Challenging the Vienna Convention on Diplomatic Relations: Possibilities of New Obligations to Protect Domestic Workers

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Challenging the Vienna Convention on Diplomatic

Relations: Possibilities of New Obligations to Protect

Domestic Workers

LL.M Thesis Public International Law

Vannesha Mae | 12319368 Supervisor: Dr Rosanne van Alebeek

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It has been more than fifty-years since the conclusion of the 1961 Vienna Convention on Diplomatic Relations. In a constant development state of international law, it is an appropriate time to review the applicability of the Convention in the light of contemporary legal order, especially human rights. The VCDR is one of the most successful Convention to

date founded on a wide range set of customary international law, among the rules are the inviolability and immunity of diplomats. There are obligations imposed on states stemming

from their commitments to protect human rights within their jurisdictions. This thesis examines whether there are ways to fulfil the obligations within the current framework of the

VCDR and contemplates whether an amendment is necessary in the current legal order.

Key Words: Vienna Convention on Diplomatic Relations, Human Rights, Domestic Worker, Diplomatic Immunity and Inviolability, Human Trafficking

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List of Abbreviations

ECHR European Convention on Human Rights ECtHR European Court of Human Rights ICJ International Court of Justice

ICCPR International Covenant on Civil and Political Rights UDHR Universal Declaration of Human Rights

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Introduction

The Vienna Convention on Diplomatic Relations (VCDR)1_{of 1961 is the cornerstone and}

authoritative codification of customary international law regarding diplomatic relations

between countries.2_{It is one of the most successful treaties to date in terms of the number of}

ratifications, covering almost every state in the world. Hence, it has served as a basis for modern diplomacy and relations between states. Nevertheless, since as early as the 1980s, the convention has received criticism from those who are aware of the potential it allows for abuse.3

In 2017, the Indonesian embassy in South Korea received a report from an Indonesian domestic worker who worked in the household of a diplomat. She sought the protection of the embassy after her wages were unpaid. Having heard, first hand, of such issues prompted the questions of whether this is a common experience for domestic workers and whether there can be proper protection or remedies for domestic workers.

Other similar situations have also been reported. In 2007, a Filipino domestic worker fled her place of work in the residence of a Saudi diplomat in Wassenaar, the Netherlands. When offered the job, she was promised a good salary and benefits, and it seemed a good opportunity

to provide for her family.4_{However, she was left eating bread from the rubbish bin because}

she was not given the meals promised to her in her contract. In another case, in 2008, a domestic worker suffered in similar circumstances. He was not given the promised salary and had to

work overtime without pay. He too finally fled the premises.5

No legal action was taken in these cases, as the employer’s status of inviolability and immunity

complicated the situations.6_{The rules on diplomatic immunity ‘comprises a well-established}

body of rules on the inviolability, immunities, and privileges applicable to the diplomatic

1_{Vienna Convention on Diplomatic Relations (Hereinafter “VCDR”) (adopted 18 April 1961, entered} into force 24 April 1964).

2_{E Denza, ‘Introductory Note on Vienna Convention on Diplomatic Relations’ (UN Audiovisual} Library) <http://legal.un.org/avl/ha/vcdr/vcdr.html> accessed 10 July 2019.

3_{Ibid, Denza.}

4_{Bart Dirks, ‘We schraapten de Schimmel van het brood’ (de Volkskrant, 2015)} <https://www.volkskrant.nl/nieuws-achtergrond/we-schraapten-de-schimmel-van-het-brood~b58aecf2/> accessed 5 July 2019.

5_Ibid. 6_Ibid.

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mission and its personnel.’7_{In the VCDR, there are some categories of persons who are} recognized as having immunity, such as the diplomatic agent, members of the administrative and technical staff, members of the service staff, and the private servant.8_{The type of} inviolability and immunities accorded to them varies, depending on the level and rank of the diplomatic personnel. This paper will focus on the diplomatic agents, who enjoy the highest level of immunity. Diplomatic agents are inviolable, and their immunity is absolute in criminal jurisdiction and nearly absolute in civil and administrative jurisdiction.

International law is in constant development, and increasing emphasis is being given to principles of human rights. Human rights treaties bring new obligations for member states to protect fundamental rights in their territories. Specialised non-governmental organisations (NGOs) and a number of reports have shown that abuse of domestic workers in diplomatic

households is a serious and on-going problem.9_{The issue has also been raised by UN Special}

Rapporteurs on contemporary forms of slavery, the EU Fundamental Rights Agency,10_the

Convention on the Elimination of all Forms of Discrimination Against Women,11_{and the}

International Labour Organisation. The fulfilment of treaty obligations may require a state to exercise their jurisdiction; however, this is not possible in the case of a diplomatic agent with immunity and inviolability. As a result, employees with grievances are often left without any remedy or access to justice.

Taking the situation described above into consideration, in particular the abuse of domestic workers in diplomatic households, this thesis sets out to answer the following questions:

7_{Rosanne van Alebeek, ‘Diplomatic Immunity’ (MPEPIL, May 2009)}

<http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1055?rskey=6Z2tjr&result=1&prd=OPIL> accessed 12 January 2019.

8_{VCDR (n 1) Art. 3.}

9_{Siobhán Mullally and Cllodhna Murphy, ‘Double Jeopardy: Domestic Workers in Diplomatic} Households and Jurisdictional Immunities’ [2016] SSRN Electronic Journal.

10_{European Union Agency for Fundamental Rights, Migrants in an Irregular Situation Employed in} Domestic Work: Fundamental Rights Challenges for the European Union and Its Member States 17 (2011),

http://fra.europa.eu/sites/default/files/migrants_in_an_irregular_situation_employed_in_domestic_wo rk_en.pdf.

11_{Committee on the Elimination of Discrimination Against Women [CEDAW], General}

Recommendation No. 26 on Women Migrant Workers, Doc. No. CEDAW/C/2009/WP.1/R (Dec. 5, 2008).

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1. Can states comply with their human rights obligations without infringing upon VCDR immunity and inviolability rules?

a. Are there measures that states can take to protect the human rights of domestic workers without infringing upon immunity and inviolability rules?

b. What is the role of jus cogens as a form of protection?

c. What is the room for the interpretation of VCDR in light of the demands of the contemporary international legal order?

2. Should the immunity and inviolability rules of the VCDR be amended to provide mechanisms to better protect the rights of domestic worker in diplomatic households?

