Study Domestic Workers in Diplomats’ Households Rights Violations and Access to Justice in the Context of Diplomatic Immunity Angelika Kartusch Imprint The Institute Deutsches Institut für Menschenrechte The German Institute for Human Rights is the inde- German Institute for Human Rights pendent National Human Rights Institution in Ger- Zimmerstr. 26/27 many. It is accredited according to the Paris Principles 10969 Berlin of the United Nations (A-Status). The Institute’s activ- Phone: (+49) (0)30 25 93 59 - 0 ities include the provision of advice on policy issues, Fax: (+49) (0)30 25 93 59 - 59 human rights education, applied research on human [email protected] rights issues and cooperation with international organ- www.institut-fuer-menschenrechte.de izations. It is supported by the German Federal Minis- try of Justice, the Federal Foreign Office, the Federal Cover photograph: Ministry for Economic Cooperation and Development Ms Jacob Langford and the Federal Ministry of Labour and Social Affairs. The National Monitoring Body for the UN Convention Typesetting: on the Rights of Persons with Disabilities was estab- Wertewerk, Tübingen lished at the Institute in May 2009. June 2011 The project “Forced Labor Today - Empowering Traf- ficked Persons” is carried out by the Institute since ISBN 978-3-942315-17-3 (PDF) 2009 in cooperation with the Foundation “Remem- brance, Responsibility and Future” (EVZ). The research © 2011 Deutsches Institut für Menschenrechte for this study has been undertaken as part of the pro- German Institute for Human Rights ject, funded through the Foundation EVZ. The study All rights reserved was printed at the expense of the Institute. Print compensated Id-No. 1111290 www.bvdm-online.de Domestic Workers in Diplomats’ Households Rights Violations and Access to Justice in the Context of Diplomatic Immunity. Analysis of Practice in Six European Countries Author Angelika Kartusch Academic Advisor Heike Rabe Author - Academic Advisor The Author Academic Advisor Angelika Kartusch holds a law degree from the Uni- Heike Rabe works as project manager of the project versity of Vienna. She has twelve years of work expe- “Forced Labor Today – Empowering Trafficked Persons” rience in the fields of trafficking in human beings and at the German Institute for Human Rights. She super- women‘s human rights, with a focus on research, train- vised the research design and the composition of the ing and project coordination From 1999 to 2006 she present study. Before joining the institute in 2009 she worked with the Ludwig Boltzmann Institute of Human has been a researcher on national and international Rights in Vienna, and from 2006 to 2009 with the projects since 2000, primarily in the areas of domestic United Nations Development Fund for Women in New violence, sex work and human trafficking. Selected York and Brussels. She also has worked as consultant projects are the Evaluation of the German Prostitution with the United Nations, OSCE and Council of Europe Act for the German Federal Ministry of Family Affairs, as well as non-governmental organizations. Since Senior Citizens, Women and Youth; interview study on 2010, Ms Kartusch is based in Vienna, where she works persons trafficked into sexual exploitation for the BKA as free-lance consultant. (German Federal Criminal Police Office); and feasibil- ity study for the EU Commission on the creation of a hotline for trafficked persons throughout the EU. 4 Preface by the German Institute for Human Rights Preface by the German Institute for Human Rights Rights violations experienced by migrant domestic Rights (ICESCR) is violated when they receive less than workers in diplomats’ households may seem, at first minimum wages, are forced to work overlong periods glance, to be a side issue only of the broader discourse without adequate rest and without periodic holidays on human trafficking and exploitation of labor with pay. The prohibition of slavery, servitude and migrants. Upon further inspection, however, its rele- forced labor, enshrined in Art. 8 of the International vance as a human rights issue becomes clear in two Covenant on Civil and Political Rights (ICCPR) and Art. respects: First, even if the number of victims consti- 4 of the European Convention on Human Rights (ECHR), tutes only a small portion of labor exploitation and is at stake in the most severe cases. The right to health forced labor worldwide, labor rights violations and may be violated by unhealthy working conditions with- exploitation in diplomats’ households are a global phe- out rest periods and insufficient nutrition, as well as nomenon rooted in structural shortcomings in the pro- the right to an adequate standard of living, including tection of diplomats’ domestic workers, both in send- adequate food (Art. 11, 12 ICESCR). The right to phys- ing states and in host states. Second, the employers’ ical integrity and the prohibition of torture are vio- diplomatic immunity aggravates rights violations and lated by physical and sexual attacks and degrading restrictions of freedom