VI. U.S. LAWS AND THEIR ENFORCEMENT: DOMESTIC WORKERS FALLING OUTSIDE GOVERNMENT SCRUTINY AND PROTECTIONS IN VIOLATION OF INTERNATIONAL LAW
The ICCPR states that the rights recognized therein inhere to "all individuals within the [state party's] territory and subject to its jurisdiction,"155 "without discrimination between citizens and aliens,"156 including migrant domestic workers. The ICCPR requires states parties to "ensure" these rights, "adopt such legislative or other measures as may be necessary" to give effect to them, and "ensure . . . an effective remedy" when they are violated.157
Under international law, migrant domestic workers have a right not to be held in servitude; not to perform forced labor; not to be trafficked; to freedom of movement; to freedom of association, including the right to form and join trade unions; to protection from sex discrimination, including sexual harassment; to privacy; to health and a healthy and safe workplace; and to a just remuneration. They also are entitled to equal protection of the laws safeguarding these rights, without discrimination-direct or indirect-based on sex.158
The United States has failed to protect these human rights of migrant domestic workers and to ensure that workers have an "effective remedy" if their rights are violated. Despite a plethora of U.S. labor, health and safety, sexual harassment, and employment legislation, under U.S. law, live-in domestic work is often unregulated-excluded, de facto or de jure, from this legal safety net. Although U.S. law, regulations and governmental policies contain limited provisions that, in theory, could protect the human rights of migrant domestic workers, they are largely unenforced by governmental enforcement mechanisms designed and structured to protect workers outside the home in the "public" rather than "private" sphere. The result is that the primary means by which migrant domestic workers can vindicate their rights is through worker-initiated lawsuits, yet there are numerous obstacles that preclude or inhibit them from successfully pursuing such cases.
U.S. involuntary servitude, forced labor, and trafficking laws can provide relief only for those domestic workers laboring in the most abusive labor conditions and only when those workers report their treatment to government authorities.
The Thirteenth Amendment of the U.S. Constitution as well as statutory law prohibit slavery and "involuntary servitude" but fail to define the terms.159 Until recently, a restrictive definition of involuntary servitude was applied by U.S. courts, limiting involuntary servitude to cases in which a worker was held in service against her will through the use or threat of physical restraint, physical force or harm, or legal coercion.160 With the passage of the Victims of Trafficking and Violence Protection Act of 2000, which includes the Trafficking Victims Protection Act of 2000 (Trafficking Act), U.S. law recognizes that individuals can also be held in servitude through "psychological abuse," "coercion," and other "nonviolent coercion."161 The Trafficking Act does not explicitly amend U.S. servitude law, however, and no consensus yet exists regarding the precise meaning of the term under U.S. law.162
Rather than amending U.S. servitude law, the Trafficking Act, for the first time under U.S. law, criminalizes forced labor. The Trafficking Act defines forced labor as obtaining labor or services through the implicit or explicit threat of "serious harm to, or physical restraint against, that person or another person" or by "abuse or threatened abuse of law or the legal process."163 The legislative history of the Trafficking Act indicates that by recognizing the threat of "serious harm" as a means of obtaining forced labor, U.S. law covers those workers in the most abusive labor conditions that rise to the level of servitude or, at the very least, forced labor under international law.164
The Trafficking Act, also for the first time in U.S. law, criminalizes trafficking of persons, including domestic workers into forced labor and involuntary servitude, and provides protections, benefits, and services for trafficking victims.165 The Trafficking Act adopts a definition of trafficking similar to that recently set forth in the U.N. Trafficking Protocol, defining as a perpetrator of trafficking anyone who "knowingly recruits, harbors, transports, provides, or obtains by any means any person for labor or services in violation of this chapter," which prohibits "peonage, slavery, involuntary servitude, or forced labor."166
The National Worker Exploitation Task Force (Task Force) was formed by Attorney General Janet Reno in April 1998 to "combat the serious problem of modern-day slavery and worker abuse in the United States" and coordinate efforts among federal agencies to investigate, prosecute, and combat "these so-called cases of indentured servitude."167 The Task Force targets a very narrow set of cases, "primarily criminal cases related to slavery situations, the most egregious types of situations."168
The Task Force has also established the Worker Exploitation Task Force Complaint Line (Complaint Line) to receive calls from workers and concerned individuals. 169 The Complaint Line is only available from 9:00 AM-5:00 PM Monday through Friday, though migrant domestic workers in abusive labor relationships often do not have access to private telephones during these hours and, instead, are only free to make such calls on Sundays, their day off. Even during business hours, a recorded message often answers, and workers desiring assistance must either leave a message or call back.170 In addition, according to Aiko Joshi, the only person staffing the Complaint Line, only if a caller alleges an egregious situation such as physical abuse, trafficking, or employer threats preventing a worker from leaving the premises, does Joshi refer the case to the Department of Justice (DOJ) Civil Rights Division for further review.171 If a caller solely alleges "wage and hour" violations, Joshi told Human Rights Watch, the situation is not "abusive . . . enough to warrant civil rights attention" and not a case for the Task Force. Not only is the case not referred to the Task Force for further investigation but, according to Joshi, it is also not referred to the Department of Labor Wage and Hour Division.
