“an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
“Human agents have a corporeal vulnerability not shared by the incorporeal state which sent them.”
“Day-to-day living services such as dry cleaning or domestic help were not meant to be treated as outside a diplomat’s official functions. Because these services are incidental to daily life, diplomats are to be immune from disputes arising out of them.”
“A diplomatic agent shall not in the receiving state practise for personal profit any professional or commercial activity.”
“Migrant domestic workers employed by diplomats are a particular vulnerable group. Firstly, their visa status typically depends on continued employment by the diplomat and they are therefore not free to change employers in case of exploitation. Secondly, diplomatic immunities and privileges shield diplomats from the enforcement of national legislation.”
“domestic services create an economic value added, and therefore the savings made by the employer on expenditures count as profits.”
“The third exception arises in the case of proceedings relating to a professional or commercial activity exercised by the diplomatic agent outside his official functions. It was urged that activities of these kinds are normally wholly inconsistent with the position of a diplomatic agent, and that one possible consequence of his engaging in them might be that he would be declared persona non grata. Nevertheless, such cases may occur and should be provided for, and if they do occur the persons with whom the diplomatic agent has had commercial or professional relations cannot be deprived of their ordinary remedies.”
“The fact that an employer derives economic benefit from paying his employee wages that are lower than the market rate does not mean that he is engaging in a commercial activity.”
“where the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is ‘of continuing duration’, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning.”
“a construct to be derived from the articulation of the ‘means of interpretation admissible’ in the process of interpretation - and not a separately identifiable factor.”
“In the modern context, the circumstances of the enslaved person are crucial to identifying what practices constitute slavery, including: (i) the degree of restriction of the individual’s inherent right to freedom of movement; (ii) the degree of control of the individual’s personal belongings; and (iii) the existence of informed consent and a full understanding of the nature of the relationship between the parties.”
“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” “Exploitation” is stated to include: “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;”
“Harbouring is not an everyday concept but I accept that it includes accommodating or holding a person at the place of exploitation or at a place prior to the exploitation.” (Emphasis added)
“implies close surveillance of the activities of victims, whose movements are often circumscribed. It involves the use of violence and threats against victims, who live and work under poor conditions.”
“if Gallagher’s expanded vision of the definition of human trafficking is followed, then all the exploitative practices included in the ‘purpose’ element, including slavery, servitude and forced labour, have to be relabelled as human trafficking, based on her interpretation of ‘harbouring’ and ‘receipt’. The result would be complete convergence between the concepts of trafficking, and of slavery, servitude and forced labour, which would defeat the purpose for which these different concepts were introduced in international law.”
“It is unnecessary and unhelpful, for the resolution of the issues in the present case, to seek to draw boundaries between slavery and cognate concepts such as servitude, peonage, forced labour, or debt bondage. … [These] concepts are not all mutually exclusive. Those who engage in the traffic in human beings are unlikely to be so obliging as to arrange their practices to conform to some convenient taxonomy.”
“29. I cannot accept the broad interpretation of ‘commercial activity’ for which Mr Otty [appearing for Ms Reyes] contends. It has little support in the jurisprudence or the commentaries. It would frustrate the principle of reciprocity and importance of diplomatic immunity. It would mean that there was no diplomatic immunity in respect of any contract made between a diplomatic agent and another person for the supply by that other person of goods or services for profit. Moreover, as Sir Daniel Bethlehem QC points out, effect has also to be given to the important words ‘outside his official functions’ in article 31(1)(c) of the 1961 Convention. There is no immunity in the case of an action relating to ‘any professional or commercial activity exercised … outside his official functions’. The employment of a domestic servant at a mission is an activity which is incidental to the daily life of a diplomatic agent and enables him to perform his official functions. 30. I conclude, therefore, that article 31(1)(c) does not deprive a diplomatic agent of immunity from civil suit by a person employed at his official residence to carry out domestic services where the contract is not infected by any allegation of trafficking. The next question is whether a contract of employment which is otherwise not a commercial activity is rendered a commercial activity because the employee has been the subject of trafficking.”
“21(6) A wider scope for exception (c) would expose diplomatic agents in post in the United Kingdom (and potentially British diplomatic agents abroad) to local proceedings not only in respect of their employment of domestic servants but in respect of any transaction in the receiving state for money or money’s worth, save perhaps for those which were isolated or uncharacteristic. The substantial effect would be to limit the immunity to acts done in the exercise of the diplomat’s official functions, even in the case of a diplomat in post. The immunity in respect of non-official acts would mean very little, for every purchase that a diplomat might make in the course of his daily life from a business carried on by someone else would be a commercial activity exercised by the diplomat for the purposes of article 31(1)(c). This would be contrary to the carefully constructed scheme of the Convention for different categories of protected person.”