To address these research questions, this thesis will first set out the legal framework of the VCDR. Chapter 1 begins by examining the historical context that led to the creation of the convention. This helps to better understand one of the reasons for the success of the convention; namely, its basis in customary international law. Secondly, the nature of the VCDR is explained, including its basis of reciprocity, which means that a unilateral act may be reciprocated with the same course of action in which state actually avoids, such as imposing their diplomats into a lesser protection. Thirdly, the key provisions of the VCDR are set out to show the scope of the convention. This chapter also discusses the limits of the convention, which allow a state to exercise jurisdiction over a diplomat in certain cases. Chapter 2 discusses the international law regarding human rights, especially human trafficking in light of the landmark case Reyes v

Al-Malki. General aspects and principles of international human rights are explained before a

deeper exploration is given of human trafficking in the context of human rights. The relationship between human trafficking and jus cogens is also discussed, highlighting the fact that some human rights that are relevant to the practice of human trafficking have acquired the status of jus cogens. This provides the foundation for chapter 3, which focuses on the potential conflict between human rights obligations and immunity and inviolability. The cases in which domestic courts may favour human rights over immunity are discussed to determine if there are general overriding norms prevailing over immunity. In the same chapter, the role of treaty interpretation is discussed extensively to examine the role of the harmonious interpretation of other treaties with the VCDR. The purpose of this discussion is to determine whether the convention can be interpreted in such a way as to fulfil the role of the contemporary legal order to protect human rights. Lastly, some examples of best practices are offered to provide an

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overview of the mechanisms that are available to states to ensure the protection of domestic workers without infringing inviolability and immunity rules. Finally, chapter 4 offers some recommendations to better protect domestic workers’ rights, such as an optional protocol to allow for the prosecution of diplomats and an international diplomatic court. The limitations of these recommendations are also discussed.

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Chapter 1: Legal Framework of Diplomatic Immunity

This chapter establishes the general scope and framework of diplomatic immunity. It first sets out the historical context of the legal concept of diplomatic immunity and how it led to the creation of the VCDR. It will then explain the nature of the VCDR itself, followed by the substantive rules of the convention. This chapter also discusses the limits of the immunity rules, and it concludes with an overview of the abuse that might arise from the immunity.

1.1. Historical Context of Diplomatic Immunity

Diplomacy is the ‘application of intelligence and tact to the conduct of official relations between the governments of independent states, extending sometimes also to their relations

with dependent territories, and between governments and international institutions.’12_{In other}

words, diplomacy is essentially a form of communication and a means of maintaining relations between states in a peaceful way. The persons conducting the diplomacy, who play the role of representatives, are called diplomats.

Diplomatic immunity refers to the status accorded to the diplomats. It is a form of protection or exemption from the jurisdiction of the receiving state. The concept and practice of diplomatic immunity can be traced back to the early Greek and Roman times and can be found in the Indian and Chinese traditions. Their practices resulted in an underlying consensus that a messenger or a diplomatic agent from a foreign territory was allowed to complete their mission

without any fear of interference.13_{Granting immunity to diplomatic agents means that they are}

‘not to be maltreated or subjected to any form of arrest or detention’.14_{The concept of} diplomatic immunity continued to develop as a result of the rise of nations in Europe during

the 13th_{and 14}th_{centuries. This changing state of Europe deepened the need for diplomatic}

exchanges, and the establishment of diplomatic relations became a necessity.15

During the 20th_{century, the increasing number of diplomats and states in the world necessitated}

the establishment of a common denominator with regard to diplomatic immunity and privileges.

12_{I Roberts (ed) Satow’s Diplomatic Practice (7}th_{edn OUP 2019) p 3.}

13_{J C Barker, International Law and International Relations (first published 2000, Continuum 1999)} p 162.

14_{Ibid (n 7).}

15_{Ibid; Rita Bonello, ‘Vienna Convention on Diplomatic Relations: Abuse Arising Therefrom’ (LL.D} thesis, University of Malta 2004) p 8.

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Consequently, there have been several attempts to codify diplomatic immunity, from the Règlement sur les immunités diplomatiques in 1895 and the Harvard Draft Convention on

Diplomatic Privileges and Immunities,16_{to the VCDR.}17

1.2. Vienna Convention on Diplomatic Relations

Following the long history of diplomatic immunity, the VCDR codifies a set of customary international law norms. The International Law Commission (ILC) began drafting the convention in the mid-1950s. It was adopted in 1961 and entered into force in 1964. The convention has set up several frameworks for diplomatic relations among states. Almost every

state in the world has signed and ratified the convention, which indicates its success.18

The preamble of the VCDR recognises the wide range of customary international law. It also sets out the purposes and principles of the convention to maintain international peace and security and promote friendly relations among nations. The privileges and immunities granted by the VCDR are not intended for the benefit of diplomats, but rather for the efficient performance and function of diplomatic missions.

Other reasons explain the success of the VCDR. It is based on mutual consent, as every state is both a receiving and a sending state. Hence, it is based on the principle of reciprocity. As Professor Eileen Denza says of a nation: ‘Its own representatives abroad are in a sense hostages who may on a basis of reciprocity suffer if it violates the rules of diplomatic immunity, or may

be penalised even for minor restrictions regarding privileges or protocol’.19_{However, the}

VCDR does not apply directly in every jurisdiction; some states have transposed the convention’s rules into their own national legislation, possibly introducing differences from the original rules. Nevertheless, national courts still refer to the VCDR on their judgements concerning diplomatic immunity, and they have consequently also played a role in the

development of the law.20

16_{Harvard Draft Convention on Diplomatic Privileges and Immunities (1932) 26 AJIL Supp 15.} 17_{Ibid (n 7).}

18_{Christopher Lau, ‘Diplomatic & Consular Law: Research Guide’ (2015) Legal Research Series 2,} 10.

19_{Denza (n 2).} 20_{Bonello (n 15).}

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1.3. Scope of Key Provisions of the VCDR

The general rules on inviolability and immunity are set out in articles 22–30 of the VCDR. Those articles also set out the privileges of diplomatic agents, such as exemption from tax, freedom of movement, and freedom of communication. For the purpose of this paper, only certain key provisions need to be explained.

The first is article 22.21_{It sets out the inviolability of the premises of the diplomatic mission.}

The article accords a wide – seemingly unlimited – inviolability right to the mission premises of the sending state. Consequently, the agents of the receiving state may not enter the premises without the consent of the head of the mission. Additionally, paragraph 3 states that the ‘furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.’ Which entails that the premises cannot be entered even if there is a judicial order.22

The inviolability applies not only to mission premises but also, at the same level, to the private residence and property of the diplomatic agent, as codified in article 30(1) VCDR. The key term in this article is ‘private resident’, which sets these provisions apart from those concerning mission premises. Private residences include rooms, apartments, or temporary residence of the diplomatic agent. In accordance with article 30(2), inviolability also extends to the diplomatic

agent’s papers, correspondence, and property.23_{According to article 29, diplomats have their}

own personal inviolability, meaning that they cannot be arrested or detained and are protected

21_{VCDR (n 1) Article 22 (1) The premises of the mission shall be inviolable. The agents of the} receiving State may not enter them, except with the consent of the head of the mission. (2) The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. (3) The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution

22_{ILC, ‘Draft Articles on Diplomatic Intercourse and Immunities with Commentaries’ (1958) UN} Doc (A/13/9) p 95, ‘Nevertheless, the rule has a value of its own in that it provides that the premises must not be entered even in pursuance of a judicial order. If the premises are leased or rented, measures of execution may of course be taken against the private owner, provided that it is not necessary to enter the premises of the mission.’