The National Labor Relations Act
The ICCPR provides, however, that "[e]veryone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests."173 The "ILO Declaration on fundamental principles and rights at work" has listed freedom of association and the right to bargain collectively as "fundamental rights," which all ILO Members have an obligation to respect and promote.174 The ILO Committee of Experts has explicitly expressed concern over limitations on domestic workers' right to organize.175
The right to organize, bargain collectively, and strike may, at first glance, seem relatively meaningless for live-in domestic workers, given the enormous obstacles to organizing in the sector-no central employment location or common employer, restricted freedom of movement, and limited ability to associate and communicate with others. Despite these obstacles, live-in domestic workers in a number of countries, including France, Greece, Italy, Spain, the United Kingdom, Argentina, Bolivia, Brazil, Colombia, and Paraguay have successfully unionized.
Though Human Rights Watch was unable to find examples of live-in domestic workers' unions in the United States, live-in migrant domestic workers in the United States, even those with special visas, have begun to organize through community-based and direct service organizations, such as: CASA of Maryland, serving Latin American migrant workers in the greater Washington, DC area; the Committee Against Anti-Asian ViolenceWomen Workers Project in New York City; and Andolan, serving the South Asian community in greater New York City. As live-in domestic workers are not covered by the NLRA, any worker involved in these groups could be legally dismissed by her employer for participating in these organizational efforts.
Title VII and Sexual Harassment
The Occupational Safety and Health Act
The Fair Labor Standards Act
In most cases, under the FLSA, employers may deduct from workers' minimum wages the "reasonable cost" of furnishing room and board,185 as defined by Department of Labor regulations.186 Although the State Department Foreign Affairs Manual requires employers of B-1 domestic workers to contract to provide the workers "free room and board,"187 because this provision is not codified in U.S. law or regulations, it cannot be enforced by the Wage and Hour Division or any other governmental agency. In the case of A-3 and G-5 workers, the FAM explicitly allows for "reasonable deductions" for room and board.188
The Wage and Hour Division of the Department of Labor
The Initiatives adopt a targeted enforcement policy through education, outreach, investigations, and litigation,191 focusing on "areas where violations are more often egregious and complaints less common . . . [that] offer a source of employment for vulnerable workers including many immigrants-both legal and undocumented-who are commonly exploited but unlikely to complain."192 According to Ginley, the Wage and Hour Division is trying to protect these low-wage workers by "tak[ing] the national initiative approach to get an investigation without a complaint [and] to increase compliance of employers." 193
The Initiatives have targeted various industries: agriculture, garment, security guard, janitorial services, restaurant, hotel, day-haul, and health care. 194 Ginley told Human Rights Watch that he is unaware of any initiative for live-in domestic workers at any level of the Wage and Hour Division and that he is also unaware of any state wage and hour divisions that have adopted such an initiative.195 Ginley noted that it is "unlikely" that there will be a live-in domestic worker initiative at any level of the Wage and Hour Division in the near future because "locating them and establishing the universe of them . . . is extremely difficult. With garment and agricultural workers, [you] can establish where the work is taking place, but [you do] not have a similar ability to locate domestics. The inability to locate them militates against doing an initiative."196
Without a Low-Wage Worker Initiative to target live-in domestic workers, the Wage and Hour Division from January 1, 1995 through October 1, 1999 initiated only 231 investigations involving "individuals employed in private households." 197 According to the U.S. Bureau of Labor Statistics, there were approximately 847,000 reported "private household workers" in the United States in 1998-including cooks, butlers, child care providers, and 549,000 live-in and live-out domestic workers-198and there are an additional number of unreported private household workers. Assuming the number of reported private household workers remained relatively constant from 1995 through 1999, the Wage and Hour Division during that time initiated investigations into labor violations in only approximately .006 percent of employment relationships involving these workers.199 In contrast, in approximately 98 percent of the cases examined by Human Rights Watch, live-in migrant domestic workers reported receiving wages that violated the Fair Labor Standards Act.
