International Law Immunities and Employment Claims

A Critical Appraisal

Pierfrancesco Rossi

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509952984
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto internazionale

This book provides the first comprehensive analysis of the international law regime of jurisdictional immunities in employment matters. Three main arguments lie at its heart. Firstly, this study challenges the widely held belief that international immunity law requires staff disputes to be subject to blanket or quasi-absolute immunity from jurisdiction. Secondly, it argues that it is possible to identify well-defined standards of limited immunity to be applied in the context of employment litigation against foreign states, international organizations and diplomatic and consular agents. Thirdly, it maintains that the interaction between the applicable immunity rules and international human rights law gives rise to a legal regime that can provide adequate protection to the rights of employees. A much-needed study into an under-researched field of international and employment law.

1

Introduction

Large numbers of individuals find themselves in the employ of foreign states, international organisations (IOs) and diplomatic and consular agents, occupying positions ranging from the most menial of jobs to highly responsible administrative, technical or managerial roles.¹ Civil disputes arising from these employment relationships are frequently brought before the courts of the countries where the plaintiff employees perform their work.² Such legal actions are manifold. Most commonly, they concern wages and other entitlements (such as sick pay, holiday pay, maternity or paternity leave or retirement plans), unfair dismissal, discrimination based on sex, gender, religion, age, disability or other grounds, work accidents, workplace harassment and retaliation or trade union rights. In the most egregious cases, the employees may have been the victims of human trafficking, abuse or enslavement. When cases of this sort end up in court, the issue arises whether the respondent employer is entitled to immunity from jurisdiction under international law. The objective of this book, in a nutshell, is to answer this question.

The international legal regime of jurisdictional immunities in employment matters is fraught with a peculiar tension. On the one hand, states, IOs and diplomatic and consular agents would not be able to perform their functions without hiring and managing a workforce. The need to give these employers broad latitude to pursue their sovereign or institutional goals unimpeded may weigh the balance, on policy grounds, in favour of immunity from labour lawsuits. On the other hand, though, employment is a contract relationship whose parties should be expected to be able to obtain redress whenever their rights are infringed. Also, it is an anomalous contract relationship where one party is in a position of weaker bargaining power and structural subordination, which produces a particular need of legal protection for the human rights of the employee.³ The tension between the public/institutional needs of the employers on the one hand and the contractual basis of the employment relationship and the safeguard of the workers’ human rights on the other may be described as a ‘duality’ intrinsic to any relationship of employment between private individuals and persons entitled to immunities under international law.⁴ This duality is a source of conceptual difficulties that make the state of international law in this field look largely unsettled and, to a degree, unsettling. More specifically, there appears to be still no generally accepted answer to the question of how to strike an appropriate balance between the needs of employers and those of employees in the ambit of immunity law. The ensuing uncertainties are problematic insofar as they undermine the consistency of the international immunity law regime and open the door to differential treatment and discrimination among workers.

Judicial and scholarly opinions have often treated the interests of employers as overriding, giving rise to a widespread belief that such persons are entitled to be totally immunised from domestic employment litigation. Notably, the majority view holds that IOs should enjoy blanket immunity from state jurisdiction concerning staff disputes, such claims being reserved to internal remedies set up by the organisation itself.⁵ Municipal courts have refrained from adjudicating labour disputes with sitting diplomats, and the employees’ entitlement to bring consuls or former diplomats before the receiving state’s courts is contested.⁶ As for foreign states, national courts have frequently treated any relationship of employment as an immune act in public law – particularly, but not exclusively, for work performed at embassies, consulates or other sovereign establishments.⁷ The pervasiveness of the absolutist approach to employer immunities suggests that this tendency is not contingent solely on the specific rules of each of the three areas of immunity law analysed in this study. Rather, it may be seen as having its roots in the nature of the employment relationship itself – that is, in its structural proximity to the functions of persons enjoying immunities under international law. But this difficulty to depart from models of blanket immunity from jurisdiction is worrisome from the standpoint of the workers’ rights protection. Webb has argued that the application of international law immunities in employment matters yields a ‘human rights dilemma’,⁸ and concerns have been raised that, to the extent they leave workers without redress, immunities may be a free pass to abuses.⁹

In recent years, a vast movement of courts has attempted to curb this trend by challenging the immunities of employers from the standpoint of human rights law. The European Court of Human Rights (ECtHR), for instance, has consistently held that blanket grants of immunity to foreign states violate the employees’ right to a fair trial under Article 6 of the European Convention of Human Rights (ECHR).¹⁰ IO immunities too have come under increasing pressure, at least in cases when IO employees are left without effective redress from IO internal justice systems.¹¹ However, what amount of immunity constitutes a tolerable compression of an employee’s right of access to justice remains highly controversial. No agreement seems to exist in case law as to what constitutes an adequate ‘alternative remedy’ for IO staff.¹² It is also unclear whether the employee’s lack of access to an effective remedy may bear any relevance in matters of state or diplomatic immunity.¹³ Most worryingly, courts in several non-European countries have remained extraneous to this trend, giving rise to fears that such challenges to employer immunities may be no more than a European anomaly.¹⁴