23_{VCDR (n 1) ‘His papers, correspondence and, except as provided in paragraph 3 of article 31, his} property, shall likewise enjoy inviolability.’

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from measures amounting to direct coercion. The wording of this article is absolute and thus does not allow for any exceptions.

These articles on inviolability rules create obligations for the receiving states to take ‘appropriate’ measures to protect the inviolability of diplomatic agents and mission premises. The use of the word ‘appropriate’ means that receiving states do not have to take all steps. This qualification prevents receiving states from having to carry out impossible tasks, and it may prevent arbitrary measures being taken by the receiving state, which may infringe sovereignty.

Article 31 provides rules on immunity from jurisdiction.24_{Jurisdiction can be defined as the}

power of states to subject persons or property to their laws, whether by legislative, executive,

or judicial means.25_{Diplomatic agents have absolute immunity from the criminal jurisdiction}

of the receiving state and extensive immunity from the civil and administrative jurisdiction of

the receiving state.26_{This immunity does not release diplomatic agents from responsibility; in}

other words, immunity does not necessarily mean impunity.27

Article 39(2) provides that the personal immunity of diplomatic agents ends when their functions in the receiving state come to an end and they leave the country. This is how

immunity is most commonly terminated.28_{However, this article also accords residual}

immunity, in which immunity ‘with respect to acts performed by such a person in the exercise

of his functions as a member of the mission, immunity shall continue to subsist.’29_Instituting

legal proceedings or setting aside immunity will have more likelihood of success under this

24_{VCDR (n 1) Article 31(1) ‘A diplomatic agent shall enjoy immunity from the criminal jurisdiction} of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction’ 25_{B H Oxman, ‘Jurisdiction of States’ (MPEPIL, 2007); Certain Questions of Mutual Assistance on} Criminal Matters (Djibouti v France) [2006] ICJ Rep 177 para. 157-200 concern the question on immunity from jurisdictions, whether a Head of State is immune from witness summons per 17 May 2005 and 14 February 2007, as they are a form of jurisdiction exercised by a State.

26_{VCDR (n 1) Art. 31.}

27_{Arrest Warrant Case (Congo v Belgium) [2002] ICJ Rep 3 para 60.}

28_{VCDR (n 1) Art. 39(2) ‘2.When the functions of a person enjoying privileges and immunities have} come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.’; Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th_edn, 2016) p 353.

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article. It is less of a risk to not grant immunity to a former diplomat rather than to an incumbent

diplomat.30_{This article was the ratio decidendi in the case Reyes v Al-Malki, which will be}

discussed extensively in chapter 3.

1.4. Limitations of the VCDR

1.4.1. Express Limitations of the VCDR

Article 31 lays down three exceptions to immunity from the civil and administrative jurisdiction: ‘(a) a real action relating to private 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; (b) 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; (c) an action relating to any professional or commercial activity exercised by the

diplomatic agent in the receiving State outside his official functions.’31_{For the purpose of this}

paper, only the last exception will be discussed, as it is relevant to the debate on human trafficking, in terms of the possibility to interpret the provision in a particular manner.

Article 31(1)(c) recognises an exception to immunity from the civil and administrative jurisdiction when diplomats are undertaking a professional or commercial activity beyond their official functions. The ILC commentary deems any professional or commercial activity to be

inconsistent with their mission and function as diplomatic agents.32

Additionally, there is a general prohibition against diplomatic agents undertaking professional

or commercial activities for profit in the receiving state.33_{This is set out in article 42 of the}

VCDR but was not included during the drafting process. The article was added because it was necessary to ensure that diplomatic agents limit their activities to official duties; it protects diplomats from accusations that they are using their privileges and immunities for their

30_{Out of 12 cases involving individual employee suing a diplomat, immunity was set aside in 4 cases} on the ground of Art. 39(2). See Philippa Webb, ‘The Immunity of States, Diplomats and

International Organization in Employment Disputes: The New Human Rights Dilemma?’ (2016) 27 EJIL 745-767, 754.

31_{VCDR (n 1) Art. 31(1).} 32_{ILC (n 22) page 98.}

33_{VCDR (n 1) Art. 42. ‘Article 42: A diplomatic agent shall not in the receiving State practise for} personal profit any professional or commercial activity.’

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personal interests.34_{Unlike article 31(1)(c), which extends to family members, article 42 is} only applicable to diplomatic agents themselves. Therefore, the correlation between the two articles is the practical effect of article 31(1)(c). Diplomats who do not comply with article 42 cannot hide under their immunity. In principle, article 42 does not forbid family members from undertaking professional or commercial activities for personal profit, although in reality some

states do not endorse such activities for a number of reasons.35_{However, when family members}

engage in such activities, their conduct is not covered by immunity in civil proceedings, by virtue of article 31(1)(c). This may be significant in cases involving the employment of domestic workers – if it can be argued that such cases fall under the category of professional or commercial activity – as family members cannot hide under the veil of immunity if there is an allegation of abuse.

The application of article 31(1)(c) concerns continuous activity, not merely a single activity. In addition, the conclusion of an ordinary contract that is incidental to the daily life of a diplomat, such as the purchase of goods or services, cannot be categorised as a commercial

activity.36_{In Tabion v Mufti in 1995, the United States District Court in Virginia ruled that the}

contract between a domestic worker and a diplomat does not fall under the category of

commercial activity in the sense of article 31(1)(c).37_{The court reiterated that the commercial}

activity referred to in article 31(1)(c) concerns the pursuit of a trade or business activity.38

1.4.2. General Limitations on the Application of the VCDR

Although the wording of the provisions discussed above may seem absolute, especially regarding inviolability rules, there is a generally recognised exception. In its commentary, the International Law Commission has explained that the principle of inviolability does not apply

to self-defence and measures preventing diplomats from committing crimes and offences.39

The International Law Commission recognises self-defence as a form of immediate reaction to

34_{Denza (n 28) p 386.} 35_{Roberts (n 11) p 132} 36_{ILC (n 22) p 98.}

37_{Tabion v Mufti (1996) 107 ILR 452.}

38_{Tabion v Mufti (1996) 107 ILR 452, Gonzales Paredes v Vila and Nielsen, 479 F Supp 2d 187} (2007), Sabbithi v Al Saleh, 605 F Supp 2d 122 (2009); Montuya v Chedid, 779 F Supp 2d 60 (2011); Fun v Pulgar, 993 F Supp 2d 470 (2014). See also Denza (n 28) p 251-253.

