2)(b) of the SIA were ‘required by international law’ or at least within the margin of appreciation accorded to states … under international law'.Footnote ¹¹⁸ Of course, had the Fogarty approach been adopted by the Court of Appeal, the second of the above questions would have been answered in the affirmative, given the non-existence of any customary law rules under that view. So, even if section 16, for example, created a form of absolute immunity in all mission employment cases, the absence of any customary rule on the topic would mean that such a provision could never be outside ‘the margin of appreciation’ accorded to States.

The Court consequently felt that some attempt at an assessment of the customary international law position had to be made, at least in respect of the employees in Benkharbouche, who both fell within the category of service staff. The Court accordingly conducted its own examination of both State practice and international instruments on the issue of State immunity in service employee disputes. Significantly, the court found no evidence in the State practice or instruments of a rule of international law that required immunity to be granted in respect of claims of compensation by service staff at embassies. The position may well be different, the Court said, where the claim is for the recruitment, renewal of employment or reinstatement of an individual (such as in Fogarty) or where the proceedings would interfere with the security interests of the State. Neither consideration was present in the immediate cases.Footnote ¹¹⁹ Secondly, the Court said, and this was the crucial finding, ‘the preponderance of state practice’ supports the view that imposing absolute immunity in the case of all claims by service staff ‘can no longer be regarded as within the range of tenable views of what is required by international law’.Footnote ¹²⁰ The view of Garnett above, that the application of immunity to all embassy and consulate employment disputes is ‘likely inconsistent with … international law’Footnote ¹²¹ was referred to with approval.Footnote ¹²² Consequently, the Court found, section 16(1)(a) of the SIA did not comply with the customary international law standard and so was in breach of Article 6 of the ECHR.

The Court of Appeal's approach to section 4(2)(b) of the SIA also slightly differed from that taken by the EAT. Once again the Court made its own assessment of the customary international law position with respect to the application of immunity under this provision and found that that there was no ‘widely recognised acceptance that public international law requires the grant of immunity on such a basis’.Footnote ¹²³ For this reason alone there was found to be a breach of Article 6. Further, the Court of Appeal also held that section 4(2)(b), by imposing immunity where the employee was not a national or habitual resident of the UK at the time of entry into her employment contract, also breached Article 14 of the ECHR as it involved impermissible discrimination against foreign nationals living in the UK.

So, on the basis that Article 6 was breached by application of sections 16(1)(a) and 4(2)(b) of the SIA in the cases of B and J, the next question for the Court of Appeal was whether these provisions could be interpreted under section 3 of the HRA to make the legislation compliant with the ECHR and so allow the claims to proceed. The Court of Appeal adopted the analysis of the EAT on this issue.Footnote ¹²⁴ The EAT had referred to the decision of the House of Lords in Ghaidan v Goidin-Mendoza Footnote ¹²⁵ which discussed the approach to be taken to section 3 applications. Specifically, a court may read words into the legislation so as it make it comply with the ECHR provided that such words are not ‘inconsistent with a fundamental feature of the legislative scheme’ or with ‘its essential principles’.Footnote ¹²⁶ In essence, the court can ‘interpret’ but not ‘amend’ the legislation. Applying these principles to the SIA, the EAT in Benkharbouche refused to add words to sections 4(2) and 16(1) to render the provisions harmonious with the Convention. Parliament in the SIA has ‘set out a clear list in respect of whom a plea of immunity will fail and those in respect of whom it will succeed’ as part of its overall policy ‘deliberately to limit access to justice in certain cases’.Footnote ¹²⁷ To move a category of case from the ‘immunity’ group and place it in the ‘no-immunity’ group would distort the overall balance struck by the legislature. Such an action would be ‘legislation’ not ‘interpretation’.

