Case of the Day: Reyes v. Al-Malki

The case of the day is Reyes v. Al-Malki, [2017] UKSC 61. The case is in the “diplomat allegedly abuses a domestic servant and then claims immunity from suit” genre. The infamous Gurung v. Malhotra is in that genre, as is the Khobragade case from 2013. The cases I’ve seen don’t seem to get much appellate attention, so this decision of the UK Supreme Court is particularly noteworthy.

The claim was that a Saudi diplomat in London, Al-Malki, and his wife employed a Filipino woman, Reyes, as a domestic servant for about two months, and that they confiscated her passport, prevented her from leaving, failed to pay her wages due, and failed to give her proper accommodations. The case was decided on the assumption that the Al-Malkis had violated the International Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, the Palermo Protocol.

The case turned out to be easy, and the decision unanimous. The Vienna Convention on Diplomatic Relations (art. 31) gives a broad but not absolute immunity to diplomatic agents from the civil and administrative jurisdiction of the receiving state, but only (art. 39) until he leaves the country; but his immunity extends indefinitely “with respect to act performed … in the exercise of his functions as a member of the mission.” Al-Malki left his post years ago, and all the judges agreed that the employment of Reyes, not to mention her alleged maltreatment, was not an act performed in the exercise of Al-Malki’s functions as a member of the Saudi mission. Therefore, there was no immunity. An easy case.

But the judges addressed, and came to different views on, a more difficult question. Under article 31, one of the few exceptions to a diplomat’s immunity from civil and administrative jurisdiction is for “professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” Was the employment or the mistretament of Reyes such a commercial activity, such that Al-Malki would have been subject to jurisdiction even if he were still serving in the UK?

Lord Sumpton, joined by Lord Neuberger, gave the easy answer. No, employment of a domestic servant for personal purposes is not such a “professional or commercial activity.” The plain meaning, he wrote, is that the diplomat must be “carrying on or participating in a professional or commercial business.” The judge distinguished foreign sovereign immunity (“state immunity”) from diplomatic immunity, noting that the exceptions to foreign sovereign immunity, including the commercial activity exception, are meant to give effect to the distinction between acts jure gestionis and jure imperii, and thus, for example, a claim arising out of a state’s employment of a person can be within the exception to foreign sovereign immunity even if the employment is not in a commercial business.1

Lord Wilson, writing for himself, Lady Hale, and Lord Clarke, argued that Reyes, the alleged victim here, was not just employed but was the victim of trafficking, and that trafficking is a commercial activity, albeit an illicit one. He also cast doubt on the distinction drawn between state immunity and diplomatic immunity: “I cannot readily explain why proceedings relating to a contract of employment entered into by a foreign state, for performance in the UK, will not in principle attract immunity in circumstances in which, if the contract is entered into by a diplomat, it will in principle attract immunity.”

  1. There is a well-developed body of law in the US on what sorts of employees of foreign states come within the commercial activity exception when they bring employment-based claims, which I’ve discussed here on occasion.

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