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  • Shashwat Singh

Basfar v Wong: A Win for Victims of Modern Slavery or a Fracture in the Law of Diplomatic Immunity?

Introduction

The UK Supreme Court, in a recent judgment, found that diplomats responsible for subjecting their domestic workers to situations of modern slavery will no longer have immunity from the civil jurisdiction of the Courts in the UK. The case concerned a dispute between Ms. Wong, a worker of Filipino nationality, and Mr. Basfar, a Saudi diplomat, who had allegedly trafficked Ms. Wong to the UK and subjected her to inhumane and degrading conditions under his household.


Pursuant to Article 31(1) of the Vienna Convention on Diplomatic Relations (“VCDR”), diplomats are granted immunity from both criminal and civil jurisdictions of the Courts of the receiving State to facilitate the normal exercise of their diplomatic functions. While immunity from criminal jurisdiction is unqualified, civil jurisdiction immunity can be waived under Article 31(1)(c) of the VCDR if it can be established that the diplomat was involved in a commercial activity outside his official functions. This was precisely the dispute that arose before the Court; can the exploitation of a domestic worker by a diplomat be characterized as a commercial activity for the purpose of Article 31(1)(c)? In answering this question in the affirmative, the Court took a liberal stance in interpreting the phrase “commercial activity”. It conveniently avoided the difficult question of human rights abuse of Ms. Wong. At the same time, it also placed the UK in a vulnerable position vis-à-vis other States as diplomatic immunity under international law is based on the principle of reciprocity. This Article analyses this judgment under three sub-heads. First, it explains the threshold of commercial activity exception as set out by the Court. Second, it highlights how the Court missed an opportunity of interpreting diplomatic law in light of the human rights obligations of the UK. Finally, it analyses how setting a lower threshold for the commercial activity exception conflicts with the reciprocity obligation under the VCDR before concluding.


Commercial activity exception

It has been widely established (See Mufti, Al-Malki) in the decisions of domestic Courts and the writings of jurists (See Eileen Denza’s Commentary on VCDR) that the exception criteria of “commercial activity” cannot be construed to include activities that are “incidental to the conduct of the daily life“ of the diplomat in the receiving State. Such activities include purchasing goods for personal consumption or purchasing educational or domestic services privately [para 34]. The Court accepted this view and Stated that a private contractual relationship between a diplomat and his servant is incidental to the conduct of daily life of a diplomat and his family, and therefore, fell within the rationale from immunity of the civil jurisdiction of the receiving State [para 37].


However, the Court found that the same is not true when a person is kept in a situation of domestic servitude, forced labour, and human trafficking (which was grouped under the head of ‘modern slavery’). Since modern slavery included a high degree of control over the physical labour of the worker and exploitation of such control for personal profit, it would fall within the commercial activity exception [para 51].


Leapfrogging the human rights argument

It was contested by an intervening party (‘United Nations Special Rapporteur on Trafficking in Persons’) that Article 31(1)(c) of the VCDR should be read in a manner to achieve consistency with UK’s human rights obligations. However, the Court decided that such an analysis would be devoid of any purpose because the fact that an activity is unlawful does not mean that it is commercial in nature.


This approach appears to be problematic for two reasons. First, the Court itself undertook a detailed analysis of how Ms. Wong’s dehumanization amounted to a situation of modern slavery within the framework of Palermo Protocol. In doing so, it also relied on UK’s other obligations under international law for example, Article 4(a) of the Council of Europe Anti-Trafficking Convention on Action against Trafficking in Human Beings which defines ‘human trafficking’. This highlights that a situation of domestic servitude in a diplomat’s residence has a direct bearing on the issue of human rights, even when the claim brought before the Court does not directly relate to that question.


Second, the alleged facts of the case (yet to be established by the Employment Tribunal) are fairly simple. Ms. Wong managed to escape after two years of employment at Mr. Basfar’s household in the UK. Ascertainment of facts may not necessarily be possible in situations of prolonged confinement of a worker especially when the diplomat is transferred to different jurisdictions and the worker accompanies him.