The Court of Appeal, having agreed with and endorsed this analysis of the EAT, then proceeded to make a declaration that section 16(1)(a) of the SIA infringes Article 6 of the ECHR and section 4(2)(b) of the SIA infringes both Article 6 and 14 of the ECHR in their application to the claims brought by the present claimants.Footnote ¹²⁸ Note, however, that such a declaration of incompatibility under section 4 of the HRA does not affect the operation or validity of the SIA. The declaration acts at most ‘as a signal to Parliament that it needs to consider amending that legislation’.Footnote ¹²⁹ Such an outcome is of limited utility to an employee in the position of B or J, however, since he or she would still need to bring a claim before the ECtHR for breach of Article 6 to obtain compensation. Fortunately in the Benkharbouche case the employees had a further argument based on non-compliance with EU law which was successful. This aspect of the case is discussed below.

Hence, while in the Benkharbouche case the Court of Appeal did not accept the conclusion of the ECtHR in Cudak and Sabeh el Leil that Article 11 of the UN Convention represents customary international law in respect of all mission employment disputes, it nevertheless reached a result that was consistent with those decisions. Specifically, the Court of Appeal held that the application of absolute immunity by a State to claims for compensation by service staff is in breach of Article 6 of the ECHR. The Court of Appeal's approach therefore also differentiates between levels of staff in terms of the application of immunity, with service employees being permitted to sue because of their lack of proximity to the sovereign activities of the State. Such an analysis is in accord with the ECtHR view that determines immunity questions based on the role and functions of the employee. The main difference between the two approaches is that the English Court of Appeal confined its analysis to service staff whereas the ECtHR suggested that a ‘role and functions’ test should be applied to all mission employees, in particular, administrative and technical staff. According to the ECtHR, where such employees do not perform functions in the exercise of governmental authority and their claims do not affect State security or interfere with the operations of the mission, they are entitled to sue. Since, as argued above, there is also a clear trend in recent State practice in favour of this view, it is hoped that English courts in later decisions involving administrative or technical staff performing routine or generic duties will adopt this position. Of course, if they do not, their decisions may be liable to challenge before the ECtHR under Article 6.

E. Collective Labour Claims

As a final word on the UN Convention, some comment should be made about collective labour claims. A collective claim typically involves a trade union seeking representation in a workplace and such actions are not referred to in either the text or commentary to the Convention. In a recent Belgian decision,Footnote ¹³⁰ it was suggested that immunity applied to bar such suits on the basis that they were outside the scope of Article 11 and would, in the embassy and consulate context, interfere with the right of a State to organize its missions. Consequently, in that case, immunity was applied to block an application to establish a committee for the protection of non-diplomatic staff at an embassy. The Court considered that the absence of any exception for collective claims in Article 11 of the UN Convention meant that immunity must have been intended to apply in such cases. This analysis appears textually correct given that Article 5 creates a presumption of immunity for a foreign State which is then subject to an exception in Article 11(1) for ‘a proceeding which relates to a contract of employment’. Since a collective claim is brought by a labour representation body on behalf of a group of employees, it is not a proceeding in respect of a single contract of employment and so arguably would fall outside this provision. The absence of any reference to collective claims in the provision suggests that they were probably a deliberate omission.

Some support for the application of State immunity to collective labour actions comes from the decision of the Supreme Court of Canada in United States v The Public Service Alliance of Canada.Footnote ¹³¹ In that case, which has been recently followed by the Ontario Superior Court of Justice on similar facts,Footnote ¹³² a distinction was drawn between a collective claim on behalf of civilian workers at a US military base (that was barred by State immunity) and a suit by an individual employee at the base (that would have been admissible). The distinction is based on the fact that a collective claim would almost always be more disruptive and intrusive upon a foreign State's sovereignty and capacity to organize and administer its workforce than a suit by an individual employee. Immunity should therefore apply in the case of collective claims under the UN Convention, particularly where highly sovereign workplaces such as diplomatic and consular missions are involved. Consequently, an action challenging a ‘mass layoff’ of employees at the Venezuelan Embassy in Portugal was properly barred by State immunity because it would involve an investigation into the administration and staffing policies of the foreign State in its missions.Footnote ¹³³