Largely outside government scrutiny, abuse of live-in migrant domestic workers is, in most cases, hidden from government authorities. The burden falls on workers to complain about their treatment to obtain redress. U.S. laws, policies, and regulations, however, make such reporting exceedingly difficult for domestic workers with special visas, establishing deterrents rather than incentives to report abuses.
Workers' Reluctance to File Complaints
There were a variety of reasons mentioned by domestic workers for their failure to file complaints, including: lack of knowledge of the U.S. legal system, exacerbated by social and cultural isolation; fear that employers would report them to the INS and that they would subsequently be removed from the United States; and fear of retaliation by politically powerful employers against their families in their countries of origin.
Several workers described to Human Rights Watch their fear for the welfare of their families abroad if they sued their employers in the United States. The fear of retaliation against family members abroad was also clearly manifest during a Human Rights Watch interview with a Peruvian domestic worker previously employed by a Latin American World Bank official, who repeatedly requested Human Rights Watch for assurances that her identity would remain confidential in this report. She requested that we exclude her name, age, dates of employment, and the city in which she worked because she feared that World Bank officials would match this data with her identity in their records. She said, "I am afraid because [my ex-employer] knows where my family lives. She can punish them . . . I think they will look for me . . . They will know it's me. It's something indescribable-butterflies in my stomach."201
Similarly, Gladys Larbi, a Ghanaian domestic worker employed from May 1999 through September 1999 by an African World Bank official, alleged that after she left her employer and filed a complaint against him with the World Bank, he visited her mother in Ghana and asked her to pressure her daughter to withdraw the complaint. 204 Larbi said that she does not know what her employer said to her mother but that whatever it was, it "made my mother afraid."205 Larbi's employer has denied that he visited Larbi's mother, alleging instead that her mother telephoned him while he was in Ghana to ask him "questions about the circumstances surrounding her daughter's termination."206 Nonetheless, Larbi's mother sent a letter to Larbi in which she wrote, "Tell your lawyer it was revealed to me that [Larbi's employer] wanted you to die in the U.S. because we are poor and can't challenge him."207
Remaining in the United States to Pursue a Legal Remedy
Before the Trafficking Act and the Violence Against Women Act of 2000 (VAWA), included in the Victims of Trafficking and Violence Protection Act of 2000, the only additional immigration option available for a victim of criminal activity to remain in the United States at least during legal proceedings was the S visa, whose conditions live-in migrant domestic workers with special visas rarely meet.212 Since passage of the Trafficking Act and the VAWA, if the migrant domestic worker is involved in a criminal case against her ex-employer, the INS may have two more options available to allow her to remain in the United States, the T and U visas, which grant the worker "lawful temporary status," without a fixed duration, and work authorization.213 Nonetheless, as discussed, even those migrant domestic workers held in egregiously abusive labor conditions rarely make criminal allegations against their employers.
