Demanding accountability where accountability is due: a functional necessity approach to diplomatic immunity under the Vienna Convention.

Author:Bergmar, Nina Maja


This Note addresses the inability of domestic workers to seek redress for exploitation by diplomat employers. In examining the legal quagmire facing these workers, this Note highlights a departure by courts from the functional necessity theory underlying the Vienna Convention. Courts now rely wholly on the U.S. State Department's interpretation of the scope of diplomatic immunity, communicated through "Statements of Interest. " The significant deference given to such statements has had dire consequences for exploited victims. Under a functional necessity approach, domestic workers are able to demand redress, as exploitation is a private act--i.e., not in furtherance of the diplomatic mission--undertaken for personal gain. In contrast, the State Department's broad grant of immunity to diplomats has effectively eroded any exception to immunity hitherto relied upon by plaintiffs. This Note questions the delegation of interpretive functions to the Executive Branch and proposes a return to restrictive immunity, as postulated by functional necessity theory.

TABLE OF CONTENTS I. INTRODUCTION II. THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS A. Theoretical Grounds for Diplomatic Immunity III. THE ISSUE OF ACCOUNTABILITY A. Abuse of Diplomatic Immunity and Cost-Benefit Analysis B. The Vulnerability of Domestic Workers Employed by Diplomats C. The Inability of Domestic Workers to Seek Redress IV. CONSTRUING THE COMMERCIAL ACTIVITY EXCEPTION A. Judicial Deference to Executive Statements of Interest B. Executive Fear of Reciprocity V. LIMITATIONS OF PREVIOUS ATTEMPTS TO RETHINK DIPLOMATIC IMMUNITY A. Waiver of Immunity B. Forced Isolation of Noncomplying Nations C. Creation of a Claims Fund D. Amending the Convention E. Adopting a Restrictive Interpretation of the Text VI. SOLUTION A. Facilitating the Transition to a Functional Necessity Approach 1. The Executive: Reevaluating Costs and Benefits 2. The Judiciary: Reexamining the Text of the Commercial Activity Exception i. Deducing Intent from the Literal Language ii. Ordinary Meaning iii. Legislative History 3. The Legislature: Clarifying the Role of the Judiciary VII. CONCLUSION I. INTRODUCTION

Over the past decade, publicized instances of domestic workers alleging exploitation and abuse by diplomat employers have shed light on a hidden form of forced servitude. (1) In the typical narrative, domestic workers are induced by fraudulent employment contracts and false promises to accompany diplomat families to the United States. (2) Upon arrival, they discover that they are paid less than minimum wage; are forced to endure inhumane work hours; and become subjected to verbal, physical, and psychological abuse. (3) Domestic workers bringing actions against diplomat employers have repeatedly had their cases dismissed for lack of subject-matter jurisdiction. (4) In concluding that diplomatic immunity shields the employer from such suits, judges have relied almost exclusively on policy statements submitted by the State Department in the form of "Statements of Interest." (5) Hence, few courts have endeavored to scrutinize the exact contours of the Vienna Convention on Diplomatic Relations (VCDR) and its enumerated exceptions to diplomatic immunity.

Cases involving diplomats likely constitute a small percentage of all domestic worker abuse cases; (6) however, they raise complex legal questions that strike at the core of American attitudes toward the VCDR. To contextualize the dilemma facing domestic workers of diplomat families, Part II provides an overview of the VCDR, including its relevant provisions, stated purpose, and theoretical basis. Part III then discusses abuses of diplomatic privilege and exploitation of domestic workers. Part IV addresses a core obstacle to redress: courts' narrow construction of the commercial activity exception to diplomatic immunity. This Part pays close attention to the interaction of the Judiciary and the Executive in delineating the scope of diplomatic immunity. Part V evaluates the limits of previous attempts to rethink diplomatic immunity to better accommodate requests for redress. Finally, Part VI advocates adoption of a functional necessity approach to diplomatic immunity, which would limit the issue of unchecked exploitation. This Part also suggests how each branch of government may facilitate and accommodate such a shift.