A. Domestic Servants

Diplomatic and consular immunity have traditionally been regarded as distinct from State immunity as they apply where an individual official in the form of a diplomat or consular officer, as opposed to the State itself, is sued. The aim of diplomatic and consular immunity is to allow the agent to exercise his or her functions without any restraint or coercion on the part of the receiving State.Footnote ¹⁴⁸ In the employment context, diplomatic and consular immunity has often been invoked where a domestic servant employed by a serving diplomat or consular officer in his or her residence commences proceedings. Three types of claim have generally arisen: where domestic workers have been victims of slavery, involuntary servitude or forced labour, where they have been subject to human trafficking or where their contractual rights as employee have been violated due to non-payment of wages, lack of leave, etc.Footnote ¹⁴⁹ Unlike State immunity cases where most employees are ‘locally recruited’ residents of the forum State, domestic servant disputes typically involve immigrant workers hired outside the forum.

In response to such claims diplomatic and consular agents have relied upon immunities granted to them under the Vienna Convention on Diplomatic Relations 1961 (VCDR) and the Vienna Convention on Consular Relations 1964 (VCCR). Article 31(1) of the VCDR provides that a ‘diplomatic agent shall … enjoy immunity from the (receiving State's) civil and administrative jurisdiction’. Article 31(1)(c) provides that immunity will not be available ‘in the case of … an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions’. Such a provision has unfortunately acted as a form of absolute immunity barring all suits by claimants in diplomatic employment cases, because entry into a contract with a domestic servant has never been considered ‘professional or commercial activity’ by the diplomat. Courts in the United States, United Kingdom and other European countries have all adopted this position.

In Tabion v Mufti Footnote ¹⁵⁰ a United States Circuit Court of Appeals had to consider an action by a Filipino domestic servant against her employer, a Jordanian diplomat. The court upheld the diplomat's plea of immunity under Article 31(1)(c), holding that the hiring of a domestic servant as household help is an act incidental to the daily life of a diplomat in the receiving state and therefore not ‘professional or commercial activity … outside his official functions’.Footnote ¹⁵¹ Relying on the US Government's Statement of Interest in the case, commercial activity under the Article was found to ‘relate only to trade or business activity engaged in for personal profit’.Footnote ¹⁵² In subsequent decisions, United States courts have unanimously reaffirmed this view: see Gonzales Paredes v Vila,Footnote ¹⁵³Sabbithi v Al Saleh,Footnote ¹⁵⁴Montuya v Chedid Footnote ¹⁵⁵ and Fun v Polger. Footnote ¹⁵⁶ In a recent United Kingdom decision, Reyes v Al-Malki,Footnote ¹⁵⁷ the English Court of Appeal also found that ‘as a matter of ordinary language, a contract for the provision of services which are incidental to [a diplomat's] family or domestic life is not commercial activity’.Footnote ¹⁵⁸ According to the Court, such a conclusion was also supported by the contextFootnote ¹⁵⁹ and object and purposeFootnote ¹⁶⁰ of the provision.

The above position appears to have been taken with little regard to the extremity of the circumstances presented by the employee. While in all of the above cases the claimant pleaded breaches of contract based on excessive working hours and inadequate wages, in some cases additionally, serious human rights violations were alleged. For example in Sabbithi, the defendant was accused of having deprived the plaintiffs of their passports and physically abusing them, in Montuya the plaintiff complained of abuse and physical confinement to the defendant's residence and in Reyes the plaintiffs had been determined by the UK Government to be victims of human trafficking. Hence, it seems that any case involving an employment relationship between an incumbent diplomat and a domestic servant is excluded from judicial review. European domestic court decisions are consistent with this view.Footnote ¹⁶¹ An absolute immunity standard therefore effectively prevails.

