Diplomatic immunity raises questions for Government

Three Filipina women, Jennifer Villaranda, Myra Calderon and Laylanie Laporga, were recently awarded €80,000 each by the Employment Appeals Tribunal for unfair dismissal after enduring working conditions at the home of the ambassador of the United Arab Emirates in Dublin which fell well short of acceptable national standards. They said that they were treated "like slaves". They worked for as little as €2 per hour.

This remarkable judgment came only after an unsuccessful Rights Commissioner’s hearing, at which the ambassador and his wife invoked diplomatic immunity and the claimants lost.

The Vienna Convention on Diplomatic Relations governs diplomatic missions and provides that “ the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.”

The private residence of a diplomatic agent enjoys a similar inviolability.

Article 31 of the convention provides for diplomatic immunity “from the criminal jurisdiction of the receiving state” and “from its civil and administrative jurisdiction” with three important exceptions, being an action relating to private immovable property, succession where the diplomatic agent is an executor, administrator, heir or legatee as a private person, or an “action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions”.

It seems somewhat unusual in this day and age that a defendant would invoke the doctrine of jure imperii and claim to be immune from a commercial or civil suit under the rule of international law that sovereign states cannot be amenable to the laws of other states.

In unrelated proceedings another state did seek to do just that last week. The High Court dismissed a motion by the Kingdom of Spain claiming sovereign immunity for a debt collection case last Monday. Spain claimed that as a sovereign state it was not amenable to being sued in the Irish courts.

The doctrine of sovereign immunity protects states from suit for governmental or sovereign activities. At one point the rule was absolute, but the modern law recognises an exception for trading or commercial activity of a private law character. A state which engages in such matters is not entitled to rely on sovereign immunity.

Engineering services

The plaintiff, NJ O’Gorman & Associates, claims to be entitled to fees for engineering services provided for the refurbishment of the Spanish consulate on Molesworth Street, Dublin.

Spain denied that the money was due, and also brought an application to have the case dismissed because as a sovereign state it may not be sued at all.

Doireann O’Mahony BL, for the plaintiff, submitted the refurbishment of an office is a normal commercial transaction. She submitted that it does not have the indicia of a governmental or sovereign activity that would attract the immunity.

The president of the High Court, Mr Justice Nicholas Kearns, referred to the case of McElhinney v. Williams [1995]3 I.R. 382 in which the Supreme Court held that the actions of British soldiers in Northern Ireland was within the sphere of sovereign activity. The Supreme Court in that case affirmed that sovereign immunity does not apply to normal commercial activity engaged in by states.

Kearns accepted Ms O’Mahony’s submissions and dismissed the Kingdom of Spain’s motion with costs.

In June of this year the US Supreme Court held that despite the Foreign Sovereign Immunities Act in the USA investigators could conduct post-judgment discovery into the assets of Argentina in the case of Republic of Argentina v. NML Capital Ltd. 573 US (2014).

The situation regarding foreign sovereign employees in the US has been the subject of litigation with mixed results. The nature of the employment is the key factor. Immunity is not guaranteed. Article 43(1) of the Vienna Convention, for example, provides that “consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving state in respect of acts performed in the exercise of consular functions”. The Vienna Convention includes 12 enumerated consular functions and one “catch-all” provision, covering “functions entrusted to a consular post”. Hiring purely domestic staff does not qualify as a legitimate “consular function,” as found by the Ninth Federal Circuit Court in Park v. Shin 313 F. 3d 1138 (9th Cir. 2002).

If sovereign immunity were to be absolute then diplomatic missions would not be subject to the national minimum wage, would have no liability for personal injuries in the event of an accident, such as a car crash, for example, and would not be liable on foot of a contract.

As diplomatic missions are guests of the receiving state it is a matter for government to consider whether the Constitution requires state protection in such cases. If a diplomatic agent were to infringe a constitutional right, such as the right to bodily integrity, how should the state vindicate this right?

Public interest

The attorney general is “guardian of the rule of law” and must uphold the Constitution in the public interest. Therefore, in enforcing any judgment it may become a matter for the receiving state to either intervene or take responsibility for any loss arising to vindicate the legal rights to the non-diplomatic agent litigants.

Article 13 of the European Convention on Human rights and Fundamental Freedoms lends support for this view also as everyone is entitled to “an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”. Therefore, must the state bear ultimate responsibility to the individual where diplomatic immunity renders a judgment ineffective?

These and other questions remain to be answered in Ireland, and we watch these two fascinating cases with great interest. Thomas Coughlan is a solicitor practising in immigration and human rights in Cork.