On August 18, 2016, the Constitutional Court of the Republic of Colombia (Constitutional Court or Court) rendered a significant decision in the Garcia de Borissow and Others case on issues of immunity from execution, diplomatic protection, and objections to customary international law in its review of two combined cases brought by former local employees against the embassies of the Lebanese Republic and the United States of America in Bogotá.Footnote ¹ While upholding the diplomatic missions’ immunity from execution of lower court judgments awarding monetary sums, the Constitutional Court instructed the Colombian Ministry of Foreign Affairs (Foreign Ministry) to pursue recovery of such amounts either by diplomatic means or through enforcement of those judgments in Lebanese and American courts. The decision is both unique and problematic as a matter of international and domestic law.

The cases arose in the context of the common practice of states employing local nationals to perform various kinds of service at their embassies (and other diplomatic and consular missions) in other states. The plaintiffs, Ms. Adelaida Garcia de Borissow and Mr. Omar Castaño, both Columbian nationals, worked as local staff at the embassies of the Lebanese Republic and the United States of America, respectively.Footnote ² However, Ms. Garcia de Borissow had not been enrolled in Colombia's national social security system for retirement pensions (a requirement for all employers under Colombian law); moreover, her contract was unilaterally terminated on the basis that Lebanese law only allows individuals to work until the age of sixty years old.Footnote ³ She sought compensation for unfair dismissal in addition to the payment of the retirement pension emoluments to which she was entitled. Mr. Castaño alleged that he had been wrongfully forced to resign because of “moral pressure against him” and sought to recover his last monthly salary, additional monetary benefits and compensation for unfair dismissal.Footnote ⁴ They brought separate actions against the two diplomatic missions in the Supreme Court of Justice's Labor Chamber (Labor Chamber), seeking a judicial declaration of defendants’ obligation to pay original sums plus compensation (paras. 4.1.2, 4.2.2).

In each case, the Labor Chamber determined that a “true labor relationship”Footnote ⁵ had existed between plaintiffs and respondents and that each diplomatic mission was accordingly obligated to pay a specific amount to its respective plaintiff. Unlike the Embassy of the United States of America (which had remained silent throughout the proceedings), the Embassy of the Lebanese Republic unsuccessfully contested the Labor Chamber's jurisdiction on the basis of the principle of “immunity of diplomatic agents.”Footnote ⁶ Neither of the respondents complied with the judgments.

The plaintiffs then independently filed new proceedings in the same court seeking to enforce those judgments. The Labor Chamber rejected both requests in limine on the basis of the defendants’ absolute immunity from execution, which it said “amounted, as established by the Vienna Convention on Diplomatic Relations, into the impossibility of adopting coercive measures against the Embassies to obtain fulfillment of the judicial decisions” (para. 4.1.5). In response, the plaintiffs filed independent “tutelage actions”Footnote ⁷ against the Labor Chamber, arguing that by rejecting their requests for enforcement of the judgments, the Labor Chamber had violated their fundamental rights under the Colombian Constitution to due process and access to justice. In accordance with normal procedure in tutelage actions, the cases were assigned to different courts: Mr. Castaño's suit against the Embassy of the United States of America was sent to the Disciplinary Chamber of the Superior Council of the Judiciary, and Ms. Garcia de Borissow's suit against the Embassy of the Lebanese Republic was referred to the Criminal Chamber of the Supreme Court of Justice.Footnote ⁸ Both courts denied the claims.Footnote ⁹

Those decisions were also appealed. Mr. Castaño's case was sent to the Fifth Chamber of the Superior Council of the Judiciary and Ms. de Borissow's case to the Civil Chamber of the Supreme Court of Justice.Footnote ¹⁰ These courts reached different conclusions: the tutelage action proceeding in Mr. Castaño's case was annulled, while the judgment in Ms. de Borissow's case was confirmed.Footnote ¹¹ Given the conflicting results, the decisions were then selected for review by the Constitutional Court under its authority for “jurisprudential unification.”Footnote ¹²

