Suing France instead of Foreign Diplomats

Foreign diplomats enjoy diplomatic immunities in France. This is a rule of customary international law, which was also codified in the 1961 Vienna Convention on Diplomatic Relations. This means that employees of foreign diplomats will be unable to enforce judgments against their employer if the latter does not comply with applicable labour law. Right, but in France they may be able to sue the French state instead.

Modern Slave

Ms Susilawati had been hired by a diplomat from the sultanate of Oman who was serving at UNESCO in Paris. The job was to be a housemaid at the home of the diplomat, a five bedrooms apartment in Paris’ 16th arrondissement. The French press has reported that the 34 year old woman had been hired in Jakarta for 200 USD per month, which was four times what she was making in Indonesia, 30% more than what she was paid when she worked in Ryad for a Saudi prince, but not quite the French minimum wage. Indeed, she was meant to work 7 days a week. That, too, was not exactly compliant with French labour law.

A neighbour called Amnesty International, who alerted the French committee against modern slavery . The case was taken to French labour courts, which eventually ordered the diplomat to pay her € 33,000 in unpaid salaries. The French jugdment could not be enforced, however, as the diplomat enjoyed an immunity from execution. Why would he pay, after all: he had honored the contract. He is reported to have explained:

She got all her salary. She was happy and lived very well. Then she disappeared from my house.

The employee then petitioned the French state to have it pay instead. The French Ministry of foreign affairs refused. The employee challenged that decision before French administrative courts. She eventually won before the French supreme court for administrative matters (Conseil d’Etat) which, in a judgment of February 11th, 2011, held that the French state was strictly liable, and ought to compensate for the loss of the employee. 

Egalité des citoyens devant les charges publiques

To reach that result, the Conseil d’Etat applied a half century old common law rule providing for the liability of the French state for the application of international treaties. In 45 years, it is only the third time that the court has compensated a plaintiff pursuant to this rule.

Under French administrative law, the French state may be found liable for the application of treaties under two conditions. The first is that the relevant treaty should not have excluded all forms of compensation of victims of its application. The second rule is that the loss suffered should be “special and severe”. The foundation of this tort is that citizens should be equal before “public burdens” (charge publiques). It is pretty hard to translate the concept in English, but it certainly includes the burdens of the legal system. In other words, nobody should suffer disproportionately from the application of the law, and if someone was to, he could be compensated for that uncommon and severe loss, which could then be characterised as being “special and severe”.

So, had Ms Susilawati really suffered a special loss? The diplomat French state argued that she had not, and the argument was found to be convincing by the lower courts. There was nothing uncommon for the employee of a diplomat about being unable to enforce a judgment against his employer, and whether there were only few diplomats was irrelevant, the lower administrative courts found. The Conseil d’Etat reversed. It held that, for the purpose of assessing whether the loss suffered was special, the lower courts should have inquired whether the victims of similar acts were numerous or few (later in the judgment, the court actually gives its answer by stating that they are few). The court also ruled that the loss suffered was severe, but did not elaborate on this finding, and in particular did not refer to the particular circumstances of the employment.

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  • ingrid June 14, 2011, 2:42 pm

    Thank you for this interesting post. Why did the diplomat defend the French state by arguing that she had not suffered a special loss? It doesn’t seem like he would care if the French state were held liable.

  • Gilles Cuniberti June 14, 2011, 2:55 pm

    You are quite right. He was not a party to the proceedings. The French Ministry of Foreign Affairs made the argument.

  • ingrid June 14, 2011, 3:01 pm

    Thanks (I wish I read French!). So, no good deed goes unpunished — if you have time, could you tell if the opinion cites decisions of other national or international courts, or does it cite only French cases? I am enjoy all the good immunity posts on the blog…

  • Gilles Cuniberti June 14, 2011, 3:53 pm

    French courts never cite any decisions. In particular, they do not cite their own, as the French officially live with the fiction that courts do not make the law, even in administrative matters where the law was almost entirely made by the Conseil d’Etat. The only exception is the case law of the European court of the justice, and this is because, and only when, EU cases are officially binding.

  • Pietro Franzina June 14, 2011, 8:08 pm

    Gilles, there’s one point I’m missing. Maybe you can help me. As you explained, the Conseil d’Etat relied on the principle whereby CITIZENS should be equal “devant les charges publiques”. How is the requirement of citizenship to be understood for the purpose of this principle? Does it refer to French (and maybe EU) citizens only, or does it refer to qny individual, regardless of his/her nationality? It would seem that in the case at hand the employee was an Indonesian woman. Is the issue of nationality specifically dealt with in the previous judgments you mentioned in your post?

  • Anna Gardella June 15, 2011, 7:09 am

    Gilles, thanks for this very interesting post. I agree with the point made by Pietro on the “citizens” requirement.
    Based on your post, my view is that the notion of “citizen” seems to have been replaced by a more universal notion of “individual” regardless of the nationality …. Are we witnessing the beginning of a new era of French style Alien Tort Statute? That would be a very challenging development!

  • Gilles Cuniberti June 15, 2011, 7:27 am

    It seems clear that the plaintiff was not a French national. But the judgment does not mention it. Actually, it does not address the territorial reach of the rule. I think that the case was simply not regarded as a conflict case by the court.

    But the result is exactly what you’ve both pointed out: citizens can be foreigners. I would not go as far as saying that no connection with France is required. I think that what was critical was the residence of the plaintiff in France.

    In the previous case where the French state was found liable on the same ground in 2004, the plaintiffs were all French nationals. I would have to check for the first case in 1966, but I think it was the plaintiff then was also French.

    On another note and for public international law readers, the 2011 judgment underscores that the relevant treaty was incorporated in the French legal system. This raises an interesting question, given that the said treaty could be considered as merely declaratory of customary international law.

  • Pietro Franzina June 15, 2011, 8:39 am

    If nationality doesn’t matter, I would be tempted to say that the rationale of the judgment should be found in human rights considerations. This might explain the reference made by the Conseil d’Etat to the ECHR in the preamble of the judgment (by the way, this reference does not imply necessarily an extraterritorial reach of French law: according to Article 1, the High Contracting Parties shall secure to “everyone within their jurisdiction” the rights and freedoms enshrined in the Convention, and it seems to me that an individual seeking the enforcement of a French judgment in France does fall within the French jurisdiction, i.e. under French governmental authority). If the assumption is correct, I guess that both French domestic standards and ECHR standards (as developed by the ECtHR) are likely to be taken into account in order to assess whether the loss suffered by the individual has been sufficiently severe or not, for the purpose of the rule at stake.

  • Gilles Cuniberti June 15, 2011, 8:55 am

    Pietro, that is a fair interpretation. Now, if the connecting factor is merely being within the jurisdiction, and if seeking enforcement of a judgment in France is enough, then this raises the issue of the enforcement in France of foreign judgments or arbitral awards in cases with no connection with France. An arbitral award against Russia in the Yukos case, for instance. Would and should that be enough to trigger the liability of the French state?