39_{ILC (n 22) p 97 ‘This principle does not exclude in respect of the diplomatic agent either measures} of self-defence or, in exceptional circumstances, measures to prevent him from committing crimes or offences.’

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a crime that may endanger the public or the lives of other people.40_{In the Tehran Hostages} case, the International Court of Justice (ICJ) also reaffirmed the limit of the personal inviolability and immunity of diplomats. If they are caught in the act of committing an assault or other offence, they may be briefly arrested by the police of the receiving state to prevent the

commission of that particular crime.41_{Scholars have also agreed on the existence of an inherent}

limitation of inviolability. Although it is appropriate to first obtain the consent of the head of the mission or the government of the sending state, in the absence of the consent, and as last resort, an entry to the mission premises without a consent cannot be excluded and can be justified to protect human life.42

Measures can also be taken to prevent diplomats from committing a crime. In principle, diplomats cannot be compelled to undergo certain forms of examination such as breath tests. However, the United States and Canada allow their police forces to ask diplomats suspected of

driving under influence of alcohol to submit to voluntary breath tests.43_{In London, a diplomat}

can be restrained from driving if caught under the influence of alcohol. The Netherlands has developed its own system that allows the police to conduct a breath test on a diplomat, if the diplomat agrees. Furthermore, vehicle keys may be temporarily confiscated.

Hence, despite the absolute wordings of the immunity and inviolability rules, there are occasions in which they can be derogated from. Some preventative measures can be enforced as long as ‘the object of the test is not punitive, but preventative, and serves to protect both the

driver and the possible victims’.44_{However, implementing such measures can still be difficult}

in practice; for example, police need to have reasonable grounds for assuming that the diplomat is driving under the influence of alcohol. The rationale for requiring reasonable grounds may be to prevent arbitrary detainment for medical check-ups or breath tests, which could be criticised for infringing the VCDR. Justification for any form of restraint sometimes requires

an actual continuing or extreme risk to the public.45

40_Ibid.

41_{Tehran Hostages Cases (United States v Iran) (Merits) [1980] ICJ Rep 3 para 86.} 42_{Denza (n 28) p 123.}

43_{Roberts (n 11) p 248-249.} 44_{Denza (n 28) p 222.}

45_{Mareke Aden and Petra Bornhöft, ‘Diplomats in Berlin Use Immunity to Commit Crimes’ (Spiegel,} 27 February 2007) <https://www.spiegel.de/international/spiegel/licensed-to-sin-diplomats-in-berlin-use-immunity-to-commit-crimes-a-468715.html> accessed 15 July 2019.

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1.5. Mechanisms in the VCDR to Control Diplomatic Missions

The ICJ in the Tehran Hostages case stated that ‘the rules of diplomatic law … constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means

at the disposal of the receiving State to counter any such abuse.’46_{In other words, the VCDR}

has been drafted in such a way as to ensure the balancing of interests between the sending state and the receiving state, with, on the one hand, the privileges and immunities accorded to diplomats, and, on the other hand, the mechanism provided in the treaty for the receiving state to control and counter possible abuse by the diplomats.

Article 4 states that ‘the sending state must make certain that the agreement of the receiving

State has been given for the person it proposes to accredit as head of the mission to that State.’47

Acquiring the agreement of the receiving state is the first process of appointing the head of the mission. If the receiving state does not agree with the sending state’s choice for the head of the mission, that person cannot be accredited. Articles 5 to 9 provide other mechanisms to choose

members of the mission and the possibility of declaring a diplomat persona non grata.48_The

declaration of persona non grata, simply means an unwanted person.49_{Once declared, the}

diplomatic agent will be recalled by the sending state. Such a declaration can be issued by the

receiving state without explanation.50_{Lastly, the drafters of the VCDR realised that having an}

unusually large number of personnel for the mission may create problems. Article 11 creates the possibility for the receiving state to limit the size of the mission and to reject certain

categories of people.51

As described above, there are mechanisms provided by the VCDR for the receiving state to have a say in who will conduct the mission. Some measures are preventive, namely articles 4-11, while article 9 illustrate a punitive measure. Barker reaffirmed the UK Foreign Affairs Committee on their stance regarding the mechanisms provided by the VCDR that if the

46_{Tehran Hostages Cases (United States v Iran) (Merits) [1980] ICJ Rep 3 para 40.} 47_{VCDR (n 1) Art. 4; ILC (n 22) p 91.}

48_{VCDR (n 1) Art. 9.} 49_Ibid.

50_Ibid. 51_Ibid.

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provisions are used properly, they can be very effective.52_{The statement made by the UK} Foreign Affairs Committee was a result of investigation of the articles of the VCDR after Yvonne Fletcher was shot outside the Libyan Embassy in the UK, the shot was fired from inside the embassy building, which means that the building was inviolable and suspects were deemed to have immunity. Therefore, if the articles are considered to be sufficient to prevent such event where persons having immunity allegedly commit a hostile behaviour and victims cannot obtain justice from happening in the host state, the articles can be applicable to ensure that the diplomats who will conduct the missions have good track records and will not abuse their domestic workers in the household.

52_{J C Barker, ‘In Praise of Self-Contained Regime: Why the Vienna Convention on Diplomatic} Relations Remains Important Today’ in Paul Behrens (ed.) Diplomatic Law in New Millennium (OUP 2017) p 25.

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Chapter 2: Human Rights Law

2.1. Introduction to Human Rights Law: General Remarks

In the past, international law only governed the relationships of sovereign states. Its essence was simply the co-ordination and co-operation of states. This understanding is clearly illustrated in the VCDR, as it ensures the smooth functioning of a diplomatic mission between

states. However, since the Universal Declaration of Human Rights (UDHR),53_{another branch}

of international law, concerning human rights, has gained significance. What is significant about human rights law is its objective to protect individuals. It seeks to ensure that individuals

are guaranteed the enjoyment of a number of values common to the international community.54

Now, there are a number of human rights treaties. They contain provisions that can be applied to protect the rights of domestic workers, such as the right to just and favourable working conditions,55_{the right to physical integrity and the prohibition of torture,}56_{and the prohibition}

of slavery, servitude and forced labour.57

There are basic principles pertaining to the application of international human rights law. First, states can no longer invoke the rule of non-intervention in other states’ internal affairs in

matters concerning human rights.58_{Second, there are certain non-derogable human rights that}

apply even in public emergencies or in times of war.59_{The prohibition of torture and slavery}

is one of the non-derogable principles. Accompanying the already established principles are evolving norms concerning the responsibility of states to prevent human rights abuses and to

protect the human rights of all persons within their jurisdictions.60

53_{Universal Declaration of Human Rights (Hereinafter “UDHR”) (adopted 10 December 1948,} entered into force 3 January 1976) UNGA Res 217 A(III) (UDHR).