In order to determine whether the state may enforce judicial decisions of its courts against accredited diplomatic missions, the Constitutional Court noted that it must first establish “whether there are limitations or restrictions, under customary international law, to immunity from execution” (para. 17). The Court recalled the distinction between acta jure imperii and acta jure gestionis, which it said contributed to the development of the principle of restrictive immunityFootnote ¹³ (paras. 6–7). Acknowledging that a few states still adhere to absolute immunity, it concluded that contemporary international practice reflects a clear trend toward “the consolidation of the thesis of restrictive immunity” (para. 8). It referred specifically to the work undertaken by the International Law Commission (ILC) on the question of sovereign immunity, which eventually led to the adoption of the 2004 UN Convention on the Jurisdictional Immunities of States and Their Property. Although that treaty has not yet entered into force (and Colombia has neither signed nor ratified), the Constitutional Court affirmed that where its provisions “correspond to the codification of customary international law, they are binding upon States as custom” (para. 11).

The Constitutional Court also observed that the development of international law does not depend on “logic or reason” but rather on the political will of states to undertake international obligations vis-à-vis third states. Relying on the International Court of Justice's (ICJ) judgment in the Fisheries case,Footnote ¹⁴ the Court noted that custom requires the agreement of states, which (in light of the consensual nature of international customary law) allows for the recognition of persistent objectors (para. 28).

Since the plaintiffs’ claims referred to the enforcement of judicial decisions ordering the payment of certain monetary amounts, the Constitutional Court stated it was required to establish whether there was sufficient evidence of a customary norm permitting Colombia to execute or attach the property of other states (para. 29). Relying heavily on its own understanding of the ICJ's decision in Jurisdictional Immunities of the State,Footnote ¹⁵ the Court found that it was bound by an obligation to uphold the immunity of another state's property from execution. With no elucidation or argumentation as to its conclusion, it also declared that there was “no evidence” that Colombia, the Lebanese Republic, or the United States of America were “persistent or subsequent objectors to the principle of absolute immunity from execution” (para. 30, emphasis added).

In the Constitutional Court's view, only three exceptions exist to the principle of immunity from execution: (1) when the property is used for non-official, non-public service or commercial activities; (2) when the state has consented to the execution or coercive measure in question; or (3) when the state has allocated the property for payment of the relevant debt (para. 34). While execution is permissible against property used for jure gestionis acts, the Court expressly stated that the attachment or execution of property of another state would in any case amount to a violation of Colombia's international obligations (para. 36). However, it said, the plaintiffs in these cases had not met the “minimum burden” of identifying such property and demonstrating that it was used for such purposes. Accordingly, the Court concluded, it lacked jurisdiction to order the enforcement of the judgments against the two diplomatic missions (para. 46).

At the same time, the Constitutional Court observed, the limitations flowing from international law “cannot result in absence of protection for Colombian citizens and nationals” (para. 36). If the domestic legal system of the states whose diplomatic missions have engaged in unlawful conduct provides for a mechanism to recognize and enforce foreign judgments, then, in the Court's view, a remedy exists to protect the fundamental constitutional rights of plaintiffs without breaching international obligations (para. 39). In the case of the Lebanese Republic, the Court noted, its Civil Procedural Code provides for exequatur proceedings to enforce foreign judgments. In the case of the United States of America, it said, the decisions in Hilton v. Guyot and Erie Railroad Co. v. Tompkins Footnote ¹⁶ provide, in principle, for the “acceptance” of the recognition and enforcement of foreign judgments (paras. 40–41).

Accordingly, the Constitutional Court ordered the Foreign Ministry to initiate either exequatur proceedings or any other action available under American or Lebanese law in order to “obtain the enforcement of the decisions of the Supreme Court of Justice—Labor Chamber—against the diplomatic missions of both States” (para. 43). Noting that such proceedings might result in complex, expensive, and delayed litigation (and because protection of the fundamental constitutional rights of the plaintiffs must be expedited), the Constitutional Court set one year as the maximum period by which the Foreign Ministry must obtain appropriate decisions from the relevant foreign judicial authorities (para. 44; Third Order). This “one-year timeframe,” it said, is aimed at achieving “equity, justice and reasonableness” by balancing the protection of individual rights with the duty of complying with international obligations. It will also provide certainty to plaintiffs that the state will protect their constitutional rights, reinforcing the legitimate confidence of citizens in their government, as well as the principle of good faith (para. 44).

