Christopher Braganza reports on a difficult legal landscape for diplomatic missions

Article 41(1) of the Vienna Convention requires all diplomats to “respect the laws and regulations of the receiving State.” This is the counterpart responsibility to the immunities granted to States and to diplomats in person. In fact, Article 41(1) codifies the ancient diplomatic practice of voluntary obedience to the host State’s laws. Of course, that obedience includes the courtesy of abiding by local employment practices, whether local staff are engaged by the mission or by individual diplomats themselves.

Traditionally, any disputes with local staff, or with private servants at the diplomatic residence, have been dealt with in a number of ways. Often, a resolution is reached voluntarily, with no waiver of State or an individual diplomat’s immunity. Serious cases may result in an individual diplomat being recalled by the home state or a waiver being granted by the diplomat’s mission. In the most serious cases, the Foreign Ministry of the host country declares an individual persona non grata.

In short, the usual mechanism to resolve any disputes was through diplomatic channels and not through the courts. However, two recent cases in the English Court of Appeal have shaken this consensus.

What has been decided? The cases are complex, involving the interplay between international, European and domestic English law. They impact both State and diplomatic immunity.

Benkharbouche and State Immunity

In the first case, Benkharbouche, the Court has held that the extensive immunity missions enjoy under the UK State Immunity Act is not compatible with the European Convention on Human Rights.

The legal consequences are mixed:

1. In relation to some claims (for example, the UK right against unfair dismissal from employment), the UK Parliament will be obliged to change the law at some point in the future, but this does not affect missions now.

2. However, where the employees are trying to enforce a right which stems from EU law (most UK employment law falls within this category, for example rights to protection from discrimination), local staff are (in principle) now free to bring claims against the mission without the need for further intervention by Parliament.

This is obviously a concern for diplomatic missions in London.

Reyes and Diplomatic Immunity

On the other hand, in the second case, Reyes, the Court has confirmed the traditional position: that a diplomat’s personal immunity is to be upheld in a claim by a domestic servant. This is a pleasing outcome for individual diplomats.

The Court did, however, permit valid service of legal documentation by post on the diplomat’s private residence, even in light of Article 30 of the Vienna Convention (which states that the private residence of a diplomat enjoys the same inviolability as the premises of the Mission itself).

Aside from these legal developments, our understanding is that the convention that any disputes with local staff or private servants would be dealt with informally is weakening considerably.  In addition, the publicity generated by these cases has been considerable. Staff with genuine grievances now
have a clear legal path where informal routes fail. Among the many local staff providing excellent service to London’s missions, there may inevitably be a few who are counting on missions’ understandable reluctance to incur the embarrassment of having to defend proceedings in the courts of a foreign State.

What next? What should diplomatic missions do in light of these developments? Regrettably, it seems as if London’s missions need to be more aware and prepared for legal problems. We recommend three things:

1. First and foremost, ensure that contracts with local staff are worded to ensure the best possible chance of remaining within the newly restricted scope of immunity. This will include making explicit the proximity to, and involvement in, any national security issues or to highly confidential information of the sending State. We also recommend further changes in relation to notice periods and other key terms.

2. Second, consider putting in place a mechanism for service of proceedings other than on the mission or the diplomat’s private residence (for example, on external representatives). This will ensure that, crucially, no response is made that might constitute participation in the proceedings.

3. Third and finally, the Corps as a whole might consider whether voluntary submission to a confidential, independent diplomatic arbitration mechanism might serve as a quicker and more discreet way of resolving disputes as they arise. This would have the benefit of saving any diplomatic or political embarrassment to individual missions or diplomats, and give local staff the benefit of an independent and impartial mechanism for redress. A sufficiently independent system should be compliant with the requirements of the European Convention on Human Rights. I am personally keen to explore this possibility further with any interested parties.

The FCO Protocol Directorate has issued a Note informing missions of these developments. The Note indicates that further guidance will be issued once a final appeal has been concluded. I understand that permission for a further appeal to the UK Supreme Court has been granted, at least in the Benkharbouche case. It is likely, therefore, that it may be 2016 before we have the result of any appeal.

In the meantime, diplomatic missions should be aware of the current, more difficult, legal environment.