On the question of human rights abuses, it is interesting to note that in the Sabbithi case the plaintiff employee sought to overcome the finding of diplomatic immunity by arguing that it was overridden by the international law doctrine of jus cogens. Jus cogens principles are peremptory norms of public international law ‘which … prevail over both customary international law and treaties’.Footnote ¹⁶² The plaintiff argued that human trafficking was such a norm. The court responded first by denying that such activity occurred on the facts and secondly, by again reciting the US Government's Statement of Interest, to the effect that there was no jus cogens exception to diplomatic immunity.Footnote ¹⁶³ The question arises once more as to whether the court should have given greater consideration to the issue of serious human rights violations and diplomatic immunity, especially given the paucity of available avenues of redress for employees.

Another observation that can be made of Article 31(1)(c) of the VCDR is that it differs in a key respect with its companion instrument, the VCCR. Article 43 (1) of the VCCR provides that ‘consular officers … shall not be amenable to the jurisdiction of the (courts) of the receiving state in respect of acts performed in the exercise of consular functions’. Under this provision, there is no requirement that an employee has to show, in addition to the functional test above, that the consular employer has engaged in ‘professional or commercial activity’ as exists in Article 31(1)(c) of the VCDR. While such a difference between the texts could be justified on the ground that diplomats, unlike consular officers, have a closer connection by their work to the sovereign affairs of the sending State, arguably this rationale is less compelling in the context of a suit by a domestic servant employee performing essentially ‘private’ duties at his or her residence. If the main objective of both the VCDR and the VCCR is to ensure that diplomatic and consular officers can perform their functions in the receiving State without interference then it is hard to see why a single functional test, such as is provided in Article 43(1) of the VCCR, cannot apply to determine immunity in both cases, at least in the case of suits by domestic servant employees. It is not at all clear why a diplomat requires the additional ‘professional or commercial activity’ protection to enable him or her to carry out their responsibilities effectively. Indeed, from the point of the view of the claimant domestic servant, the difference between the two formulations only serves to frustrate their legitimate pursuit of redress.

A United States Circuit Court of Appeals decision, Park v Shin,Footnote ¹⁶⁴ shows that domestic servant employees have a much greater chance of overcoming immunity once a purely functional analysis is applied. In Park a domestic servant was held entitled to sue her employer, the Deputy Consul General of Korea. The claimant's primary role was cooking, cleaning and taking care of the defendant's children and she also prepared and served food for guests of the consular officer at his home. The key fact for the court was that the claimant was the Shin family's ‘personal domestic servant’Footnote ¹⁶⁵ with the bulk of her duties and time focused on the care of the consular officer and his family, not official consular functions. The court also noted that the plaintiff's visa was for ‘personal employees of consular officers’ and that her salary, medical expenses and costs of travel to the US were all paid by the Shins directly.

So, the Park case demonstrates clearly that once the ‘professional or commercial’ activity requirement is removed, the prospects of success for domestic servants improve immeasurably, at least where such persons perform predominantly personal duties for their employer. There therefore seems, at least from the point of view of the employee, a case of discriminatory treatment between employees of diplomatic and consular officials. Surely in the situation where both employees perform the same general tasks within the sphere of personal domestic assistance, it is unreasonable that recovery should depend upon a person's choice of employer.Footnote ¹⁶⁶

A German court recently sought to justify the plainly inequitable position for domestic servants of diplomatic staff. In Pfarr v Anonymous Footnote ¹⁶⁷ the court noted that even though an incumbent diplomat cannot be sued, the receiving State could still declare the diplomat persona non grata and expel him or her under Article 9 of the VCDR, the employee could still commence proceedings against the diplomat in the sending State's courts or finally the employee could wait until the end of the diplomat's posting and sue him or her in the receiving State.