Lack of Public Benefits and Work Authorization
Full Diplomatic Immunity
The State Department has an official policy of requesting a waiver of immunity in all criminal cases, except where "overriding foreign relations, national security, or humanitarian concerns justify such an exemption."220 The policy dictates that when a waiver is refused in cases of "serious offenses" or "recurrent lesser offenses," the State Department will require the alleged perpetrator to leave the United States. 221 According to a State Department official, no case charging the diplomat employer of a domestic worker with criminal conduct has come to its attention.222
With regard to civil claims by domestic workers against employers with full diplomatic immunity, the State Department's official policy is to "intervene" when presented with satisfactory evidence of civil liability and when the matter was raised unsuccessfully with the diplomat and the head of the mission.223 According to a State Department official, only one such civil case has come to the department's attention since 1995.224 In that case, the State Department intervened by facilitating a settlement but, far from requesting waiver of immunity, submitted a statement of interest supporting immunity.225
Even if a civil judgment is entered against an employer with limited immunity, execution of that judgment may be difficult, as the majority of the employer's assets are often abroad. Although a court may enter a garnishment order requiring the defendant's employer to deduct a certain amount from that individual's salary until the judgment is paid in full, a garnishment order is ineffective when the employer is an international organization, as international organizations enjoy "the same immunity from suit and every form of judicial process as is enjoyed by foreign governments."228 International organizations, including the IMF, World Bank, OAS, and U.N., in the words of an IMF official, "assert immunity in the face of a garnishment order."229
155 ICCPR, Article 2(1) (emphasis added).
156 The exceptions to this general principle of universal applicability are set forth in article 25, addressing political participation of citizens, and in article 13, addressing the expulsion of aliens from a territory.
157 ICCPR, Article 2; see also "Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," General Comment 3 to Article 2, U.N. Doc. HRI\GEN\1\Rev.1, July 29, 1994, p. 4.
158 See Appendix III for a discussion of disparate impact sex discrimination.
159 18 U.S.C. _ 1584.
160 Alzanki, 54 F.3d at 1001; see also U.S. v. Kozminski et al., 487 U.S. 931 (1988). Legal coercion is defined as "the use of the law, the legal process, or legal institutions to compel service." Alzanki, 54 F.3d at 1001 n. 6.
161 Public Law 106-386, Secs. 102(b)(6), (13).
162 See Appendix III for a detailed discussion of the treatment of servitude in the Trafficking Act.
163 Public Law 106-386, Sec. 112(a)(2).
164 See Appendix III for a detailed discussion of the treatment of forced labor in the Trafficking Act.
165 Public Law 106-386, Sec. 112(a)(2).
166 Ibid., Sec. 112(a)(2). This definition differs slightly from that set forth in the non-criminal "Definitions" section, but the practical implications of the discrepancy are negligible. Ibid., Secs. 103(8)(B), 112(a)(2).
167 Press Release, "16 Indicted for Recruiting Mexican Women into the United States and Forcing Them into Prostitution: Attorney General Announces Worker Abuse Task Force," April 23, 1998; "Worker Abuse Task Force Fact Sheet," May 1998. Human Rights Watch telephone interview, Department of Labor Representative on the Worker Abuse Task Force, May 2, 2000. The Task Force is comprised of representatives from the Civil Rights Division of the Department of Justice, the Department of Labor, the Department of State, the FBI, the INS, and U.S. Attorney's offices, is co-chaired by the Assistant Attorney General for Civil Rights and the Solicitor of the Department of Labor, and reports to the Attorney General and the Secretary of Labor. "Worker Abuse Task Force Fact Sheet," May 1998.
168 Human Rights Watch telephone interview, INS Official D, May 3, 2000.
169 Human Rights Watch telephone interview, DOJ Official, May 18, 2000; Human Rights Watch telephone interview, Aiko Joshi, Victim Witness Coordinator, Worker Exploitation Task Force, August 28, 2000. The Complaint Line telephone number is 1-888-428-7581.
170 E-mail from Joy Zarembka, Director, Campaign for Migrant Domestic Workers' Rights, to Human Rights Watch, July 20, 2000. For example, Human Rights Watch received a live rather than recorded answer at the Complaint Line only after calling five times on August 28, 2000.