The Constitutional Court also observed that since the results of the foreign judicial proceedings cannot be predicted, two situations might occur: (1) the relevant foreign court might not adopt any decision within the one-year deadline; or (2) that court might not recognize or enforce the “compulsory nature of the decisions” of the Labor Chamber. In either situation, the constitutional rights of the plaintiffs would remain “unprotected.” Because the president of the republic, in his capacity as head of state, is the one in charge of signing treaties, the Court ordered the Foreign Ministry

Finally, the Constitutional Court urged the President and the Foreign Ministry to

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The Constitutional Court is no stranger to questions of international law. Under the Colombian Constitution, it has the automatic responsibility of reviewing treaties (including those to which Colombia is a signatory and those to which Colombia intends to accede) after they have been approved by an Act of Congress but before the executive branch deposits its instrument of ratification or accession. This is done in order to ensure that Colombia's obligations under the relevant treaty do not conflict with its constitutional provisions.Footnote ¹⁷ Under the procedure of “actio popularis of unconstitutionality,” it can also consider challenges to an (unreviewed) treatyFootnote ¹⁸ on grounds of non-compliance with constitutional provisions and, as in the current case, by review of lower court decisions through tutelage actions. This review may be used to guarantee the protection of individual rights arising out of, inter alia, a human rights treaty in force.

Moreover, the Colombian Constitution contains multiple references to international law and its sources. Ratified human rights treaties are ranked at the same level as the Colombian Constitution, serving as a “parameter of interpretation” for the Constitutional Court when examining the conformity of laws and regulations to constitutional provisions. International humanitarian law (when applicable) has full domestic force, irrespective of the ratification of particular Geneva Conventions. Treaties establishing frontiers, borders, and/or limits enjoy a “special constitutional status.”Footnote ¹⁹ The Constitutional Court has said that jus cogens, or peremptory norms, prevail over contrary or inconsistent constitutional provisions and that Andean communitarian law displaces all ordinary laws.Footnote ²⁰ All other treaties in force for Colombia (including those of an economic, trade or investment nature) are at the same level as ordinary laws, thus ranking not only below the Constitution but also beneath statutes and the above-referenced international instruments. “Principles of international law” have full domestic force, except for customary international law toward which Colombia is a persistent or subsequent objector, general principles of law recognized by other civilized nations but not by Colombian law, or principles of international law where no conclusive determination exists regarding their acceptance “on the basis of the State of Colombia's unequivocal practice.”Footnote ²¹

Consequently, it was not exceptional for the Constitutional Court in this case to apply its understanding of the customary international law of immunities to overrule decisions of the lower courts. Yet certain aspects of the decision are open to question. First, the Constitutional Court clearly erred in asserting a “complete lack of evidence” that the United States of America is opposed to the principle of absolute immunity from execution, since its adherence to the restrictive theory is well-known. At the very least, that statement is incomplete, given the various provisions of American law that do in fact permit judgment creditors to enforce their judgments against the property of (foreign) states and their “agenc[ies] and instrumentalit[ies].”Footnote ²²

Similarly, the Constitutional Court's treatment of the 2004 UN Convention on the Jurisdictional Immunities of States and Their Property as reflecting customary international law seems overbroad, inasmuch as the Court made no effort to distinguish the specific provisions that constitute binding rules applicable to all states from those representing progressive development and codification applicable only to states parties. In point of fact, only the Lebanese Republic is currently a party to that Convention; neither Colombia nor the United States of America has signed or ratified. The Court's statement that the principles recognized by the Convention are binding as customary international law may be taken as rendering the eventual ongoing assessment of the viability of Colombia's accession pointless. If “the treaty's customary international law provisions bind the State” without further clarification as to the rules that may have only become crystallized with the adoption of the treaty, the state's permission to become a subsequent objector may be impaired. The Constitutional Court's prior decisionsFootnote ²³ —and even this Judgment's dicta—recognized such a prerogative. In practice, however, the broad and far-reaching scope of the affirmation is difficult to reconcile with the precedent.