None of these options is, however, useful from the point of view of the aggrieved employee. In the first case, the decision to declare a diplomat persona non grata lies with the receiving State not the employee and so is subject to political considerations over which the employee will likely have little control. Also and more fundamentally, such a declaration does not provide compensation for the injured employee. As to the option of pursuing proceedings against the diplomat in the courts of the sending State, that is, the diplomat's State of nationality, such a route is likely to be expensive and onerous for an individual domestic servant and also unlikely to be successful if the courts are not impartial or independent of the executive. The third alternative may encounter problems of expired limitation periods, of locating the former defendant for service of court process (assuming he or she has left the receiving State)Footnote ¹⁶⁸ and also of finding assets in the receiving State against which any judgment can be executed (or failing that, being able to enforce any judgment in the sending State).

On the question of immunity, however, the German court is correct in saying that the position of employees is strengthened after the diplomat's employer has left his or her post. In such a case the relevant provision of the VCDR is Article 39(2) which provides that a former diplomat will only be entitled to claim immunity ‘with respect to acts performed … in the exercise of his functions as a member of the mission’. The immunity provided in this provision is therefore a more restrictive one than that existing under Article 31(1)(c) and is in fact the same as that for incumbent consular officials under Article 43(1) of the VCCR.

Not surprisingly then, and consistent with the above decision in Park v Shin, United States courts in a series of cases have interpreted Article 39(2) to hold that there is no diplomatic immunity in respect of actions that pertain to (the diplomat's) household or personal life … that may provide at best an indirect rather than a direct benefit to diplomatic functions’.Footnote ¹⁶⁹ Immunity therefore does not apply for acts that are ‘incidental to the exercise of a diplomat's functions as a member of the mission’ but only those ‘inextricably tied to his or her professional activities’ that is, ‘official acts’.Footnote ¹⁷⁰ On the facts of Swarna v Al-Awadi, the court found that the diplomat's employment of the plaintiff did not constitute an official act. The claimant was employed solely to meet the diplomat's and his family's personal needs by cooking, cleaning and caring for the defendant's children and only occasionally performed duties at mission-related functions. The fact that the employee was paid out of the diplomat's private funds and entered the US on a domestic/personal employee visa was further evidence in support of the above conclusion.

The court in Swarna also relied on the fact that the defendant allegedly raped the employee in further support of the conclusion that he had not been engaged in official acts since such conduct, by definition, could hardly be authorized. Here, for the first time, a US court is suggesting that the nature of the claim, in particular, where serious human rights abuses are alleged, will be relevant in determining whether diplomatic immunity should be available. By contrast, a UK court recently rejected this approach, declaring that once employment was found to be within the official functions of a diplomat, ‘[his or her] behaviour toward the domestic servant could not remove it from that category’.Footnote ¹⁷¹

The problem with this reasoning is that it treats all offending conduct by a diplomat alike for the purposes of determining the immunity question. Surely a failure to pay agreed wages should be considered differently to an allegation of human trafficking or slavery, for example. If diplomats were put on notice that they would lose their functional immunity when engaging in heinous conduct, then the law of diplomatic immunity could have a deterrent effect. In another UK decision the court seems more mindful of this point, finding that allegations of discrimination and harassment in the form of sexual abuse cannot ‘sensibly be argued … [to be] acts carried out in the functions of the mission’.Footnote ¹⁷² While it is true that the VCDR makes no express reference to human rights principles on the issue of immunity, it is not a great step to say that where abusive conduct is alleged against a diplomat or consular officer, he or she should not be able to assert that such activity is beyond judicial review because it occurred during the performance of his or her official functions.

Similar reasoning to the Swarna case was adopted in the later decision of Baoanan v Baja. Footnote ¹⁷³ There, once again a domestic servant was able to sue her employer where the bulk of her duties related to the private needs and domestic affairs of the diplomat and his family. This outcome was not affected by the fact that the diplomat and his family resided in the embassy. The court also followed the view expressed in Swarna that where an allegation made against the diplomat included serious human rights abuses, such as human trafficking and slavery, this must be seen as plainly unrelated to the diplomat's functions as a member of the mission.