“The second point which can be made is that the Convention has proved remarkably resilient to external attacks. In the United Kingdom and in the United States in particular, the effect of a small number of appalling or bizarre instances of abuse of diplomatic immunity during the 1980s, and of widespread resentment of the flouting by diplomats and other privileged persons of parking restrictions, was a cry for revision of the Convention or for new ways of combating perceived abuse. It would indeed have been possible, had the political will been generally present, to have achieved some reduction of the protection given, in particular, to the diplomatic bag. But Western governments were too well aware of the overall need for protection of their diplomats and their missions abroad against terrorism, mob violence, and intrusive harassment from unfriendly States to dispense with the essential armour provided by the Vienna Convention … The Convention was left intact and in truth strengthened by the systematic re-examination it had undergone.”
“Although the purpose of stating uniform rules governing diplomatic relations was ‘to ensure the efficient performance of the functions of diplomatic missions as representing states’, this is relevant only to explain why the rules laid down in the Convention are as they are. The ambit of each immunity is defined by reference to criteria stated in the articles, which apply generally and to all state parties. The recital does not justify looking at each application of the rules to see whether on the facts of the particular case the recognition of the defendant’s immunity would or would not impede the efficient performance of the diplomatic functions of the mission.”
“… when agreeing to the terms of the 1961 Convention, the parties would have rejected any suggestion that the proceedings brought by Ms Reyes related to any commercial activity exercised by Mr Al-Malki (para 67).”
“The expression does not express a general value whose content may vary over time. It is a fixed criterion for categorising the facts, whose meaning and effect was extensively discussed during the drafting and negotiation of the text. There is no reason to suppose that it refers today to anything other than what it referred to in 1961.”
“115. … The parties to the VCDR would never have agreed to such a provision. The VCDR, codifying customary international law, after extensive negotiations and consideration, leading to its specific text governing international diplomatic relations, cannot have been superseded in any part by a Convention dealing with the rights of children. Still more difficult is it to conclude that that has been achieved in so sensitive an area, where the very purpose is to send diplomats and their families abroad safely, and entrust them to the compliance with the VCDR by the receiving state, without so much as a word in the text of the later to the problem of diplomats’ children. It is not possible to conclude that the UNCRC should be interpreted as disturbing the VCDR, heedless of the real harm that would risk doing, and doing to the children of diplomats abroad, as the UNCRC would be doing were the Applicant right. None of the Comments, for what they are worth, suggested that either.”
“45. To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to state immunity, entitles or perhaps requires states to assume civil jurisdiction over other states in cases in which torture is alleged. Such a rule may be desirable and, since international law changes, may have developed. But … it is not entailed by the prohibition of torture.”
“Here, as in most cases invoking sovereign immunity, there may appear to be some unfairness to the person against whom the invocation occurs. But it must be remembered that the outcome merely reflects policy choices already made. Policymakers in Congress and the Executive Branch clearly have believed that diplomatic immunity not only ensures the efficient functioning of diplomatic missions in foreign states, but fosters goodwill and enhances relations among nations. Thus, they have determined that apparent inequity to a private individual is outweighed by the great injury to the public that would arise from permitting suit against the entity or its agents calling for application of immunity.”
“The Court, moreover, is mindful that the [Convention] is not a unilateral document; what may prevent parties from obtaining redress in our courts also serves to protect American diplomats and their families from what we might consider as legal abuses overseas. This balancing is a policy decision this Court should not challenge.”
“The State’s immunity from jurisdiction contained in the Vienna Convention on Diplomatic Relations aims at ensuring the reciprocal independence of States and prevents States from being placed in the position of defendants in the courts of another State. This rule is applicable also to the diplomatic agents of a State, but only when the acts are practised on behalf of the State and for the purposes of the mission and not in case of acts in their private capacity. Hiring a domestic servant for the private residence of a diplomat is an act outside of the diplomatic functions of the agent and therefore not included in the immunity from jurisdiction.”
“There have been onslaughts on the protected status of diplomats, from those asserting that it cannot be justified in the face of abuse of immunity and from those claiming that it must give way when it appears to conflict with claims to access to justice or to human rights. In recent years diplomats have become conspicuous and highly vulnerable targets for terrorist attack. In the face of these attacks the Convention has survived unscathed. … Subsequent developments in the functions of governments, the conduct of international relations, in trade, travel, and communications altered in only marginal respects the main functions of diplomatic missions - to represent the sending State and protect its interests and its nationals, to negotiate with the receiving State, to observe, and to report. The basic rules which enabled those functions to be carried out have therefore continued largely without change.”
“… reciprocity forms a constant and effective sanction for the observance of nearly all the rules of the Convention. Every State is both a sending and a receiving State. Its own representatives abroad are in some sense always hostages. Even on minor matters of privilege and protocol, their treatment may be based on reciprocity. For the most part, failure to accord privileges or immunities to diplomatic missions or to their members is immediately apparent and is likely to be met by appropriate countermeasures.”