Perhaps most importantly, the Constitutional Court seems to have conflated the concepts of diplomatic and sovereign immunity.Footnote ²⁴ They are quite distinct, if often confused. Under Article 22 of the Vienna Convention on Diplomatic Relations (1969), the diplomatic mission is “inviolable” and its premises, furnishings, other property, and means of transport are entitled to immunity from “search, requisition, attachment or execution.”Footnote ²⁵ However, diplomatic missions are typically considered integral components of the sending state rather than separate entities with their own “legal personality.” In addition, employment relationships and other contractual undertakings are normally assumed in the name of the state itself, so that legal proceedings arising from such agreements must be brought (and any resulting judgments enforced) against the state itself. Accordingly, the relevant legal framework is one of sovereign (not diplomatic) immunity, as the Court's references to the 2004 UN Convention on the Jurisdictional Immunities of States and Their Property suggests.

The Constitutional Court does not discuss—at all—what types of duties the two plaintiffs were performing. An analysis of whether the contracts contemplated duties involving official functions (therefore making the state a party) would have been appropriate. It appears that Ms. Borissow served as a “Secretary” within the Embassy of the Lebanese Republic and might therefore have been performing duties legitimately characterized as sovereign or governmental (acta jure imperii), while Mr. Castaño seems to have been employed as a “Real Estate Assistant” within the Embassy of the United States of America so that his functions might properly have been characterized as acta jure gestionis. These distinctions have proven relevant in the context of the examination of employment disputes at international courts.Footnote ²⁶ Without a clear explanation of their duties, however, it is difficult to comprehend the Court's rationale for its decision, especially considering its earlier distinction between acta jure imperii and acta jure gestionis.

No one disputes that relying on immunity to evade contractual obligations is not a minor matter. Under Article 33(3) of the Vienna Convention on Diplomatic Relations, states must comply with local labor and social security legislation if the relevant requirements are met. But the Constitutional Court evidently did not consider whether a state (acting through its diplomatic representation) is obliged in all cases to comply with the labor, social security, and similar requirements of the host state when it hires local nationals.

Clearly, the most unusual and controversial matter is the Constitutional Court's order to the Foreign Ministry to initiate proceedings abroad with the aim of enforcing the Labor Chamber's decisions regarding the defendants’ pecuniary obligations and/or to espouse the claims of its nationals to compensation. At first sight, it may make practical sense to require the government to “step into the shoes” of its citizens, since it might well be the only way effectively to guarantee the rights of the individuals involved (especially considering the expense of bringing enforcement actions themselves in the states concerned). It certainly would not be the best approach in all cases, where other mechanisms of international dispute settlement might be available. The decision also seems to overlook the jurisdictional and other technical difficulties which Colombia may confront in attempting to bring suits in foreign courts on behalf of its citizens.

The Constitutional Court's judgment appears to create a domestic obligation for Colombia to exercise “diplomatic protection” in cases where the fundamental constitutional rights of its nationals or citizens have been breached by the conduct of diplomatic missions (or states themselves) whose assets are entitled to immunity from execution in Colombia. This approach seems to turn “diplomatic protection” on its head. As the ILC has noted, international law imposes no such obligation (although the internal law of a state may oblige it to extend diplomatic protection to its nationals).Footnote ²⁷ At least in its classic sense, the right of diplomatic protection entitles a state to take up such issues bilaterally when another state has abused a right owed under international law to its citizens within the latter's territory or jurisdiction. The Constitutional Court's decision, although not prohibiting bilateral negotiations, fails to acknowledge—as a result of its “exequatur-centric approach”—that international dispute settlement may often occur through other peaceful means for the settlement of disputes.