A further difficulty arising from the employment relationship’s ‘duality’ is that, where courts and commentators have rejected a blanket approach to employer immunities, the development of limited standards of immunity from jurisdiction has proven contentious. State immunity law provides the prime example of such problems. The application to labour of the distinction between acta jure imperii and acta jure gestionis – the classic formulation of the restrictive state immunity doctrine – is problematic, because it is hard to classify employment with foreign states as a purely public or private act. Arguably, it has elements of both: it is a private law relationship which is essential in performing a state’s public law activities,¹⁵ so much so that the International Law Commission’s (ILC) Special Rapporteur on state immunity, Sompong Sucharitkul, referred to employment as the ‘darkest area of the grey zones’.¹⁶ Nor does an analysis of state practice provide easy solutions. According to the prevailing view in legal doctrine, not much seems to have changed since 1983, when the ILC grumbled about the ‘startling number of inconsistencies and contradictions’ among national judicial decisions on state immunity in labour matters.¹⁷ Some 30 years later, it was still asserted in scholarship that the heterogeneity of practice ‘ma[de] it impossible to deduce any uniform rules’.¹⁸ The finalisation of the UN Convention on State Immunity (UNCSI)¹⁹ – the outcome of 20-odd years of work by the ILC – does not appear to have settled the doubts pervading this area of the law of state immunity. Some courts, including the ECtHR, have turned to the UNCSI’s provision on contracts of employment as codification of international custom,²⁰ but the accuracy of this sweeping assessment has been openly questioned in the subsequent literature and case law.²¹

Against this backdrop, this book intends to bring clarity to the state of the international law regime of jurisdictional immunities in employment matters.²² Three main arguments lie at the heart of this study. First, the book challenges the widely held belief that international immunity law generally requires staff disputes to be subject to blanket or quasi-absolute immunity from jurisdiction. Secondly, it puts forward that it is possible to identify sufficiently well-defined standards of limited immunity to be applied in the context of employment litigation against states, IOs and diplomatic and consular agents. Thirdly, it argues that the interaction between the applicable immunity rules and the relevant rules of international human rights law gives rise to a legal regime which is able to provide adequate protection to the rights of employees.

These arguments are developed over the course of five chapters.

Chapter two lays down a framework for the rest of the book by performing an overview of the immunities from civil jurisdiction to which foreign states, IOs and diplomatic and consular agents are entitled under international law. This chapter shows that, for all that the international law immunities make up a composite and diversified legal regime, in all three areas international law has developed non-absolute (ie limited) standards of immunity from civil jurisdiction. This suggests that, as a default rule, blanket approaches to immunity from civil jurisdiction are unwarranted, and that it is necessary to distinguish between admissible and non-admissible exercises of civil adjudicatory jurisdiction.

Chapter three turns to the problem of the persistence of absolute immunity in employment disputes. It shows that, in apparent contrast with the default rule of limited immunity in the context of civil litigation, both judicial decisions and scholarly writings manifest a substantial resistance to the application of non-absolute standards of immunity in employment matters. This chapter challenges the rationales for the persistence of absolute immunity in labour litigation and submits that none of the common justifications for absolute or quasi-absolute immunity holds up on closer examination, except for cases where absolute immunity results from unequivocal treaty provisions. The argument that this chapter puts forward is that any form of ‘employment exceptionalism’ in international immunity law is unwarranted. Just like any other form of civil litigation, it is necessary to devise limited immunity standards applicable to employment cases.

Chapter four examines how the doctrine of restrictive state immunity has been adapted to the peculiar context of employment litigation. The chapter’s main claim is that this process of adaptation has taken place through the development of immunity standards that are peculiar to the area of labour and to a good extent are alternative to the classic formulation of restrictive state immunity, ie the distinction between acta jure imperii and acta jure gestionis. The discussion analyses the various employment-specific immunity criteria developed in international and domestic immunity instruments, as well as in domestic judicial decisions, and how such criteria have been applied to concrete cases. In light of a comprehensive analysis of existing state practice, the chapter concludes by bringing clarity to the much-debated issue of the status of the customary international law of state immunity in employment matters.

Chapter five aims to delineate non-absolute standards of immunity applicable to claims against employers other than the foreign state. Its key argument is that, despite the comparatively limited judicial practice available, it is possible to flesh out viable standards of limited immunity from staff claims brought against IOs and diplomatic and consular agents, both in post and after the end of posting. It further argues that, to this end, restrictive immunity standards developed in the context of employment disputes with state...