Exploitation of embassy employees : the cleaning lady and the accountant as limits of immunity

Their cars are shiny, their residences are swanky. Behind the dignified facade of embassies and diplomatic households, however, there are always scandals about the exploitation of employees. The courts seem powerless because foreign diplomats enjoy immunity. But there is new hope not only for an Indonesian woman in Berlin after a decision of the ECHR.

A few days ago, the newspapers reported the case of an Indonesian woman who worked in Berlin as a domestic helper for a Saudi diplomat. For her work – almost around the clock and seven days a week – she received no pay, instead she was allegedly humiliated and mistreated.

However, the Berlin Labor Court dismissed their claim for back pay and compensation for pain and suffering as inadmissible; the diplomat sued enjoys immunity from German jurisdiction because of his status.

This story is not an isolated case. Back in February of this year, the French Conseil d’Etat had to rule on a very similar case of exploitation of an Indonesian domestic helper. And just last Wednesday, the European Court of Human Rights (ECHR) addressed the question of whether French courts were allowed to dismiss as inadmissible the complaint of a Kuwaiti embassy employee against his summary dismissal, citing sovereign immunity (Sabeh El Leil v. France, Urt. v. 29.06.2011, Az. 34869/05).

All of these cases are based on the question of how far the diplomats or states sued are entitled to immunity.

Diplomats enjoy absolute immunity

International law grants immunity from the jurisdiction of other countries to states and certain persons in the service of those states. This is justified on the basis of the principle of sovereign equality of states and the principle "par in parem non habet imperium" already known from Roman law – Equals have no power over equals.

Absolute immunity for the duration of their mission is also enjoyed by diplomats. The inviolability of ambassadors and envoys was already recognized centuries ago and developed into a principle of customary international law. Meanwhile, the Vienna Convention on Diplomatic Relations (Convention on the Law of Diplomacy) has codified it, the diplomat enjoys immunity from jurisdiction under Art. 31 of the Convention immunity from both the criminal and, with three exceptions, the civil and administrative jurisdiction of the receiving state.

Immunity, however, is not without limits. States do not have to answer for sovereign acts, but they can be prosecuted for economic acts. Until now, however, it was disputed what could be classified as sovereign and what as economic or private action.

The ECtHR draws boundaries: no immunity for employment contracts

Thus, in cases of exploitation or unfair treatment of embassy employees, states argued that embassies were performing sovereign functions. Thus, they would be free to decide on the working conditions of their employees without control by the receiving state.

This argument could now come to an end, because the Strasbourg judges did not share this view. In Sabeh El Leil v. France, the Court ruled that there was a violation of the right to a fair trial under Art. 6 para. 1 of the European Convention on Human Rights (ECHR) may constitute immunity if a court dismisses an employment claim against the state in whose embassy the plaintiff worked, relying on sovereign immunity.

The ECtHR justifies its decision on the basis that international law has evolved, relying on Art. 11 of the Convention on Immunity of States and their Property from Jurisdiction (Convention on State Immunity). The provision states that a state cannot invoke its immunity in employment disputes as long as the employee was not entrusted with the exercise of sovereign authority. Although the Convention on State Immunity is not in force, France has already signed it (although it has not yet ratified it). Moreover, the Convention on State Immunities only represents a codification of customary international law, according to the Strasbourg judges.

Thus, if the plaintiff employee works, for example, as a driver, cleaner or – like the plaintiff in the case on which the ECtHR had to rule – accountant, it can now no longer automatically be assumed that he/she is entrusted with the performance of sovereign duties. In such cases, sovereign immunity is not applicable and lawsuits based on the employment relationship are therefore admissible.

The problem: Where are the limits for diplomats??

Those who now hope for spontaneous justice for the downtrodden domestic servants of diplomats, however, should be put on the brakes. The limitations imposed by the Court of Human Rights relate only to sovereign immunity. They therefore apply to persons whose employer is the state. Problematic – and not yet decided by the ECtHR – is still the question whether these principles can be applied to cases where the employer is not the embassy but a diplomat personally.

It is true that Art. 2 I b) iv) of the Convention on the Immunities of States, that the term "State" means the State of which the diplomat is a national also called representatives of the state, who "in this capacity", i.e, thus as representatives of the state – sovereign – act. If one would see in diplomats state representatives in the sense of the Art. 2, one could argue with the ECtHR that the diplomat is entitled to protection because of Art. 11 of the said Convention may not invoke its immunity in labor cases. However, this interpretation would be in conflict with Art. 31 of the Convention on the Law of Diplomacy, which grants diplomats immunity from civil and administrative jurisdiction except for actions in rem relating to immovable property, actions in probate matters, and actions relating to a commercial activity.

The employment of a housekeeper does not fall within the exceptions mentioned above. The Berlin Labor Court also referred to this provision in the case of the Indonesian housekeeper and dismissed the lawsuit with reference to the diplomatic immunity of the defendant.

Perhaps one solution: The receiving state must be liable

Persons employed by diplomats, nevertheless, need not be entirely unprotected. This is shown by the decision of the French Conseil d’Etat of February 2011. This case also involved an Indonesian domestic helper employed by a diplomat from Oman. The latter paid her $200 a month for her work – four times what she earned in Indonesia, though less than the French minimum wage.

The labor courts ordered the diplomat to pay the difference to the minimum wage, but the judgment could not be enforced due to diplomatic immunity. Thereupon the housekeeper sued the French state and got right from the Conseil d’Etat – the state has to compensate the citizens for damages they suffer during the application of international treaties.

The case of the Indonesian housekeeper in Berlin offers a good opportunity to question the scope of diplomatic immunity in exploitative employment contracts in German courts as well. The judgments of the ECtHR and the Conseil d’Etat make it clear that employees of embassies and diplomats in the receiving state do not have to be completely defenceless and offer two interesting solutions. How the Berlin Labor Court, which will deal with the appeal, will decide is still completely open. In any case, it would be desirable to grant employees in the household of a diplomat the same level of protection as embassy employees enjoy according to the ruling of the ECtHR.

The author Przemyslaw Nick Roguski, Mag. Iur. is a research associate at the Chair of Public Law, International and European Law, International Business Law at the Johannes Gutenberg University Mainz.

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