Demanding Accountability Where Accountability Is Due: A Functional Necessity Approach to Diplomatic Immunity Under the Vienna Convention
PDF · Nina Maja Bergmar · May-16-2014 · 47 VAND. J. TRANSNAT'L L. 501 (2014)
This Note addresses the inability of domestic workers to seek redress for exploitation by diplomat employers. In examining the legal quagmire facing these workers, this Note highlights a departure by courts from the functional necessity theory underlying the Vienna Convention. Courts now rely wholly on the U.S. State Department’s interpretation of the scope of diplomatic immunity, communicated through “Statements of Interest.” The significant deference given to such statements has had dire consequences for exploited victims. Under a functional necessity approach, domestic workers are able to demand redress, as exploitation is a private act—i.e., not in furtherance of the diplomatic mission—undertaken for personal gain. In contrast, the State Department’s broad grant of immunity to diplomats has effectively eroded any exception to immunity hitherto relied upon by plaintiffs. This Note questions the delegation of interpretive functions to the Executive Branch and proposes a return to restrictive immunity, as postulated by functional necessity theory.