experienced by domestic work- treatment (Art. 7 ICCPR, Art. 3 ECHR). The right to pri- ers as it severely limits, if not entirely bars, victims’ vacy is affected when the domestic worker is not pro- access to justice. vided with a room for herself or himself (Art. 17 ICCPR, Art. 8 ECHR). Freedom of movement is infringed upon Spectrum of cases when the worker is not allowed to leave the house on her or his own (Art. 9, 12 ICCPR). The restriction of lib- Reported cases range from less severe labor law erty entails violations of other rights, such as the free- infringements (e.g. no remuneration for overtime work, dom of religion when the worker cannot go to a place less wages than agreed beforehand) over severe forms of worship, or the right to family life, when he or she of labor exploitation (wages far below the minimum is not allowed to go out to visit or make a phone call wage, overlong workings hours, no days off or holidays) to family members (Art. 18, Art. 17 ICCPR). Interna- to working and living conditions that amount to forced tional human rights treaties furthermore impose the labor and slavery-like practices (low or literally no pay- duty on states to guarantee access to justice for such ment of wages, having to work around the clock, rights violations to victims (Art. 2 Para 3 ICCPR, Art. restrictions of liberty, inhuman accommodation and 13 ECHR). food, physical and sexual violence). While the over- whelming majority of victims are women, mostly The relation between human rights and diplomatic employed as domestic helpers, nannies or cooks, there immunity are also cases of male victims, employed as cooks, gar- deners or chauffeurs. When victims are seeking justice, their employers’ dip- lomatic immunity, acknowledged in the 1961 Vienna Rights violations Convention on Diplomatic Relations, comes into play, barring as well criminal, civil and administrative juris- Victims may experience violations of their human diction as the enforcement of judgments in the host rights in manifold ways: Their right to just and favora- state. Insofar, employers’ diplomatic immunity in prac- ble working conditions enshrined in Art. 7 of the Inter- tice overrules the human rights of the victim and leads national Covenant on Social, Economic and Cultural to a situation of de facto-unaccountability and –impu- 5 Preface by the German Institute for Human Rights nity for exploitative employers. For the most severe On 2nd and 3rd of May 2011, the German Institute for cases amounting to slavery, general international law Human Rights, in cooperation with the Special Repre- offers a resolution of this situation: The prohibition of sentative and Co-ordinator for Combating Trafficking slavery is generally acknowledged to have the status in Human Beings of the Organization for Security and of a peremptory norm (“ius cogens”) in international Co-operation in Europe (OSCE), organized a roundtable law. Thus, it cannot be overridden by any state through on the issue of “Rights Violations and Access to Justice international treaties or general customary rules not of Domestic Workers in the Context of Diplomatic endowed with the same normative force. In situations Immunity” in Berlin. The roundtable was attended by when the exploitation of domestic workers amounts thirty selected experts from nine countries and brought to slavery, the victims’ human rights thus precedes over together representatives from Foreign Ministries, non- diplomatic immunity. But even in those cases of human governmental organizations, lawyers, the academia rights violations listed above which do not amount to and International Organizations. The research findings slavery or torture, host states of diplomatic missions and the recommendations were presented to partici- cannot confine themselves to referring to diplomatic pants and discussed in depth. All participants wel- immunity and remain inactive. Human rights impose comed the study as the most comprehensive research on states the obligation to offer alternative ways to of its kind and committed themselves to continue and justice and redress for victims – be it by making avail- reinforce their work to protect victims’ human rights. able alternative complaint mechanisms or by providing We hope that the study provides other actors both the compensation to the victims as a case of State liabil- incentive and the ideas for taking up this human rights ity (as the French Conseil d’État determined in a recent issue, too. judgment). Berlin, June 2011 The study and the expert roundtable German Institute for Human Rights The German Institute for Human Rights carried out the Prof. Dr. Beate Rudolf present study to provide an expanded and comprehen- Director sive insight into the practice of several European states, to identify examples of promising practice and to Dr. Petra Follmar-Otto develop a comprehensive set of human rights based Head of Department Human Rights Policy Germany/ recommendations to all actors, especially the Protocol Europe departments of Foreign Ministries and non-govern- mental organizations.