54_{Vasak, “Toward a Specific International Human Rights Law,” in Vasak & Alston (eds), The} International Dimensions of Human Rights (1982) 671-679, 671.

55_{International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966,} entered into force 3 January 1976) 993 UNTS (ICESCR) Art. 7.

56_{International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force} 23 March 1976) 999 UNTS 171 (ICCPR) Art. 17, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Art. 3. 57_{ICCPR Art. 8.}

58_{See Malcolm N Shaw, ‘International Law’ (7}th_{edn Cambridge University Press 2014) p 199.} 59_{Ibid. Such as the right to life, non-retroactivity of criminal offences.}

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2.2. Human Rights and Human Trafficking

The Palermo Protocol61_{gives the internationally accepted definition of human trafficking as:}

the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.62

This definition consists of three main elements: the act of recruiting persons, the means to

obtain such recruitment, and the purpose of the recruitment.63

There are fundamental human rights that are connected with human trafficking. For example, the right to freedom of movement can be violated when a domestic worker is prohibited from leaving the house. The right to an adequate standard of living can be violated if workers are not given proper food or the promised wage. To determine a state’s obligations that emanate from human rights treaties, it is important to scrutinise human trafficking from the perspective

of human rights.64_{However, it is also important to distinguish the prohibition of human}

trafficking from the prohibition of trafficking-related practices before considering the

obligation imposed on states.65_{Until now, some important human rights treaties have not}

contained express reference to human trafficking. Nevertheless, human trafficking is considered a serious human rights violation, and the concept is continually evolving and under consideration in the international legal order. In the absence of explicit reference to human

61_{Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,} Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) (2000) UN Doc A/53/383, Art 3 (Palermo Protocol)

62_{Ibid. Art. 3.}

63_{What pertains to the act of trafficking is for example the use of coercion as the mean of recruiting,} the purpose of the employment is to exploit the workers, etc.

64_{OSCE, ‘Human Rights and Human Trafficking’, 2014, p 5.} 65_Ibid.

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trafficking, the European Convention on Human Rights (ECHR) considered it to fall under the

ambit of article 4 of the ECHR.66

2.3. Human Rights and Jus Cogens

Another development of international law revolves around the concept of jus cogens which

refers to fundamental, overriding principles of international law.67_{Thus, it continues to apply}

regardless of any other norms of international law. Jus cogens norms are also known as peremptory norms and evidently recognised by the ILC signified by the inclusion of the concept in the Vienna Convention on the Law of the Treaties (VCLT).68_{In the absence of} examples, article 53 of that convention defines a peremptory norm as a norm of general international law that cannot be derogated from and can only be modified by an international

law of the same character.69_{The commentary, however, contemplates the prohibitions against}

the use of force, trade in slaves, piracy, and genocide.70_{The question of whether a norm is part}

of jus cogens relates to the legal character of the norm.71_{In the Nicaragua case, the ICJ} confirmed that the prohibition against the use of force has gained a peremptory status, other

courts have also continuously contribute to the development of the concept of jus cogens.72

66_{Council of Europe, ‘Guide on Article 4 of the European Convention on Human Rights’ (CoE, 30} April 2019) available at <https://www.echr.coe.int/documents/guide_art_4_eng.pdf> accessed 10 July 2019. Article 4 ECHR prohibits slavery and the slave trade in all their forms. There is no reference to human trafficking, but in numerous cases, the ECtHR considered human trafficking to fall under Article 4 ECHR. See Rantsev v Cyprus App no 25965/04 (ECHR 7 January 2010), J and Others v Austria App No 58216/12 (ECHR, 17 January 2017), M and Others v Italy and Bulgaria App No 40020/03 (ECHR, 31 July 2002), L.E. v Greece App No 71545/12 (ECHR, 21 January 2015), Chowdury and Others v Greece App No 21884/15 (ECHR, 30 March 2017).

67_{Cornell Law School, ‘Jus Cogens’ (Legal Information Institute)}

<https://www.law.cornell.edu/wex/jus_cogens> accessed 26 July 2019.

68_{Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January} 1980).

69_{Ibid Art. 53.}

70_{ILC, ‘Yearbook of the International Law Commission’ (1966) UN Doc A/CN.4/187 p 248. See also} ILC Study Group on Fragmentation of International Law: Difficulties Arising from the

Diversification and Expansion of International Law, Report, UN doc. A/CN.4/L/682 para 374. 71_{Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v} United States) (Merits) [1986] ICJ Rep 14 para. 190.

72_{For example, in the Al-Adsani Case the ECtHR recognized that the prohibition of torture have} acquired the status of jus cogens norm. Al-Adsani v United Kingdom App No 35763/97 (ECHR, 21 November 2001)

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Although some human rights are non-derogable, that does not automatically imply that those

are jus cogens norms.73_{Nevertheless, there are certain human rights that are indeed treated as}

peremptory, including, among others, the prohibition of slavery.74_{In addition, in the case of}

Al-Adsani, the European Court of Human Rights (ECtHR) confirmed that the prohibition of

torture has also acquired a peremptory status. It has been mentioned that the VCDR recognises general overriding norms over immunity. However, the consideration of the jus cogens nature of some human rights remains relevant to determine whether immunity can be set aside if there is a claim involving human rights that have acquired jus cogens status. Arguably jus cogens holds the position of a higher body of law, and so it is appropriate to determine whether this stance persists when jus cogens norms interplay with immunity rules.

2.4. Obligation of States Imposed by Human Rights Law

As has been mentioned, there is growing importance given to the positive obligation imposed on states to protect human rights norms. The duty and obligation of a state to prosecute is set out in several human rights treaties. The ECHR guarantees a number of rights that entail positive obligations as well as the negative obligation to refrain from infringing those rights. Some of the positive obligations include the obligation to penalise and prosecute acts that are aimed to infringe those rights.75_{Consequently, the obligation to prosecute may include the}

requirement to take legislative and administrative measures to punish those acts.76_The

obligation to prosecute and investigate can also be found in the International Covenant on Civil and Political Rights (ICCPR) as a part of the duty to ‘respect and ensure’ the rights contained in the ECHR, as well as the American Convention on Human Rights, as illustrated in the first article.77

73_{Ibid (n 62). “Nor would it be correct to say that a provision in a treaty possesses the character of jus} cogens merely because the parties have stipulated that no derogation from that provision is to be permitted…” This also implies that those non-derogable norms does not render a treaty void, but constitute a violation of another obligation to comply with one.

