PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CORAZON TABION,
Plaintiff-Appellant,

v.                                                                  No. 95-1732

FARIS MUFTI; LANA MUFTI,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis III, District Judge.
(CA-94-1281-A)

Argued: November 2, 1995

Decided: January 17, 1996

Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Michael and Judge Motz joined.

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COUNSEL

ARGUED: Joseph John Aronica, MUDGE, ROSE, GUTHRIE,
ALEXANDER & FERNDON, Washington, D.C., for Appellant. Earl
Ferdinand Glock, III, Washington, D.C., for Appellees. ON BRIEF:
Edward Leavy, Edith R. Albert, MUDGE, ROSE, GUTHRIE, ALEX-
ANDER & FERNDON, Washington, D.C.; John P. Connolly, LAW
OFFICES OF JOHN P. CONNOLLY, Alexandria, Virginia, for
Appellant.

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OPINION

MURNAGHAN, Circuit Judge:

The Vienna Convention on Diplomatic Relations, Apr. 18, 1961,
23 U.S.T. 3227, T.I.A.S. No. 7502, provides nearly absolute civil and
criminal immunity for diplomatic personnel stationed in foreign
countries.1 That Appellees Faris and Lana Mufti are covered by the
Vienna Convention because of Mr. Mufti's position as a First Secre-
tary, and later Counsellor, of the Jordanian Embassy in Washington,
D.C., is evident. The question presented here is whether the diplo-
matic immunity afforded by the Vienna Convention protects the Muf-
tis from a civil lawsuit brought by their domestic servant.

I.

Appellant Corazon Tabion, a Philippine national, performed
domestic services in the Muftis' Virginia home for more than two
years. Believing that her low pay and long hours violated the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., Tabion sued
the couple in federal district court. She stated numerous complaints
arising from the employment relationship, including breach of con-
tract, intentional misrepresentations in employment, false imprison-
ment, violations of 42 U.S.C. §§ 1981 and 1985(3), and FLSA
infractions. Tabion sought compensatory damages, punitive damages,
attorney's fees and costs.

After a hearing, the district court judge found the Muftis protected
by diplomatic immunity and quashed their service of process. The
judge determined that the phrase "commercial activity" as used in one
of the three exceptions to civil immunity enumerated in Article 31 of
the Vienna Convention did not cover the Muftis' employment rela-
tionship with Tabion. The judge therefore ruled the suit barred by the
Vienna Convention. Tabion has appealed, challenging the court's
interpretation and conclusion by arguing that her domestic service for
_________________________________________________________________
1 The Vienna Convention became applicable to the United States by the
Diplomatic Relations Act, 22 U.S.C. §§ 251-59, which repealed earlier
laws governing diplomatic immunity. Both the United States and Jordan,
as well as nearly 150 other countries, have signed the treaty.

                   2
the Muftis amounted to commercial activity exercised outside the
Muftis' official functions. Because the determination is one of law,
we review the district court's ruling de novo . Eckert Int'l, Inc. v. Gov-
ernment of Fiji, 32 F.3d 77, 79 (4th Cir. 1994).

II.

Treaties are contracts between sovereigns, and as such, should be
construed to give effect to the intent of the signatories. United States
v. Stuart, 489 U.S. 353, 365-66 (1989); Nielsen v. Johnson, 279 U.S.
47, 51 (1929). The court should look at the treaty's language, consid-
ering the context in which the words were used. Eastern Airlines, Inc.
v. Floyd, 499 U.S. 530, 534 (1991). Treaties generally are liberally
construed: courts "may look beyond the written words to the history
of the treaty, the negotiations, and the practical construction adopted
by the parties" to ascertain the meaning of a difficult or unclear pas-
sage. Id. at 535 (internal quotation omitted); see also Nielsen, 279
U.S. at 51-52.

The Vienna Convention provides diplomats with absolute immu-
nity from criminal prosecution and protection from most civil and
administrative actions brought in the "receiving State," i.e., the state
where they are stationed. Article 31 lists three exceptions to a diplo-
mat's civil immunity. Chief among them, and at issue here, is the
elimination in Article 31(1)(c) of immunity from actions "relating to
any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions." 23 U.S.T.
at 3241. Also relevant to the present matter is Article 42's pronounce-
ment that "[a] diplomatic agent shall not in the receiving State prac-
tice for personal profit any professional or commercial activity." Id.
at 3247.

Nowhere in the Vienna Convention is the term "commercial activ-
ity" defined.2 Yet we must determine the meaning of the phrase in
order to resolve the present dispute. Tabion contends that the lan-
guage is plain. Because "commerce" is simply the exchange of goods
_________________________________________________________________
2 Nor does there appear to be any published judicial opinion in the
United States construing the phrase as it is used in the Vienna Conven-
tion.

                     3
and services, she argues, "commercial activity" necessarily encom-
passes contracts for goods and services, including employment con-
tracts.

The term "plain meaning" is frequently employed to characterize
language of seemingly unambiguous clarity. While easily understood
as denoting the unquestioned meaning of a text, the term often proves
difficult to apply as used in specific individual cases. Seldom does
language carry one true and undisputed meaning.

The phrase "commercial activity" is no exception. Tabion received
some pay,3 and she undoubtedly was active in her work for the Muf-
tis. Looking solely at the words "commercial" and "activity," then, the
phrase "commercial activity" could logically encompass the Muftis'
dealings with Tabion. But such a literal manner of interpretation is
superficial and incomplete, and, we believe, yields an incorrect ren-
dering of the meaning of "commercial activity" as used in the Vienna
Convention. When examined in context, the term "commercial activ-
ity" does not have so broad a meaning as to include occasional service
contracts as Tabion contends, but rather relates only to trade or busi-
ness activity engaged in for personal profit. Accepting the broader
meaning fails to take into account the treaty's background and negoti-
ating history, as well as its subsequent interpretation. It also ignores
the relevance of the remainder of the phrase--"outside his official
functions."