    In 1969, the United States ratified the VCDR, (7) which codified longstanding diplomatic and consular practices with the purpose of maintaining the "sovereign equality of States [,] ... international peace and security, and the promotion of friendly relations among nations." (8) The VCDR, which is a non self-executing treaty, gained legal force in the United States through the enactment of the Diplomatic Relations Act of 1978, (9) in which Congress "established the Vienna Convention as the sole U.S. law governing diplomatic privileges and immunities." (10) The VCDR states in relevant part that a "diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State ... [and] its civil and administrative jurisdiction." (11) As such, diplomatic agents or members of their immediate family may not be arrested or detained; may not have their residences entered and searched; may not be subpoenaed as witnesses; and may not be prosecuted by the nation in which they are serving their country. (12) The VCDR is premised on the belief that an international convention on diplomatic relations, privileges, and immunities fosters friendly relations among nations, "irrespective of their differing constitutional and social systems." (13) While crucial to diplomatic and foreign relations, the YCDR recognizes certain exceptions. Article 31(1) outlines three exceptions to the immunity afforded to diplomats (and their families (14)) in the receiving state:

    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, except in the case of:

    (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. (15)

    The third exception, hereinafter referred to as the "commercial activity exception," (16) has proven controversial due to its ambiguous language. (17) The VCDR provides no definition of what constitutes "commercial activity," nor does the exception itself include any restricting qualifiers limiting the scope of the term. (18) As a result, this exception has generated litigation over the nature of activities undertaken by diplomats outside of their official duties. (19)

    Aside from the enumerated exceptions, there are only limited opportunities for circumventing immunity. Perhaps the most effective method of avoiding immunity is set forth in Article 32 of the VCDR. (20) Article 32 builds on the previously listed rights of diplomats to immunity from arrest, detention, and civil and criminal prosecution (21) but asserts that the sending country may waive this immunity at any time. (22) Yet, states have proven exceedingly unwilling to grant such waivers, even in cases where the cost of doing so would be minimal. (23) As a last resort, a receiving state may assert a persona non grata claim, as stipulated in Article 9. (24) Under this provision, the receiving state may at any point and for any reason notify the sending state that the diplomat at issue is a persona non grata, or unwanted person. (25) The sending state must then either recall the diplomat or terminate his or her duties in the host state. (26) Although a persona non grata procedure appears simple, it is rarely used in practice. Fear of reciprocity (27) and disrupted diplomatic relationships weigh in favor of simply absorbing the costs of misdeeds. (28)

    Due to the infrequency with which a country agrees to waive immunity and the significant costs involved in persona non grata procedures, debates over diplomatic immunity have generally focused on the application and permissible scope of the three exceptions enumerated in Article 32. (29) This Note will focus on the third of these exceptions: the commercial activity exception.

    1. Theoretical Grounds for Diplomatic Immunity

    Three theories seek to justify diplomatic immunity: representative of the sovereign, extraterritoriality, and functional necessity. (30) The early theory of representative of the sovereign, also known as personal representation, holds that "the representative's privileges are similar to those of the sovereign herself, and an insult to the ambassador is an insult to the dignity of the sovereign." (31) This theory has three major flaws. (32) First, granting the foreign envoy the same degree of immunity as the sending state would "place the individual diplomat above the law of the host state." (33) Second, due to the evolution of popular rule, it is not always clear whom the diplomat represents. (34) Third, "the theory extends no basis for protecting diplomats from the consequences of their private actions." (35) Consequently, the theory has been largely discredited. (36) The second theory, the theory of extraterritoriality, assumes that a diplomat is always on the soil of the sending country. (37) As a result, a diplomat is not subject to the receiving country's laws. (38) The role of extraterritoriality theory in today's discourse is not entirely clear. While some argue that the codification of the VCDR marked the official rejection of extraterritoriality, (39)...

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