74_{For example, in America, treaty dealing with slavery could not be invoked before it. See Aloeboetoe} et. al. v Suriname, Judgement, Inter-American Court of Human Rights (10 September 1993) para 56-57.

75_{Especially with regards to Article 2, 3 and 8 of ECHR that guarantees the right to life, prohibition} of torture and right to respect family life. However, in Siliadin v France, the ECtHR ruled that Article 4 on the prohibition of slavery, states also have positive obligations. See Siliadin v France App No 73316/01 (ECHR, 26 July 2005)

76_{Rantsev v. Cyprus and Russia (n 59) para. 285.}

77_{Organisation of American States (OAS), American Convention on Human Rights, “Pacts of San} Jose”, Costa Rica, 22 November 1969 available at

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Another obligation stemming from human rights conventions is the obligation to provide effective remedy for the victims of violations. This obligation guarantees access to justice, which usually involves access to a court. The right for the access to justice is reiterated in the UDHR that states ‘everyone has the right to an effective remedy by the competent national

tribunals for acts violating the fundamental rights granted him by the constitution or by law.’78

The ICCPR also contains the same right with additional requirements on what state parties

have to take to ensure the access to justice.79_{In the ECHR, this is set out in article 6, and has}

been the center of debate in European cases concerning human rights and immunity. Therefore,

access to justice is vital in human rights framework and the implementation must be ensured.80

2.5. Tension between Human Rights Norms and Diplomatic Immunity

Given the nature of diplomatic law on the one hand and the obligation of states stemming from human rights treaties on the other, tension between diplomatic immunity and international human rights law is inevitable. The obligation on states to investigate and prosecute allegations of human rights abuses requires certain measures that cannot be imposed on diplomats due to their immunity. In the Arrest Warrant case, it was decided that the mere issuance of an arrest warrant for a Minister of Foreign Affairs was a violation of the obligation of Belgium to respect immunity.81_{In the Netherlands, the Court of Appeal also ruled that the act of the police} imposing a fine on a diplomat is an exercise of jurisdiction and is thus inconsistent with the

VCDR.82_{As a result, although proceedings have been initiated, they have been hindered due}

to diplomatic immunity, and obligations to pursue allegations of human rights abuses have been rendered ineffective.

https://www.oas.org/dil/access_to_information_American_Convention_on_Human_Rights.pdf Art.1.1.

78_{UDHR (n 52).}

79_{ICCPR (n 55) Art. 2; a. To ensure that any person whose rights or freedoms as herein recognized are} violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; b. To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; c. To ensure that the competent authorities shall enforce such remedies when granted. 80_{ECHR (n 55) Art. 6.}

81_{Arrest Warrant Case (n 15) para 70.}

82_{Bart Koenders and Ard van der Steur , ‘Diplomatic Immunity’ (Tweede Kamer)}

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The right of access to a court may also conflict with diplomatic immunity, as the court of the receiving state cannot exercise jurisdiction over a diplomat, unless it falls within the exceptions set out in article 31. The tension is particularly present with the hurdles faced with domestic worker who are unable to prove that their contract falls under article 31(1)(c). Therefore, abused domestic worker, whose human rights are violated, cannot obtain access to justice. Another example, in the Al-Adsani case, which will be discussed more extensively in the next chapter, the ECtHR upheld diplomatic immunity, despite agreeing that the prohibition of torture has acquired a peremptory status. Consequently, alleged victims were left without any redress.

A preliminary conclusion can be drawn. Diplomatic immunity prevents the exercise of jurisdiction even when the jurisdiction may be exercised to protect the public interest or fundamental rights of persons. It blocks the process from which one can obtain justice. Consequently, there is a clear tension between protecting these human rights norms and immunity rules. The next chapter explores whether there is room to accommodate the protection of fundamental rights within the current framework.

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Chapter 3: Human Rights Law and the VCDR

3.1. Clashing Obligations

As mentioned in section 1.4.2, there is a general limitation on the inviolability of diplomats when it is necessary to protect human life, despite their being little support for the limitation in the VCDR. In addition to the Tehran Hostages case, the argument that there are norms that override immunity is also illustrated in the Ferrini case, which supports the normative

hierarchy argument that jus cogens overrides immunity.83_{The Italian Supreme Court reached}

the conclusion as they considered that state immunity must be interpreted in relations to other norms of international law, and priority must be given to a hierarchically higher norm, that is

jus cogens.84_{There have been cases in which domestic servants are deprived from sufficient} food or adequate living conditions or had their freedom curtailed. In such cases, their lives may be considered as being in danger, and these situations may be considered to fall within the general limits of inviolability and immunity. However, as far as jus cogens and immunity is concerned, most jurisprudences do not accept this position. The cases that will be discussed concern state immunity but remain relevant for discussing diplomatic immunity. Because state and diplomatic immunity are still closely related and the discussion of the relationship between

jus cogens and state immunity apply equally diplomatic immunity.85

In the Jurisdictional Immunities case, the ICJ decided that immunity and jus cogens norms do not conflict because they are two different sets of norms operating on different levels.86_Jus

83_{Ferrini v. Federal Republic of Germany (2004), Cass sex un 5044/04; 87 Rivista di diritto} internazionale (2004) 539. See Also Siderman de Blake v. Republic of Argentina, 965 F 2d 699, at 718 (CA 9th Cir. 1992), Prefecture of Voiotia v. Federal Republic of Germany (2000), Case No. 11/2000, Lozano 91 Rivista di diritto internazionale (2008) 1223 , FRG v. Mantelli and others, Order No. 14201 (2008), Milde (‘Civitella’), 92 Rivista di diritto internazionale (2009) 618, and by six of the dissenting judges (Rozakis and Caflisch, joined by Wildhaber, Costa, Cabral Barreto, and Vajić) in App. No. 35763/97, Al-Adsani v. United Kingdom, 34 EHRR (2002) 11.

84_{Ferrini (n 82) para 9.1. See also Rosanne van Alebeek, ‘Van Alebeek R, ‘Immunity and Human} Rights: A Bifurcated Approach?’ (2010) 104 American Society of International Law 67-72, 68. 85_{Peter Tobias-Stoll, ‘State Immunity’ (MPEPIL, April 2011)}

<https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1106> accessed 10 August 2019, Dapo Akande and Sangeeta Shah, ‘Immunity of State Officials, International Crimes, and Foreign Domestic Court’ (2011) 21 EJIL 816, 834.