United Kingdom courts have followed the Swarna and Baoanan decisions in two recent cases involving domestic servants, concluding that the work carried out clearly fell outside the official functions of the diplomat: see Wokuri v Kassam Footnote ¹⁷⁴ and Abusabib v Taddese. Footnote ¹⁷⁵ In Abusabib the court also suggested that while a ‘domestic worker who performs no task outside the diplomat's home’ would rarely, if ever, have a close connection with the functions of the mission, employment of other persons, such as personal assistants, may fall within that category.Footnote ¹⁷⁶ If this view is correct, then such staff, having contracted directly with diplomatic personnel rather than the foreign State itself, would be in an even worse position than domestic servants in terms of the application of diplomatic immunity.

B. Other Employees of Diplomats

This outcome can be seen in a number of United States decisions where persons employed to carry out routine and non-governmental responsibilities at embassies and consulates were barred from suit on the basis of diplomatic or consular immunity. In each caseFootnote ¹⁷⁷ the court relied upon Article 5(m) of the VCDR and VCCR, which provides that diplomatic or consular functions includes ‘any other functions entrusted to a diplomatic or consular post by the sending state which are not prohibited by the laws and regulations of the receiving state or to which no objection is taken by the receiving state’. The courts found that a diplomatic or consular officer's ‘managing and supervising [of mission] employees’ is a function of that officer within Article 5(m) and termination of the employment of staff is an act performed in the exercise of that function. Hence, such employees have no right to redress because their employment falls within the diplomatic or consular officer's official functions. Such a result is unjust when it is remembered that such actions would not be barred by State immunity under the UN Convention, had the persons been fortunate enough to have been employed directly by the foreign State or mission instead.

C. Reform

So, the position of employees of diplomats and consular officers is substantially more precarious than that of persons employed directly by a foreign State. From the point of view of the employee and the tasks which he or she performs it seems inequitable and discriminatory that the scope of immunity from jurisdiction should be substantially different. The question then is whether this situation can be changed, perhaps by reference to European law principles, as has occurred in the case of State immunity.

One option, that would benefit domestic servants of diplomats, would be for courts to alter their interpretation of ‘professional or commercial activity’ in Article 31(1)(c) of the VCDR so as to permit employment claims to be brought. Instead of defining such activity narrowly to refer only to ‘trade or business activity engaged in for personal profit’, an approach similar to that taken in respect of State immunity could be adopted whereby employment of persons not exercising sovereign authority could be considered ‘professional or commercial’. If this approach were accepted,Footnote ¹⁷⁸ a domestic servant of a diplomat would now be able to sue his or her employer given the clear and well-established view that such employment does not fall within the official functions of the diplomat. Essentially, domestic servants of diplomats would now be placed in the same position as similar employees of consular officers, which would be a positive step.

This change, however, will not help persons employed by diplomats or consular officers who are not domestic servants but perform administrative duties at the mission. For this category the recommendation is that Article 5(m) of the VCDR and VCCR no longer be interpreted to provide that the employment of such persons is a ‘function’ of a diplomat or consular officer. Not only is there no express wording in the provision referring to employment of persons but such an approach can be justified by the need to provide an equivalent interpretation of diplomatic and State immunity in employment matters. Once again, an approach that parallels State immunity could be applied whereby employment of persons not exercising sovereign authority are entitled to sue their employer, regardless of whether it is a diplomat or the foreign State itself. Persons employed at embassies or consulates in administrative or technical roles are surely entitled to the same level of protection and rights of redress, regardless of the identity of their employer.

