Explainer: What Is Diplomatic Immunity and What Does it Have To Do With Migrant Domestic Work?

Diplomatic immunity allows diplomats and employees of international organizations to perform their official duties without fear of criminal or civil suit.

MANILA, Philippines – Based on the Vienna Convention on Diplomatic Relations, diplomats, employees of international organizations, and their immediate family members are covered by various levels of diplomatic immunity while in their receiving state.

This means that they are protected from civil and criminal suit and cannot be subjected to any form of arrest or detention in the country where they are assigned to perform their official duties.

Why is it needed?

Diplomats play a crucial role in protecting the interests of their sending state. An ambassador — while serving their post in a receiving state — acts as the highest ranking official of the country they represent. They can negotiate and sign treaties and facilitate trade deals.

Diplomatic immunity maintains the delicate balance between differing ideologies and political agendas among countries and facilitates peaceful international relations. This immunity ensures that diplomats are able to conduct their duties and activities efficiently without being subject to oppression or reprisal from any entity in the receiving state.

Take, for example, the fragile diplomatic relations between the Philippines and China over overlapping claims in the West Philippine Sea. Under the blanket of diplomatic immunity, the Philippine envoy posted in China is protected from suit, arrest, or detention from any entity as an indirect form of retaliation against the Philippines for asserting its claim.

As stated in the US Guidance for Law Enforcement and Judicial Authorities, diplomats and other foreign representatives can carry out their duties effectively only if they are accorded a certain degree of insulation from the laws of the receiving state.

The degree of protection awarded to diplomatic personnel is dependent on their rank and position. An ambassador, as the highest ranking official, enjoys full diplomatic immunity. Embassy and consular employees under the ambassador enjoy a lower level of diplomatic immunity based on their position.

When immunity spills into impunity

Diplomatic officials and employees of international organizations also enjoy the privilege of securing special work visas for the employment of domestic staff. This is where we see how diplomatic immunity presents a huge gap in the protection of migrant domestic workers.

A Rappler investigation using public records from open-data sources, police reports, court records, news reports, case files from nongovernment organizations (NGOs), and exclusive interviews with survivors showed that there have been at least 208 migrant domestic workers who reported incidents of exploitation from 1988 to 2021 against 160 diplomats and employees of international organizations.

Allegations range from wage theft — the most common — to forced labor, extreme emotional, psychological, and sexual abuse. In some instances, some migrant domestic workers were not paid at all.

Of the total 122 cases and complaints, 13 were dismissed because of diplomatic immunity.
Some 29 officials implicated in cases of domestic worker exploitation are still holding key positions in embassies or international organizations

There were 33 cases that were granted monetary awards obtained either via default judgment or settlement. These judgments totaled nearly $11 million, excluding three that had undisclosed settlement amounts.

NGOs and lawyers working on domestic worker rights said that cases decided in favor of the domestic worker are often a bittersweet victory. Many of the judgments are difficult to actually enforce because the diplomat has left the country or has been reassigned to another diplomatic posting. It can take years to reinforce a judgment and workers are usually not paid the amount due them.

Challenging diplomatic immunity

A receiving state can request a country to waive the diplomatic immunity of its diplomats, but this is extremely rare.

The protections covered by diplomatic immunity are wide, but there are exceptions. One of them is actions relating to professional or commercial activity. This means that diplomats cannot use their position in any way for personal profit or gain, or for commercial activities outside the scope of their official duties.

This exception to diplomatic immunity was cited in the case won by Filipino domestic worker Josephine Wong against her employer, Khalid Basfar, a diplomat representing Saudi Arabia in the United Kingdom.

Wong, who worked for Basfar from November 2015 to May 2018, alleged that she was paid nothing for seven months, then paid only a fraction of what she was promised in her contract in July 2017. She escaped in 2018.

Wong filed a case of breach of employment rights at the UK Employment Tribunal. Basfar contested the charges on grounds of diplomatic immunity.

In the landmark decision handed down on July 6, 2022, the UK Supreme Court ruled that Basfar did not have diplomatic immunity from the civil jurisdiction of the United Kingdom because the circumstances of Wong’s employment fall under the “commercial activity” exception in the Vienna Convention.

According to the High Court, by not paying Wong the wages she was entitled to, Basfar gained “substantial financial benefit” and the deliberate and systematic exploitation of Wong constituted a “commercial activity practiced for personal profit.”

The Department of Migrant Workers (DMW), the Philippine government agency tasked with the welfare of Filipino migrant workers, welcomed the High Court’s decision and said in a statement: “This decision, the first of its kind the world over, opens the floodgates for workers, abused by their employers who are members of the diplomatic community, to seek recompense and refuge under the law.”