86_{Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening), ICJ, Judgement of 3} February 2012 para 93. “The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful.” See also Al-Adsani v United Kingdom App No 35763/97 (ECHR, 21 November 2001) para 61. “Notwithstanding the special

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cogens is substantive law that governs rights and obligations and determine whether a conduct

is lawful or unlawful while immunity rule is procedural law that governs among others, judicial proceedings, and hence the former do not have any effect on the latter. Consequently, what was held in the Ferrini case was neglected since the Italian Supreme Court decided to comply with

international decisions.87_{The doctrine of substantive-procedural relationship of jus cogens in}

Jurisdictional Immunities judgement was highly criticised for being excessively formalistic,

and identified as a technique to avoid conflict and the question of normative hierarchy.88

Nevertheless, the jurisprudence was relied on by the ECtHR in the case of Al-Adsani v UK. A British–Kuwaiti national instituted a civil proceeding in a British court for alleged acts of torture committed by Kuwait; Kuwait claimed state immunity. The British court ruled that they did not have jurisdiction, as the British State Immunity Act of 1978 does not allow for an implied exception for jus cogens violations. Following this result, Al-Adsani contended that the prohibition of torture is a peremptory norm that should override immunity. He then appealed to the ECtHR for alleged violations of articles 3 and 6 of the ECHR. While the ECtHR recognised the prohibition of torture as peremptory, they nevertheless decided that the blanket of immunity cannot automatically be lifted for civil proceedings involving peremptory norms.

However, there is strong dissent from the decision in this case. Eight of the seventeen judges based their reasoning on the normative hierarchy argument: ‘… jus cogens … is hierarchically higher than any other rule of international law, be it general or particular, customary or conventional… [I]t overrides any other rule which does not have the same status. In a conflict

between a jus cogens rule and any other rule of international law, the former prevails’.89_The

judges took their position from the overriding effect of the jus cogens norms. They were of the view that there is a normative hierarchy, a vertical relation, between peremptory norms and

character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.”

87_{Italy, Supreme Court of Cassation, Federal Republic of Germany v Ferrini and Ferrini, Case No} 1136, 21 January 2014, ILDC 2724 (IT, 2014).

88_{L. McGregor, ‘Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’,} (2007) 18 EJIL 903, 911; P. Webb, ‘Human Rights and the Immunities of State Officials’, in E. de Wet and J. Vidma (eds.), Hierarchy in International Law: The Place of Human Rights (2012), 114, 147.

89_{Joint Dissenting Opinion Judge Rozakis, and Caflish, joined by Judge Wildhaber, Costa, Cabral} Barreto and Vajić in Al-Adsani v the UK App No 35763/97 (ECtHR, 21 November 2001) p 29.

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other rules of international law. State immunity is a customary international law and consequently stands lower in the hierarchy than jus cogens. The minority of judges criticised the majority for recognising the importance of the jus cogens norm but failing to accept its consequences.

Additionally, in his own separate dissenting opinion, Judge Loucaides not only reached the same conclusion, but also went further, saying that there is no necessity to distinguish between criminal and civil suits. He reasoned that:

any form of blanket immunity, whether based on international law or national law, which is applied by a court to block completely the judicial determination of a civil right without balancing the competing interests, namely those connected with the particular immunity and those relating to the nature of the specific claim which is the subject matter of the relevant proceedings, is a disproportionate limitation on Art 6 § 1 of the [ECHR] and for that reason it amounts to a violation of that Article. The courts should be in a position to weigh the competing interests in favour of upholding immunity or allowing a judicial determination of a civil right, after looking

into the subject matter of the proceedings.90

This is not the first time that the view that jus cogens norms should prevail has been endorsed. In 2002, Judge Al-Khasawneh in his dissenting opinion in the Arrest Warrant case before the ICJ also voiced his concern regarding the importance of jus cogens norms, saying that they had to prevail over any other norms: ‘The effective combating of grave crimes has arguably assumed a jus cogens character reflecting recognition by the international community of the vital community interests and values it seeks to protect and enhance. Therefore, when this

hierarchically higher norm comes into conflict with the rules on immunity, it should prevail’.91

While there is a general limitation to inviolability to protect human life and in situations of emergency, Courts are still reluctant to favour other norms over immunity even in cases involving jus cogens. The ECtHR in the landmark Al-Adsani judgement for example, ‘missed

90_{Dissenting Opinion of Judge Louicades in Al Adsani v United Kingdom (n 73).}

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a very good opportunity to deliver courageous judgement’, and the victim was still barred from

obtaining access to justice as a consequence of the blanket immunity.92_{However, there is a}

strong support for the argument that jus cogens should trump immunity, considering the importance of the norm.

3.2. Role of Treaty Interpretation –Art. 31(1)(c) VCDR

According to McClahlan, ‘the content of international law changes and develops continuously – it provides a constantly shifting canvas against which individual acts, including treaties, fall

to be judged.’93_{To apply the provisions of a treaty to the facts of the case, the treaty text must}

be interpreted,94_{and particularly with regards to other norms of international law. The Vienna}

Convention on the Law of Treaties (VCLT) has established guiding principles for treaty interpretation. Article 31(1) sets out the common method of interpretation, which involves

referring to the ordinary meaning, context, object and purpose of the treaty.95_{Such a method}

of interpretation, however, must also consider the additional rule set out in article 31(3)(c) that states that a treaty shall be interpreted with ‘any relevant rules of international law applicable in the relations between the parties.’96

The prime example of this method of interpretation is the ICJ’s advisory opinion on the Legal

Consequences for States of the Continued Presence of South Africa in Namibia, in which the

ICJ took into account the development in international law of the concept of

self-determination.97_{Following this decision, more cases involving international law made}

reference to interpretation.98_{For example, the ECtHR states that in interpreting the ECHR} ‘regard must be had to its special character as a treaty for the collective enforcement of human

rights and fundamental freedom’99_{and ‘should so far as possible be interpreted in harmony}

92_{Ibid (n 83).}

93_{C McClahlan, ‘The principle of systemic integration and article 31(1)(c) of the Vienna Convention’} (2005) 54 International and Comparative Law Quarterly 279, 282.

94_{Isabelle van Damme, Treaty Interpretation by the WTO Appellate Body (first published 2009, OUP} 1586) 33.

95_{VCLT (n 60) Art. 31} 96_{Ibid. Art 31(3)(c).}

97_{Legal Consequences for States and Continued Presence of South Africa in Namibia (Advisory} Opinion) 1971 available at https://www.icj-cij.org/files/case-related/53/5597.pdf

para 53.

98_{See WTO, United States – Import Prohibition of Certain Shrimp and Shrimp (12 October 1998)} WT/DS58/AB/R paras 127-131.

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with other rules of international law which it forms part’.100_{Hence, such cases signify the} growing importance of harmonious interpretation in various circumstances, the relevant field of international law in this context is the principle of international human rights law in

interpreting the VCDR.101_{This thesis does not address the questions of whether international}

human rights law is subject to special rules of interpretation, or whether its interpretation still

pertains to the general principle of international law.102_{What is relevant here is how a treaty}

should be interpreted in light of other international laws.