Contrarily, a recourse to human rights law would obligate States to protect victims of domestic servitude and slavery from further abuse by taking all possible judicial and administrative measures (Article 4 of the European Convention on Human Rights). It might be argued that human rights law and the law of diplomatic immunity cannot be reconciled because the law of immunities is procedural in nature (ICJ Jurisdictional Immunities Case). This does not, however, mean that the two frameworks cannot complement each other to strike a balance between the “aim served by immunity and a competing interest in limiting opportunity for immunity to be abused” [para 102].


The World Court, albeit, has never received the opportunity to set a compromissory line between the two divergent norms of diplomatic immunity and human rights. The Tehran Hostages Case and the Immunities and Criminal Proceedings Case are both limited as they only expound on the question of diplomatic privileges accorded to diplomats and offer no analysis on the human rights question. This does not mean that the dictum laid down in the Jurisdictional Immunities Case has no relevance. The preamble to the VCDR is explicit in stating that the purpose of [diplomatic] privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions of representing States. Clearly, the efficient performance of diplomatic function does not entail that a diplomat be granted the liberty to confine a worker in a situation of domestic servitude.


On the other hand, human rights instruments offer sufficient safeguards to victims of modern slavery through their respective complaint mechanisms. This is especially important because States are unlikely to waive their diplomats’ immunity under Article 32 of the VCDR to allow the receiving State to initiate civil proceedings against diplomats on mere suspicion of their involvement in domestic abuse. Additionally, under Article 32(2), the waiver from the sending States needs to be ‘express’ and not merely an ‘implied’ waiver. This becomes abundantly clear from the draft Articles of the VCDR. States are unwilling to surrender their diplomats to the civil jurisdiction of receiving States until the threshold of Article 31(1)(c) is met. Further, all domestic workers may not be in a condition, and may even find it difficult, to file a claim for damages from the diplomat in his home country. Under such circumstances, granting protection under the human rights framework to workers who have escaped domestic servitude becomes all the more important.


Reciprocity under the VCDR

Lord Hamblen and Lady Rose in their dissenting opinion pointed out that unilaterally widening the scope of “commercial activity exception” could invite formal or informal retaliatory measures on UK’s diplomats overseas. And this fear appears to be well-founded given that one of the fundamental principles of VCDR is reciprocity. Every receiving State is also a sending State under international law, and therefore, States ascribe great weight to rules protecting the immunity of diplomats.



Conclusion

An objective analysis of Article 31(1)(c) of the VCDR suggests that Statearties to the VCDR have refrained from accepting a broad interpretation of the “commercial activity exception” and instead accorded greater importance to the norm of diplomatic immunity. In Tabion vs. Mufti, the US Court of Appeals held that domestic services cannot be included within the scope of commercial activity exception as such services are incident to daily life of the diplomat. Again in Reyes vs. Al-Malki, the UK Supreme Court held that merely because a diplomat derived economic benefit by hiring a domestic worker at a price below the market rate did not mean that the activity fell within the commercial activity exception. Similarly, the travaux preparatoires to the VCDR contains no discussion of the trafficking of domestic workers as a basis to broaden the scope of Article 31(1)(c). Therefore, only an evolutionary and flexible approach to interpret the phrase “commercial activity” can justify compromising with the norm of protection of diplomatic immunity.

For the reasons already highlighted above, this is the first instance where a State’s Apex Court has held that diplomats cannot abuse their diplomatic immunity to control the physical labour of a worker in an extensive manner to place her in a situation of domestic servitude. This runs counter to the argument that diplomatic immunity should always be protected and can only be waived in matters expressly provided by the VCDR. As of now, it is awaited whether or not the facts alleged by Ms. Wong are established by the Employment Tribunal and how other States, especially Saudi Arabia, reacts to this judgment.

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