02 Mar Diplomatic Slavery
NPR had two interesting segments yesterday on the plight of household workers employed (or, rather, held) by foreign diplomats in the US (here and here). If not for diplomatic immunity, the employers would be subject to prosecution for crimes relating to human trafficking and forced labor. From the sound of it, there are many such cases.
Two possible responses: is it possible that we could start thinking about narrowing diplomatic immunity for this and other forms of criminal activity? I’m not an expert in the field, but it seems like there may already have been some chipping away around the edges. For example, diplomatic missions in the US have to buy automobile liability insurance (see this interesting pamphlet from the State Department’s Office of Foreign Missions, which notes that “we must do our best to make certain that diplomats are held accountable for their actions”). Waivers of immunity are more common, as in the notorious case of the drunk Georgian diplomat who ran over a teenager near Dupont Circle in 1997. Do the traditional rationales for immunity — to facilitate unimpeded relations among states and to protect against pretextual prosecutions — still hold?
A narrower possibility to address this particular problem (suggested by one observer in the NPR report): eliminate the special visa class — the so-called A3 visa — for the household employees of diplomats, and in effect require them to hire locally (thus greatly reducing the potential for exploitation). Which I guess raises another question: is there some IL relating to the right of states to send servants along with their diplomats? Would there be an IL objection to eliminating the special visa class? One can be sure that there would be a lot of jumping up and down about such a move, from those used to indentured help in their homelands, but perhaps that wouldn’t be a bad thing.
Hi Peter, A big concern with hiring locally would be security and specifically counter-intelligence issues that would arise from the sending country’s perspective. The US has a very interesting history on household help to diplomats that helped to form the modern IL rule and diplomatic practices. Section 13 of the 1789 Judiciary Act gave the Supreme Court EXCLUSIVE original jurisdiction for “proceedings against ambassadors. . . or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations.” I speculated in a recent article that this was in response to an incident involving a NYC police arrest of a servant to the Dutch minister in 1788 at his home, for trial in NY state court, possibly related to a personal grudge of some NY politicians against the minister. Also, there was an incident in 1804 involving the kidnapping of a servant to the British minister in Washington, who was, allegedly, a runaway slave the pro-abolition minister had taken in. The AG at the time, Levi Lincoln wrote an opinion on the case. Of course, this is very ironic given the substance of the current controversy with regards to diplomatic household help!… Read more »
Tom, Very interesting. But the servants don’t themselves enjoy diplomatic immunity, do they? Also, I think US diplomats abroad hire household staff exclusively from local labor pools, so the security concern can’t be overwhelming and reciprocity isn’t really a problem, at least not for the US.
Fair point about US practice and reciprocity. We do generally hire from the local labor pool because it’s usually so much cheaper. (Or at least that was the practice at the embassy in South Korea 15-16 years ago when I was there.) I would guess that in very expensive countries, the U.S. embassy staff might even hire from third countries, perhaps of prior posting, which would mitigate the security concern, but then they would have to have visas. Although then you raise economic asymmetry concerns, particularly with respect to delegations from the poorest countries (who seem to be driving very nice cars in NYC, though). As for diplomatic immunity for servants, the late eighteenth century law-of-nations rule appears to have been that domestic servants did enjoy immunity at least from civil process in the courts of the receiving state although there seems to have been an exception for debts incurred prior to entering diplomatic employment and the servants had to be registered with the State Department or its foreign equivalent. In fact, the 1790 Crimes Act made it a crime if you sued a domestic servant absent these circumstances. At that time, diplomatic immunity even for ambassadors with respect to… Read more »
…or the US could simply lean on the countries these diplomats come from to correct their behavior. That’d be a lot easier than trying to pursue them legally.