While such a proposal, to amalgamate the law of State and diplomatic immunity in the context of claims by employees, may appear radical, it should be recalled that 50 years ago, at the time the VCDR and VCCR were created, the customary international law of State immunity also would not have allowed any mission employee to sue his or her foreign State employer. Yet, today, as a result of significant developments in State practice, as noted above and recognized by the Court of Appeal in Benkharbouche and the UN Convention, the position has changed in favour of greater recognition of employee rights. Specifically, where persons are employed in routine and generic roles and not engaged in sovereign activities of the State, the case for denying immunity is strong. It is true that there are important differences between State and diplomatic immunity with the rationale of the former being to preserve the sovereign equality of States and the latter to protect diplomats from interference by the receiving State with their functions. Yet, it is frankly hard to see why allowing an employee engaged in domestic service duties to sue his or her diplomat employer for compensation would intrude any more on the diplomat's functions or dignity than would occur to the foreign State if it were the employer. Hence, the employee's capacity to vindicate its rights should not depend on the identity of the employer where the employee's role and duties are indistinguishable in each case.Footnote ¹⁷⁹ Such a view is particularly asserted where the instrument invoked to deny employees redress, the VCDR, is now over 50 years old and arguably does not adequately reflect heightened contemporary concerns regarding the rights of individuals. In essence, an evolution similar to that which has occurred in employee rights and State immunity is advocated for diplomatic immunity as well.

The final strategy that may be considered in protecting employees of diplomats is an appeal to European law principles. The issue was considered in the recent decision of the English Court of Appeal in Reyes v Al-Malki.Footnote ¹⁸⁰Reyes again involved domestic servants employed in the official residence of a diplomat. Claims were brought against the incumbent diplomat for compensation for racial discrimination and harassment, unauthorized deductions from wages and for accrued but untaken holidays. As noted above, the Court first found that their actions would be barred by diplomatic immunity, as the diplomat was not engaged in ‘professional or commercial activity’ under Article 31(1)(c). The claimants next argued that the imposition of immunity violated their right of access to a court under Article 6 of the ECHR.

Applying the approach of the ECtHR in Fogarty and Cudak, the Court first had to determine whether the application of diplomatic immunity in this case was a proportionate restriction on the employee's right of access to a court. While the ECtHR in Cudak and Sabeh el Leil had found that the granting of State immunity in those cases was disproportionate because it was inconsistent with the customary international law standard established in Article 11 of the UN Convention, the context of diplomatic immunity was different. While the international law of State immunity may have undergone significant contraction in the employment field in recent years, no equivalent movement could be detected in the area of diplomatic immunity. Hence, the VCDR ‘remains an authoritative statement of international law on diplomatic immunity’.Footnote ¹⁸¹ Consequently, applying the test of proportionality in Fogarty, there could be no breach of Article 6 of the ECHR where the granting of diplomatic immunity by the Contracting State was consistent with the principles of customary international law as stated in the VCDR, which was the case here. Compliance with a State's international law obligations was again conclusive on the issue of proportionality.Footnote ¹⁸²

The effect of the decision in Reyes is that either a judicial reinterpretation or amendment of Article 31(1)(c) of the VCDR will be required to protect the interests of employees of diplomats. The Court of Appeal in that case accepted the premise of Fogarty, Cudak and Sabeh el Leil that a breach of Article 6 of the ECHR can only be established where the grant of immunity exceeds the customary international law standard. Assuming that the current interpretation of the VCDR represents customary international law, an employee can effectively never challenge a grant of immunity to an incumbent diplomat under the ECHR.

Yet, the interesting and unresolved question mentioned above in relation to the EU Charter should again be considered. If the view is taken that a breach of Article 47 of the EU Charter need not be premised on a violation of customary international law (unlike Article 6 of the ECHR) then the question arises whether an employee of a diplomat could challenge immunity where breaches of EU labour regulations are involved. In the Benkharbouche case, discussed above, the English Court of Appeal did not have to consider the question whether Article 47 could apply in the absence of a violation of international law since in that case the grant of State immunity was found to be a breach. Yet, if the effect of Article 52(3) of the EU Charter is to allow for more extensive protection of rights under EU law than under the ECHR, it is hard to see why international law principles such as diplomatic immunity, that prevent employees from vindicating their rights, should not be disapplied under Article 47. While such an argument would not have helped the employee in Reyes since no breaches of EU laws were alleged, if such violations were pleaded in a subsequent case, the way would be arguably open for a challenge to diplomatic or consular immunity under Article 47. It will be interesting to see if such an argument is raised in future cases.