171 Human Rights Watch telephone interview, Joshi, August 28, 2000. The DOJ Civil Rights Division then determines which other Task Force agencies or departments, such as the INS, the Department of Labor Wage and Hour Division, or the FBI, should be involved.
172 NLRA, Sec. 2(3). Section 2(3) states that the term "employee" will not include "any individual employed . . . in the domestic service of any family or person at his home," thereby excluding live-in domestic workers from coverage.
173 ICCPR, Article 22. The Migrant Workers Convention also recognizes the right of migrant workers "[t]o take part in meetings and activities of trade unions and of any other associations established in accordance with law, with a view to protecting their economic, social, cultural and other interests." Migrant Workers Convention, Article 26(1)(a).
174 International Labour Conference, "ILO Declaration on fundamental principles and rights at work, " 86th Session, Geneva, June 18, 1998. Even countries, like the United States, that have not ratified ILO Convention No. 87, Freedom of Association and Protection of the Right to Organize, and ILO Convention No. 98, Right to Organize and Collective Bargaining, are bound by this obligation.
175 International Labor Conference, General Report of the Committee of Experts on the Application of Conventions and Recommendations, 1998, 85th Session, Geneva, 1998, Report III, para. 49
176 42 U.S.C. _ 2000e-2(a)(1).
177 29 C.F.R. _ 1604.11(a); Meritor Savings Bank v. Vinson, 477 U.S. 57, 66 (1986), quoting 29 C.F.R. _ 1604.11(a)(3).
179 29 U.S.C. _ 651(b).
180 29 C.F.R. _ 1975.6.
181 Records must be kept of the worker's name, home address, sex, occupation, and hours worked and wages paid, including deductions for room and board, throughout employment and must be preserved for three years. 29 C.F.R. _ 516.2, 516.5, 516.27.
182 29 U.S.C. _ 206(f), 207(l); 29 U.S.C. _ 213(b)(21). Some local laws, however, including those of New York and Maryland, provide over-time protections for live-in domestic workers.
183 29 U.S.C. _ 216 (b), (c).
184 See 29 U.S.C. _ 206(f), 207(l), 216(a).
185 These deductions may be taken if the facilities are "customarily furnished" by the employer and, in the case of lodging, if a worker's acceptance of the facilities is "voluntary and uncoerced." See 29 U.S.C. _ 203(m); 29 C.F.R. _ 552.100(b); United States Department of Labor Wage and Hour Division, Field Operations Handbook, Sec. 30.09(b) (December 9, 1988). In 1981, a DC Circuit Court of Appeals found in the case of a live-in migrant domestic worker that "[s]ince 'living-in' was a lawful condition of employment and an integral part of the job, it must be found that [her] initial acceptance of board and lodging was 'voluntary and uncoerced.'" Camacho López v. Rodríguez, 668 F.2d 1367, 1380 (DC Cir. 1983).
186 Department of Labor regulations provide employers wishing to deduct the "reasonable cost," defined as not including a profit, of room and board with two options-deduction of the "fair value" of room and board if employers keep and maintain records justifying the deductions or deductions according to formulae in the regulations. 29 C.F.R. _ 531.3(b); 29 C.F.R. _ 552.100(c), (d). The formulae allow employers to credit daily up to 37.5 percent of minimum hourly wage for breakfast, 50 percent for lunch, and 62.5 percent for dinner and to deduct weekly 7.5 times the minimum hourly wage for lodging. 29 C.F.R. _ 552.100(c), (d).
187 9 FAM 41.31 N6.3-2(2) (August 30, 1988).
188 9 FAM 41.21 N6.2(A)(1) (February 9, 2000).
189 Human Rights Watch interview, Michael Ginley, Director, Department of Labor Wage and Hour Division Office of Enforcement Policy, Washington, DC, April 14, 2000.
191 Ibid.; United States Department of Labor Employment Standards Administration. (No date). Strategic Plan FY 1997-2002. [Online]. Available: http://www.dol.gov/dol/esa/public/aboutesa/str-plan/main.htm [October 11, 2000].
192 United States Department of Labor Employment Standards Administration, Strategic Plan FY 1997-2002 . . . [October 11, 2000].
