Diplomatic Immunity

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Diplomatic Immunity, Modern Slavery and the “Commercial Activity” Exception:  The UK Supreme Court in Basfar v Wong

July 11, 2022

Can a diplomat assert their immunity from suit in a claim for breach of employment rights brought by a domestic servant working for them in their residence, in circumstances in which that diplomat has trafficked that servant into the United Kingdom and forced that servant to work in conditions of modern slavery? In the landmark decision of Basfar v Wong [2022] UKSC 20 handed down on 6 July 2022, the UK Supreme Court, by a majority of three to two, has answered that question in the negative. The Supreme Court held that the diplomat in question would not have immunity from the civil jurisdiction of the courts of the United Kingdom as such a claim falls within the “commercial activity” exception found within Article 31(1)(c) of the 1961 Vienna Convention on Diplomatic Relations (“VCDR”).  According to the Court,  while employment of a domestic worker did not, in itself, ordinarily constitute the exercise of a “commercial activity” by a diplomatic agent, employment that is a form of modern slavery, whether that was forced labour,…

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The Waiver of Immunity of Catalan MEPs: Reintroducing Politics in EU Extradition Law

March 11, 2021

On 8 March 2021, the European Parliament voted to lift the immunity of Catalan MEPs, Puigdemont, Comin and Ponsati. Although this long-lasting saga is far from being over as Puigdemont already announced his intention to bring the case before the CJEU on procedural grounds, this decision would theoretically enable Spanish authorities to resume the European arrest…

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Diplomats or fonctionnaires? The Contested Status of the EU’s ‘Embassy’ in the UK

March 1, 2021

May the European Union have a full diplomacy, on a par with States? This issue has been problematic since 1954, when the European Coal and Steel Community opened its first delegation – in London. Already in 1961, Pescatore wrote that ‘it is clear why the use of the term “diplomatic” to designate the Community’s missions in third…

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Diplomatic Immunity Trumps Children’s Rights, the English High Court Reluctantly Concludes: A Comment on A Local Authority v AG [2020] EWFC 18

April 6, 2020

This case concerned proceedings brought by a local authority to protect three children, specifically seeking a care order under Part IV of the Children Act 1989. There were credible allegations that the children had been physically abused by both their parents. On the evidence before him, Mostyn J thought it ‘extremely unlikely’ that the parents ‘would be…

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Functional immunity of foreign State officials in respect of international crimes before the Hague District Court: A regressive interpretation of progressive international law

March 2, 2020

On 29 January 2020, the District Court of The Hague rendered a possibly momentous judgment that may reverse an international trend to deny functional immunity to State officials in respect of allegations of international crimes. The reader may be aware that the International Law Commission (ILC) has acknowledged this trend in Article 7 of its Draft Articles…

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