State Immunity and Labor Disputes: A Case Study
Case of D. Francisco vs. the British Embassy
1. Can D. Francisco sue the British Embassy for unfair dismissal, despite the Embassy’s potential claim of jurisdictional immunity?
It is well known in international law governing State immunity that the attorney for the British Embassy could plead jurisdictional immunity. This prevents D. Francisco from going to Social Court No. 1 in Madrid to ask the judge to qualify the dismissal and, if deemed improper, obtain a conviction.
First, it must be said that the struggle of an individual against a foreign State is quite difficult. That State could invoke its immunity. Overcoming such immunity would be a long process, and could also be fruitless because of the problem of having the sentence executed. Even if the plaintiff, in this case, the dismissed worker, is quite right, he may feel that his right to an effective remedy would have been violated.
International literature has proposed several exceptions to the immunity of such countries, including commercial transactions and labor, which would apply in this case since here the British State is acting more like a private entrepreneur.
Therefore, we can say that D. Francisco is not in any way prevented from going to court to initiate proceedings because such a process represents an exception to State immunity. This is found in a negative list in the ILC draft, the European Convention, and national legislation, where there are seven exceptions, including those relating to employment contracts, which would apply in our case.
2. If Social Court No. 1 rules against the British Embassy, and the Embassy refuses to comply, what recourse does D. Francisco’s lawyer, D. Jesus Ruiz Alfaro, have?
In this case, the lawyer should file a writ of amparo before the Constitutional Court, which shall decide the matter. Therefore, they must wait for a ruling that is expected to be favorable to the plaintiff. This ruling would remand the case to Social Court No. 1 of Madrid to explore other avenues, such as contacting the Ministry of Foreign Affairs to draw up a list of attachable assets of the Embassy.
Another option would be to initiate civil proceedings against the British State to secure the execution of the sentence.
3. Assuming the British Embassy has various properties in Spain:
a) How could enforcement of the sentence be sought against those assets, and which assets could be seized?
Given this situation, and assuming that the Embassy has property available in the country, we should exempt many cases, including ships and aircraft of the State, the bank accounts of diplomatic missions, and assets that affect the exercise of sovereign activities (jure imperii). However, the property of foreign States used for management purposes (jure gestionis) are not immune from execution.
Assets subject to agreements affecting the commercial interests of that State in the territory of the forum would also be subject to seizure.
b) Is the Spanish judge obliged to seize the British Embassy’s property?
On the one hand, there is the principle of non-infringement of an effective remedy that protects the applicant. However, this would conflict with the principle or customary rule of international character, which would not be bound by previous rulings. Noting that without these serving as a precedent, the judge could choose some other mode of redress.
4. What recourse does D. Francisco have if the Spanish judge, following Constitutional Court jurisprudence, accepts the British Embassy’s claim of immunity from execution?
If the judge were to accept the immunity of all assets related to the British Embassy, D. Francisco could only exhaust all other avenues for compliance with the decision or seek new rulings. This is because the principle of effective judicial protection would be violated. Therefore, he could appeal to different courts at the national, European, or international level.
5. What if Social Court No. 1 decides to seize a bank account of the British Embassy used for diplomatic functions?
Recourse to a fact already mentioned in a previous question: the judge could not impound accounts for various reasons. These accounts are exempt from attachment, a rule well established in international law because the use of such accounts is for the development of the ordinary activity of the embassies themselves. Even if those accounts were not clearly used for the points previously discussed, due to the impossibility of investigating the activities related to these accounts, we conclude, therefore, that the bank accounts in question could not be seized.