This book provides the first comprehensive analysis of the international law regime of jurisdictional immunities in employment matters. Three main arguments lie at its heart. Firstly, this study challenges the widely held belief that international immunity law requires staff disputes to be subject to blanket or quasi-absolute immunity from jurisdiction. Secondly, it argues that it is possible to identify well-defined standards of limited immunity to be applied in the context of employment litigation against foreign states, international organizations and diplomatic and consular agents. Thirdly, it maintains that the interaction between the applicable immunity rules and international human rights law gives rise to a legal regime that can provide adequate protection to the rights of employees. A much-needed study into an under-researched field of international and employment law.

1. Introduction

2. The International Law Immunities from Civil Jurisdiction – An Overview

I. Introduction

II. Basic Concepts: Immunities, Jurisdiction and Substantive Law

III. The Functional Rationale of the International Law Immunities from Civil Jurisdiction

IV. Scope of State Immunity

A. The Sources of the Law of State Immunity

B. The Problematic Distinction between Acta Jure Imperii and Acta Jure Gestionis

V. Scope of International Organisation Immunity

A. The Sources of the Law of International Organisation Immunity

B. The Variety of Standards of International Organisation Immunity

VI. Scope of Diplomatic and Consular Immunity

VII. Conclusions

3. The Undue Persistence of Absolute Immunity in Employment Litigation

I. Introduction

II. Alleged Lack of Subject-Matter Jurisdiction of the Territorial State

A. Exclusive Jurisdiction of Foreign States and International Organisations

B. Exclusive Competence of International Organisations' Internal Remedies

III. Absolute Immunity Based on Functionalist Policy Arguments

IV. Absolute Immunity Based on the Public Nature of Employment

V. Absolute Immunity Based on the Official Nature of Employment

A. Employment as an Official Act of Diplomatic and Consular Agents

B. Employment as an Official Act of International Organisations

VI. Persistence of Absolute Immunity under Express Treaty Provisions

VII. Conclusions: The Need for Limited Immunity Standards in Employment Litigation

4. Restrictive State Immunity Standards in Employment Matters

I. Introduction

II. The Emergence of Employment-Specific Approaches to Restrictive State Immunity

III. Approaches Based on the Nature of the Workplace

A. The 'Workplace Test' in Immunity Instruments and Judicial Practice

B. Drawbacks of the 'Workplace Test' and its Declining Relevance

IV. Approaches Based on the Status and Functions of the Employee

A. The Diffusion of the 'Status and Functions Test' in State Practice

B. The Varied Outcomes of the 'Status and Functions Test'

C. The 'Status and Functions Test' under the UN Convention on State Immunity

V. Approaches Based on the Nationality and Residence of the Employee

VI. Approaches Based on the Subject Matter of the Claim

A. The Distinction between Monetary and Non-monetary Claims

B. The 'Subject-Matter Test' under the UN Convention on State Immunity

VII. Approaches Based on Forum Selection Clauses in the Employment Contract

VIII. Restrictive State Immunity in Employment Matters under Customary International Law

IX. Conclusions

5. Limited Immunity Standards for Employers Other than the State

I. Introduction

II. Limited Standards of International Organisation Immunity in Employment Matters

III. Limited Standards of Diplomatic and Consular Immunity in Employment Matters

A. Distinguishing Official and Non-official Employment of Staff

B. Employment as a Commercial Activity not Subject to Diplomatic Immunity

IV. Conclusions

6. Reconciling Immunities and the Employees' Right of Access to Justice

I. Introduction

II. Approaches Deferring to International Obligations to Grant Immunity to Employers

III. Approaches Requiring the Availability to Employees of Alternative Means of Redress

A. The Diffusion of the 'Alternative Remedies Test' in Judicial Practice

B. The Requirement of Availability of the Alternative Remedy

C. The Requirement of Effectiveness of the Alternative Remedy

IV. The Risk of Remedy Gaps and the Need for a Consistent Approach

V. Conclusions

7. Conclusions

I. Argument No 1: Absolute Employer Immunity Is an Unfounded Legal Myth

II. Argument No 2: Well-Defined Standards of Limited Employer Immunity Can Be Identified

III. Argument No 3: The Equivalent Protection Test Should Apply to All Employer Immunities

IV. The Way Forward: Human Rights Law as an Agent of Coherence