193 Human Rights Watch interview, Ginley, Washington, DC, April 14, 2000.
194 United States Department of Labor Employment Standards Administration, Strategic Plan FY 1997-2002 . . . [October 11, 2000].
195 Human Rights Watch interview, Ginley, Washington, DC, April 14, 2000.
196 Human Rights Watch telephone interview, Ginley, June 27, 2000.
198 United States Department of Labor Bureau of Labor Statistics, Table 3: Employed and experienced unemployed persons by detailed occupation and class of worker, Annual Average 1998 (unpublished 1999) (on file with Human Rights Watch); United States Department of Labor Bureau of Labor Statistics. (No date). 1998-1999 Occupational Outlook Handbook. [Online]. Available: http://stats.bls.gov/oco/ocos175.htm [September 17, 1999].
199 According to Ginley, most of these investigations likely involved domestic workers, either live-in or day workers, but the Wage and Hour Division does not track investigations of live-in domestic workers as a sub-category of "individuals employed by private households." Human Rights Watch telephone interview, Ginley, June 27, 2000. Of those 231 investigations, 192 found back wages due to a total of 249 workers, and employers voluntarily agreed to pay the wages due to 205 of those individuals. Although the other forty-four cases may have resulted in litigation, the Wage and Hour Division does not track this information. Ibid.
200 Human Rights Watch interview, John Donaldson, World Bank External Affairs Counselor, Washington, DC, February 29, 2000.
201 Human Rights Watch interview, Castro, Washington, DC, March 26, 2000.
202 Human Rights Watch interview, Akhatar, Astoria, NY, March 5, 2000.
203 Human Rights Watch telephone interview, Nahar Alam, member of Andolan, April 14, 2000.
204 Human Rights Watch interview, Gladys Larbi, a G-5 domestic worker, Washington, DC, February 15, 2000.
206 Defendant's Answers to Plaintiff's First Set of Interrogatories, (E.D.VA, December 2000), answer 10 (on file with Human Rights Watch).
207 Letter from Larbi's mother to Larbi, March 13, 2000.
208 See Appendix II for a description of the four procedures most commonly used by the INS to allow individuals to remain in the Untied States to pursue their civil claims. These options may also be used by the INS on behalf of individuals involved in criminal cases.
209 Human Rights Watch telephone interview, INS Official B, April 27, 2000; Human Rights Watch telephone interview, INS Official D, March 15, 2000; Human Rights Watch telephone interview, INS Official E, August 2, 2000; Human Rights Watch telephone interview, INS Official F, August 7, 2000; Memorandum from Michael A. Pearson, Executive Associate Commissioner, INS Office of Field Operations, to Regional Directors, March 3, 2000. If an individual remains illegally in the United States for more than six months, she is inadmissible for three years, and if she remains illegally for one year or more, she is inadmissible for ten years. INA _ 212(a)(9)(B)(i).
210 Letter from Christopher Ho and Marielena Hincapié, the Employment Law Center, a Project of the Legal Aid Society of San Francisco; Sara T. Campos, Lawyers' Committee for Civil Rights of the San Francisco Bay Area; Christina Chavez-Cook, Mexican American Legal Defense and Education Fund; Joel Najar, National Council of La Raza; Catherine K. Ruckelshaus, National Employment Law Project; Josh Bernstein, National Immigration Law Center; Michael J. Wishnie, New York University School of Law; Ana Avendaño, United Food and Commercial Workers International Union, to Bill Lann Lee, Acting Assistant Attorney General, DOJ Civil Rights Division, May 11, 2000, p. 2.
211 INS OI 287.3a. In such instances, however, the INS OI provide that no INS action should be taken without review of the District Counsel and approval of the Assistant District Director for Investigations or an Assistant Chief Patrol Agent and that "to the extent possible" the alien should not be removed from the United States without notifying the law enforcement agencies with jurisdiction over the labor or employment law violations.
