Article 3(3)(a) of Labour Proclamation No. 1156-2019 states that its applicability may be determined not to apply by a Council of Ministers’ regulation or by international agreements signed by Ethiopia. The provision itself does not explicitly or implicitly exclude any employee. So far, the Council has not issued any exclusionary regulation under its authority, nor has the scope of the law’s applicability been limited by international agreements.
In excluding the applicability of the Labor Proclamation to international organizations and foreign diplomatic missions, immunity from suit holds the primary position. Cases that bypass this protection and proceed to ordinary litigation are negligible. Therefore, given the very narrow circumstances under which the Proclamation would apply to these organizations and missions from the outset, it would not be necessary to sign an international agreement or issue a Council of Ministers’ regulation to exclude the Proclamation’s applicability, as stated in Article 3(3)(a).
A bilateral or international agreement becomes necessary to grant immunity from suit. A bilateral agreement granting immunity from suit deprives the country’s courts of jurisdiction. Therefore, if there is a bilateral agreement signed between the main organization and Ethiopia that grants immunity from civil or criminal prosecution to an intercontinental or international organization operating a branch in Ethiopia, the organization’s employees cannot file labor disputes in Ethiopian courts. (Applicant Ato Alemayehu Mekonnen and Respondent Desert Locust Control Organization for Eastern Africa, December 21, 2008 E.C., S.C. File No. 117390, Vol. 19).
The principles and values of immunity from suit for international organizations and foreign diplomatic missions are rooted in universally accepted governing rules that have evolved over time, and these are categorized under the legal branch known as Customary International Law. While most rules concerning immunity from suit have been replaced by international agreements over time, customary international law still applies to matters not covered by these agreements. Here, immunity from suit does not mean that the door is completely closed to filing lawsuits against these organizations and institutions under any circumstances. In very narrow circumstances, immunity from suit does not serve as a defense. The detailed implementation of these circumstances is beyond the scope of this book. However, we will generally examine the international agreements issued concerning immunity from suit in various types of relationships, including labor and employment matters.
International Organizations
An international agreement granting immunity from suit to the United Nations was issued in 1946. This agreement, known as the Convention on the Privileges and Immunities of the United Nations, stipulates the Organization’s immunity from suit in Article 2, Section 2, as follows:
“The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.”
Indeed, even before the issuance of this agreement, the United Nations Charter (UN Charter) recognized the Organization’s immunity from suit and privileges. Article 105 of the Charter, which grants these rights, is general in content (not containing detailed implementation matters) and links immunity from suit with the Organization’s objectives and functions. The international agreement is considered a detailed implementing instrument of Article 105 of the Charter. Various international institutions under the United Nations, like their parent organization, also enjoy immunity from suit, and the Convention on the Privileges and Immunities of the Specialized Agencies, issued in 1947, grants them immunity from being sued in courts in various countries.
Diplomatic Missions
Foreign diplomatic missions include embassies, permanent representative offices, consular offices, honorary consular offices, and similar entities. These are representatives of a sovereign state. The immunity from suit is granted to the state they represent. Customary International Law fully distinguishes between relationships of a purely commercial nature and private acts from national, sovereign, or governmental functions. States (and therefore diplomatic missions) enjoy immunity from suit only in the latter type of functions. The applicable international agreement concerning the immunity from suit of states (and therefore diplomatic missions) is the United Nations Convention on Jurisdictional Immunities of States and Their Property, issued in 2004. In addition to the general provisions it contains concerning immunity from suit, it includes a special provision determining the implementation of the right during employment relationships.
Execution of Judgment
Even if a court hears a case on its merits and renders a decision against international organizations and diplomatic missions, either by their own waiver or in narrow circumstances where their immunity from suit does not apply, the decision does not become immediately enforceable. Immunity from Suit and Immunity from Execution are both considered separately. According to the international agreements mentioned above and the widely accepted principles of customary international law, a judgment rendered against these entities will not be executed unless various preconditions and criteria are met. For example, execution cannot proceed against property essential for the organizations’ purposes. Furthermore, if the judgment was rendered in violation of international laws and agreements concerning immunity from suit, there will be no basis for its enforcement.
In a labor dispute case heard in cassation (Applicant Ato Alemayehu Olana and Respondent United Nations Development Programme (UNDP), November 10, 2007 E.C., S.C. File No. 98541, Vol. 17), a request to enforce a judgment rendered in the respondent’s absence was rejected. The respondent is an international institution under the United Nations. According to Article 3, Sections 3 and 4 of the Convention on the Privileges and Immunities of the Specialized Agencies, these institutions are granted immunity from being sued or subjected to execution in court. Therefore, the denial of the judgment’s enforcement is consistent with the provisions of the agreement.
However, in S.C. File No. 98541, the reason for rejecting the execution request was not the fundamental principle of immunity from execution, but Article 3(3)(a) of the Proclamation. Yet, Article 3(3)(a) merely indicates the possibility that the Labor Proclamation may not apply to international organizations and diplomatic missions; it does not directly or indirectly exclude its applicability. There is no agreement signed by Ethiopia or a regulation issued by the Council of Ministers concerning this. Furthermore, the utility of the provision is before, not after, judgment. While both points are important for understanding the correct content of the provision, they are not necessary for determining the Proclamation’s applicability to the said organizations. Immunity from suit must be addressed before discussing Article 3(3)(a). A labor dispute lawsuit filed under the Proclamation will inevitably be dismissed due to the organizations’ immunity from suit, leaving no issue to be addressed by the provision.
This analysis highlights the complex interplay between domestic labor law and international law, particularly the principles of sovereign immunity and diplomatic immunity. These immunities are designed to protect the functioning of states and international organizations, but they can create a challenge for individuals seeking to enforce their labor rights. The distinction between immunity from suit (preventing a case from being heard) and immunity from execution (preventing a judgment from being enforced) is crucial, as a waiver of one does not automatically imply a waiver of the other. The Cassation Bench’s reasoning in S.C. File No. 98541, while reaching the correct outcome, demonstrates a potential misapplication of the domestic exclusion provision in place of a direct reliance on international immunity principles.