Sovereign Immunity

• Author: International Law Group

Tae Sook Park, a Chinese citizen, worked as a domestic servant for Bong Kil Shin, the Deputy Consul General of the Korean Consulate in San Francisco. Park began working for Shin in 1996 when they were stationed in China, and came with him to the U.S. in 1999 upon Shin's reassignment. Park took care of the three children, cooked, cleaned, and did other household duties. Park also fixed the meals when Shin entertained important official guests at his home.

Park sued the Shins in a California federal court, alleging that she earned less than the U.S. minimum wage, that the Shins refused to take her to the hospital when she was sick, and that the Shins had taken away her passport. The district court dismissed the case based on consular immunity according to the Vienna Convention on Consular Relations (Convention) (April 24, 1963, 21 U.S.T. 77; T.I.A.S. 6820; 596 U.N.T.S. 261). The U.S. Court of Appeals for the Ninth Circuit reverses and remands.

Article 43(1) of the Convention provides that "consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions." Shin certainly qualifies as a consular officer, in the Court's view, but his alleged activities that gave rise to Park's lawsuit were not "acts performed in the exercise of consular functions."

Article 5 of the Convention sets forth 12 specific consular functions, and also contains a "catch-all" provision. It includes "any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or ... which are referred to in the international agreements in force between the sending State and the receiving State." See Article 5(m).

Shin argued that he could not adequately carry out his official functions if he also had to cook, clean and take care of the children. In the Court's view, however, this is not enough to convert the hiring and supervision of a domestic servant into a "consular function."

The Court also notes (1) that Park held an "A-3" visa, which is for personal employees of consular officers; and...