212 INA _ 101(15)(S)(i). See Appendix II for a description of the S visa.
213 After three years of continuous presence in the United States on either visa, a migrant domestic worker satisfying additional criteria set forth in the law will be eligible to adjust her status to legal permanent resident. Public Law 106-386, Secs. 107(f), 1513(f).
214 8 C.F.R. _ 274a.12.
215 Human Rights Watch telephone interview, Zarembka, Director, Campaign for Migrant Domestic Workers' Rights, July 19, 2000.
216 Public Law 104-193, Sec. 431 (b); Public Law 105-33, Sec. 5571(c); Public Law 106-386, Sec. 107(b)(1). Under the Trafficking Act, a trafficking victim can qualify for public benefits or services if the Attorney General is ensuring her continued presence in the United States in order to prosecute traffickers or if she receives certification from the Secretary of Health and Human Services that she is "willing to assist in every reasonable way in the investigation and prosecution" of trafficking and has made a "bona fide" application for a T visa. Public Law 106-386, Sec. 107(b)(1).
217 Even employers with full diplomatic immunity, however, have a duty "to respect the laws and regulations of the receiving State." Vienna Convention on Diplomatic Relations, 500 U.N.T.S. 95, April 18, 1961, Article 41(1).
218 Vienna Convention on Diplomatic Relations, Articles 31, 37. A diplomat is understood to be "the head of the mission or a member of the diplomatic staff of the mission." Ibid., Article 1(e). "Establishment of Permanent Headquarters in New York; Agreement Between United Nations and United States," Joint Res., Ch. 482, 61 Stat. 756, August 4, 1947, Article V, Sec. 15 (U.N. Headquarters Agreement); "Extension of Diplomatic Privileges and Immunities to Permanent Observers to Organization of American States," Executive Order No. 11931, August 3, 1976, 41 F.R. 32689. The immunity is specifically extended to principal resident representatives and resident representative with the rank of ambassador or minister plenipotentiary of U.N. member nations and their staffs, principal resident representatives of U.N. specialized agencies and their staffs, permanent observers to the OAS and their staffs, and representatives of OAS member nations and their staffs.
219 Vienna Convention on Diplomatic Relations, Article 32. Even if the waiver is obtained and legal proceedings are initiated, a separate waiver of immunity must later be obtained to execute any civil judgment.
220 2 FAM 232.4 (February 28, 1991).
221 2 FAM 233.3(a)(3) (February 28, 1991).
222 Human Rights Watch interview, State Department Official A, Washington, DC, March 1, 2000.
223 2 FAM 234.2(b)(1)-(3) (February 28, 1991).
224 Human Rights Watch telephone interview, State Department Official B, May 24, 2000.
225 Statement of Interest of the United States, Ahmed, Civil No. 99- . . . (S.D.N.Y. March 31, 2000).
226 Vienna Convention on Diplomatic Relations, Article 37(2). Family members of administrative and technical staff of diplomatic missions do not enjoy civil or administrative immunity under the Vienna Convention on Diplomatic Relations because they do not have "duties" with respect to the diplomatic missions. It is unclear under the Convention, however, whether a civil or administrative judgment can be enforced against administrative and technical staff and their families. Though the Convention explicitly waives civil and administrative immunity, it does not correspondingly explicitly waive immunity from enforcement of judgments in those cases. Ibid., Articles 31(3), 37(2). See Eileen Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations (Oxford: Clarendon Press, 1998), p. 335.
227 Vienna Convention on Consular Relations, 596 U.N.T.S. 262, April 24, 1963, Article 43; 22 U.S.C. _ 288d(b). Family members of international organization or consular officials enjoy no immunity, as they do not have any "official capacity" with respect to such organizations or offices.
228 22 U.S.C. _ 288a(b). International organizations enjoy "the same immunity from suit and every form of judicial process as is enjoyed by foreign governments," except that the international organizations can expressly waive their immunity.
229 Human Rights Watch interview, IMF Official, Washington, DC, March 31, 2000; see also Donna Zalusky, World Bank Official, at a meeting between the Campaign for Migrant Domestic Workers' Rights and the IMF-World Bank Working Group, Washington, DC, attended by Human Rights Watch, October 23, 2000.