The VCDR was a result of an intensely deliberative process, and yet it is subject to interpretation when applied to the facts of different cases. Article 3 of the VCDR is an example of an article that has been subject to interpretation in determining what may constitute an

‘official act’.103_{There are also other articles in the VCDR that leave room for interpretation,}

such as article 31(1)(c), which has been the subject of recent debate for the exception to be interpreted in such a way to consider other fields of international law, such as human rights.

In the recent case of Reyes v. Malki, a Filipino domestic worker was employed by Mr Al-Malki, who was a member of the diplomatic staff of Saudi Arabia in London. During the course of employment, Ms Reyes alleged that she was maltreated by being required to work excessive hours, having no access to proper accommodation, and being prevented from leaving the house or communicating with others. Mr Al-Malki also failed to remunerate Ms Reyes after her employment was terminated. The claimant alleged that the conduct amounted to human trafficking within the meaning of the 2000 Palermo Protocol. The case went first to the Employment Tribunal, but the Court of Appeal claimed the Employment Tribunal did not have jurisdiction because Mr Al-Malki, at the time of the application to the Employment Tribunal, was still entitled to diplomatic immunity and Mrs Al-Malki was entitled to derivative immunity.

The proceedings in the Employment Tribunal and the Court of Appeal concern article 31(1)(c), as Mr Al-Malki, at the time of the appeal, still served his function in the diplomatic mission. In the Court of Appeal, the exception was interpreted narrowly rather than broadly, and therefore it did not cover employment claims, be it an ordinary contract or an employment

100_{Fogarty v United Kingdom App. No. 37112/97 (ECHR, 21 November 2001) para 35.} 101_{See also Ferrini (n 82) para 9.2.}

102_{Christoffersen, “Impact on General Principles of Treaty Interpretation,” in Kamminga &}

Scheinin (eds), The Impact of Human Rights Law on General International Law (OUP, 2009) 37-66. 103_{See Tabion v Mufti (n 33).}

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contract arising from human trafficking.104_{Consequently, diplomatic immunity is rather a}

strong bar to employment disputes.105_{Following the Court of Appeal’s decision, the case went}

to the UK Supreme Court on the same article, but the case was decided on the grounds of article

39(2) because the status of Mr Al-Malki changed.106_{He was no longer serving as a diplomat}

and therefore was not granted immunity. However, the judges were split in their reasoning in an obiter regarding article 31(1)(c) of the VCDR.

The Supreme Court interpreted the meaning and scope of ‘commercial activity’ and ‘official function’ by the methods set out in article 31 of the VCLT. They first discussed the meaning and scope of the official function of a diplomat and referred to article 3 of the VCDR; however, they noted that the activities listed in the article are not exhaustive and the Supreme Court

accepted that hiring a domestic worker falls outside the scope of ‘official function.’107_Before

this case, some jurisdictions also recognised that hiring a private domestic worker is not an official act and therefore the ‘official function’ clause was no longer the difficult point to prove

for cases concerning employment of domestic worker by a diplomat.108

After it has been established that the activity was undertaken outside the scope of the official function, the next element to be analysed is the ‘commercial activity’ of the article 31(1)(c) exception. The Supreme Court was split in their opinion regarding this matter. In the judgement, Lord Sumption and Lord Neuberger – the minority – concluded that article 31(1)(c) should be interpreted narrowly. The underlying issue is essentially the attempt to modify the concept of ‘professional and commercial activity’. Their consideration included the observation of the

travaux préparatoires of the VCDR, limits of interpreting a treaty in light of any relevant

international law rules.109_{The observation of the travaux reaffirmed that the commercial}

activity must be a continuous act. Additionally, they noted that the VCDR was not intended to incorporate future changes, and thus the interpretation of the convention has to be consistent

104_{The Court of Appeal considered two types of contract, ordinary and the one involving human} trafficking. Reyes v Al-Malki [2015] EWCA Civ 32, para 9.

105_{Webb (n 30) p 755.}

106_{Reyes v Al-Malki [2017] UKSC 61.} 107_{Ibid para 23.}

108_{Wokuri v Kassam [2012] EWHC 105,}_{Park v Shin, No. C 01-1800 MMC (N.D. Cal. Aug. 8,}

2001), Abusabib v Taddese Appeal No. UKEAT/0424/11/ZT; See also Lisa Rodgers, ‘The Inviolability of Domestic Agents in the Context of Employment’ in Paul Behrens (ed.) Diplomatic Law in New Millenium (OUP 2017) p 116.

109_{They deemed that interpretation with a linked treaty is not applicable in the case of VCDR. Reyes} (n 104) para 42-44.

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strictly to the draft of the treaty. Nevertheless, the travaux at the same time states that the purpose of the ‘commercial activity’ exception was to provide remedy to aggrieved parties when diplomat violate the law. Therefore, such narrow reading of the exception that bars claims

against a diplomat would be unjustified.110

Lord Wilson, Lord Clarke, and Lady Hale expressed their doubts regarding the strict interpretation of ‘professional and commercial’ activity. The judges aimed for an interpretation that would provide sufficient redress for victims and therefore enable states to comply with their obligations under human rights law. In coming to such a conclusion, the three judges took into consideration both the problem of the exploitation of migrant domestic workers employed by foreign diplomats and the universality of the international community’s determination to combat human trafficking. These two reasons reflect the harmonious interpretation of the VCDR in light of other international laws; considering that there is a pressing need to combat trafficking, reflected in the creation of the Palermo Protocol, the Council of Europe Convention on Action against Trafficking in Human Beings, and the United Kingdom’s Modern Slavery Act.

After this case, hope diminished for the possibility of instituting a proceeding against an incumbent diplomat. Nevertheless, the doubts and extensive discussion offered by the majority a food for thought for future cases, especially concerning the possibility of exercising jurisdiction for an incumbent diplomat. The interest and attitude of international community may shift to prioritising the human rights of domestic workers instead the immunity of diplomat,

and policy makers may follow.111

Two years after the decision, the Employment Tribunal in Ms J Wong v Mr Khalid Basfar ruled that an incumbent diplomat does not have immunity under article 31(1)(c) of the VCDR. The facts of the case are similar to those of Reyes v Al-Malki. The case concerns Ms J Wong, a Filipino national employed by Mr Khalid Basfar, an incumbent diplomat. Ms J Wong’s contract promises eight hours of work a day, 50 hours per week, with 16 hours of free time each day, and one day off work each week and one month off each year. She was to be provided

with sleeping accommodation and paid at the national minimum wage.112_{However, after her}

110_{Rodgers (n 105) p 115.} 111_{Webb (n 30) p 761.}

Challenging the Vienna Convention on Diplomatic Relations: Possibilities of New Obligations to Protect Domestic Workers