Modern Slavery and the Commercial Activity Exception to Diplomatic Immunity From Civil Jurisdiction: The UK Supreme Court's Decision in Basfar v Wong
| Published date | 01 January 2024 |
| Author | Sophie Ryan |
| Date | 01 January 2024 |
| DOI | http://doi.org/10.1111/1468-2230.12827 |
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Modern Law Review
DOI:10.1111/1468-2230.12827
CASES
Modern Slavery and the Commercial Activity
Exception to Diplomatic Immunity From Civil
Jurisdiction: The UK Supreme Court’s Decision in
Basfar vWong
Sophie Ryan∗
In Basfar vWon g a majority of the UK Supreme Court decided that the exploitation of labour in
circumstances of modern slavery constitutes ‘exercising’a ‘commercial activity’ for the purposes
of the exception to diplomatic immunity contained in Article 31(1)(c) of the Vienna Conven-
tion on Diplomatic Relations. The case is the rst time a senior court anywhere in the world
has adopted such an interpretation of this provision and potentially opens up a new avenue for
holding foreign diplomats accountable for exploiting domestic workers. Yet, the Court’s rea-
soning also leaves unanswered some important questions. This note reviewsthe Supreme Court
decision and its implications for the content and scope of the ‘commercial activity’ exception
to diplomatic immunity. It also considers what the case might reveal about the Supreme Court’s
current attitude(s) to adjudicating complex questions of international law that potentially war-
rant breaking new ground.
In Basfar vWon g a majority of the UK Supreme Court decided that the ex-
ploitation of labour in circumstances of modern slavery constitutes ‘exercising’
a ‘commercial activity’ for the purposes of the exception to diplomatic immu-
nity provided for in Article 31(1)(c) of the Vienna Convention on Diplomatic
Relations (VCDR).1The case will accordingly now go back to the Employ-
ment Tribunal for a hearing on the truth of the allegations for the purposes of
the exception and then, perhaps, to a hear ing on the merits,2although enforce-
ment of any decision against Mr Basfar will be dicult as he has now nished
his posting and seemingly left the UK.3Nonetheless,the Supreme Court’s de-
∗DPhil in Law Candidate, Magdalen College, Oxford. I am grateful for the helpful comments of
Philippa Webb and peer reviewers on an earlier version of this draft. All views expressed and any
errors are solely my own.
1 [2022] UKSC 20; [2023] AC 33 (Basfar vWong (SC)).
2ibid at [107].
3 See ‘The London Diplomatic List’ (Revised December 2022) at https://www.gov.uk/
government/publications/foreign-embassies-in-the- uk (last visited 10 January 2022). As noted
in the Supreme Court’sdecision, enforcement remains a challenge anyway due to the prohibition
in the VCDR, Art 31(3) of measures of execution that would infringe the inviolability of the
diplomat’s person or residence: see Basfar vWong (SC) ibid at [50].
© 2023 The Authors.The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2024)87(1) MLR 202–217
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,which per mits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Sophie Ryan
cision in this case is the rst time a senior court anywhere in the world has
interpreted the ‘commercial activity’ exception to diplomatic immunity in the
VCDR as including the exploitation of a domestic worker in conditions of
modern slavery.4The decision in Basfar vWong potentially opens up a new
avenue for holding foreign diplomats accountable for exploitation of domestic
workers in conditions of modern slavery. It is ground-breaking.
The case also raises, again,the now familiar ‘tightrope’of pr inciple and policy
faced by domestic courts in cases that raise claims of international immunity in
the context of alleged serious human rights abuses.5At least since Jones vSaudi
Arabia (Jones)andJurisdictional Immunities of the State (Germany vItaly) (Judgment)
(Jurisdictional Immunities),6the conventional wisdom has been that,generally,this
tightrope is balanced in favour of immunity – international immunities will not
generally be displaced on the basis of the international wrongfulness of conduct
(including violation of a peremptory norm), nor by the right of access to reme-
dies,and no ‘new’ exception to (at least) State immunity has emerged for human
rights cases.7Basfar vWon g casts some doubt on this conventional wisdom,but
without revisiting the battleeld that is specic ‘human rights exceptions’ to
international immunities. Indeed,Ms Wong’s representatives made no submis-
sions on the ‘human rights arguments’ litigated in previous cases and instead
focused on the more modest question of the scope of an existing, codied ex-
ception to diplomatic immunity.8Althoughthe inter national policy imperatives
underlying diplomatic immunity make a broad interpretation of any exception
4 The Supremo Tribunal de Justiça (Portugal) found in Fonseca vLarren (30 January 1991) that
‘[h]iring a domestic servant for the private residence of a diplomat is an act outside of the diplo-
matic functions of the agent and therefore not included in the immunity from jurisdiction’,
however this was on the basis of a principle of statutory construction that is not applicable to a
treaty in England: see Al-Malki vReyes [2017] UKSC 61; [2019] AC 735 (Reyes (SC)) at [33];
Basfar vWong (SC) ibid at [149].
5 See,for example,Andrew Dickinson, ‘Ger many v. Italy and the Territorial Tort Exception: Walk-
ing the Tightrope’ (2013) 11 Journal of International Criminal Justice 147.
6 See for example Al-Adsani vUK (2001) 123 ILR 24; Jones vSaudi Arabia [2006] UKHL 26;
[2007] 1 AC 270; Jurisdictional Immunities of the State (Germany vItaly) (Judgment) [2012] ICJ Rep
99 (Jurisdictional Immunities).Although, for some recent work challenging whether the assessments
made of the state of customary international law in previous cases holds, see Vessela Terzieva,
‘State Immunity and Victims’ Access to Court, Reparation and the Truth’ (2022) 22 International
Criminal Law Review 780.
7 See generally François Larocque, ‘Torture, jurisdiction and immunity: theories and practices in
search of one another’in A. Orakhelashvili (ed),Researc h Handbook on Jurisdiction and Immunities in
International Law (Cheltenham: Edward Elgar, 2015). Although see Benkharbouche vEmbassy of the
Republic of Sudan [2017] UKSC 62; [2019] AC 777 (Benkharbouche), where the Supreme Court
held that the immunity of State employers of domestic embassy personnel provided under the
State Immunity Act 1978 was not requiredby public international law and therefore contravened
the European Conventionon Human Rights, Art 6. On the preservationof diplomatic immunity
‘in the face of these attacks’see Eileen Denza, Diplomatic Law:Commentary on the Vienna Convention
on Diplomatic Relations (Oxford: OUP, 4th ed, 2016) 1.
8 The Court explicitly ‘commended’the ‘decision of Ms Wong’srepresentatives not to renew’these
arguments: Basfar vWong(SC) n 1 above at [24]. On the strategy, see Philippa Webb, ‘Not Rein-
venting the Wheel:Using Existing Exceptions to Sovereign Immunity to Enhance Accountabil-
ity’ (Thomas Franck Lecture, 8 September 2022) at https://www.kfg- intlaw.de/News%20and%
20Events/news_einzel.php?ID=233 [https://perma.cc/55AE-6RM7].
© 2023 The Authors.The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2024) 87(1) MLR 202–217 203
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