Prior to adoption of the Vienna Convention, American law ex-
tended diplomats immunity from civil suit as absolutely as immunity
from criminal jurisdiction: both were without exception. Such com-
prehensive diplomatic immunity was part of the Act of April 30, 1790,4
which remained in force until 1978, when Congress passed the Diplo-
matic Relations Act and made the Vienna Convention the governing
law in the United States.5 The agreement itself makes clear in its pre-
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3 Although from Tabion's point of view, the pay was insufficient.
4 Ch. 9, §§ 25-27, 1 Stat. 117-8 (repealed 1978).
5 The Vienna Convention entered into force for the United States in
1972. As noted above, the Diplomatic Relations Act repealed earlier laws
and left the Vienna Convention as the sole law governing diplomatic
immunity in the United States.

                    4
amble that the purpose of its statements of privilege and immunity are
"not to benefit individuals but to ensure the efficient performance of
the functions of diplomatic missions as representing States." 23
U.S.T. at 3230. Although the drafters of the Vienna Convention rec-
ognized that a diplomat's engaging in professional or commercial
activity for profit in the receiving state had always been contrary to
international standards of conduct, they decided to provide explicit
language to make abundantly clear that such conduct was undiplo-
matic. They did so in Article 42. See 23 U.S.T. at 3247.

The United States Department of State narrowly interprets the Arti-
cle 31(1)(c) exclusion based on the agreement's negotiating history.
In a statement of interest filed in the present matter, the State Depart-
ment concluded that the term "commercial activity" as used in the
exception "focuses on the pursuit of trade or business activity; it does
not encompass contractual relationships for goods and services inci-
dental to the daily life of the diplomat and family in the receiving State."6
Statement of Interest of the United States at 4. Substantial deference
is due to the State Department's conclusion. See Sumitomo Shoji
America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982); Demjanjuk
v. Petrovsky, 776 F.2d 571, 579 (6th Cir. 1985), cert. denied, 475 U.S.
1016 (1986), judgment vacated, 10 F.3d 338 (6th Cir. 1994); Spacil
v. Crowe, 489 F.2d 614, 619 (5th Cir. 1974).

Legal commentators similarly characterize the exception as cover-
ing only a diplomat's participation in trade or business, and not his
everyday transactions. One scholar has concluded that, while Article
_________________________________________________________________
6 Federal government officials have consistently interpreted the provi-
sion narrowly, advising Congress during its consideration of the Vienna
Convention in 1965 and passage of the Diplomatic Relations Act in 1978
that the "commercial activity" exception was"minor" and "probably
meaningless" because it merely exposed diplomats to litigation based
upon activity expressly prohibited in Article 42. See, e.g., Diplomatic
Immunity: Hearings on S. 476, S. 477, S. 478, S. 1256, S. 1257 and H.R.
7819 Before the Subcomm. on Citizens and Shareholders Rights and
Remedies of the Senate Comm. on the Judiciary, 95th Cong., 2d Sess. 32
(1978); see also The Diplomatic Privileges and Immunities Act: Hear-
ings on H.R. 3036 Before the Subcomm. on Int'l. Operations of the
House Comm. on Foreign Affairs, 100th Cong., 2d Sess. 268-69 (1988)
(characterization by State Department of exclusion as narrow).

                     5
31(1)(c)'s exception is broadly drawn, "it is not intended to cover
commercial contracts incidental to the ordinary conduct of life in the
receiving State." Eileen Denza, Diplomatic Law: Commentary on the
Vienna Convention on Diplomatic Relations 166-67 (1976). Restate-
ment (Third) of the Foreign Relations Law of the United States § 464,
Reporter's Note 9 (1986), states:

          The denial of immunity in cases arising out of private com-
          mercial or professional activities has little significance for
          the United States since the United States forbids its diplo-
          matic officers to engage in commercial or professional
          activities unrelated to their official functions, and in general
          does not permit such activities by foreign diplomats in the
          United States.

It is evident from the foregoing authorities that the phrase "com-
mercial activity," as it appears in the Article 31(1)(c) exception, was
intended by the signatories to mean "commercial activity exercised by
the diplomatic agent in the receiving State outside his official
functions."7 Day-to-day living services such as dry cleaning or
domestic help were not meant to be treated as outside a diplomat's
official functions. Because these services are incidental to daily life,
diplomats are to be immune from disputes arising out of them.

Finally, Tabion claims a violation of her rights under the Equal
Protection Clause of the United States Constitution. Because Tabion
_________________________________________________________________
7 Despite Tabion's suggestion to the contrary, we decline to use the
Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.§ 1602 et seq., as
an interpretive guide for the Vienna Convention. The FSIA is a statute
which establishes the framework for determining when federal or state
courts in the United States may exercise jurisdiction over foreign states;
it is not a treaty dealing with many countries. In addition, the FSIA was
enacted after the Vienna Convention on Diplomatic Relations came into
existence, and thus could not have been a textual source for Convention
delegates. Furthermore, Congress did not intend for the FSIA to affect
diplomatic immunity under the Vienna Convention. See H.Rep. No.
1487, 94th Cong., 2d Sess. 12 (1976), reprinted in 1976 U.S.C.C.A.N.
6604, 6610. Section 1609 specifically states that Congress enacted the
FSIA "[s]ubject to existing international agreements to which the United
States is a party at the time of the enactment of this Act."

                    6
failed to raise that claim in the district court, it must fail. Fowler v.
Land Management Groupe, Inc., 978 F.2d 158, 164 (4th Cir. 1992);
Bakker v. Grutman, 942 F.2d 236, 242 (4th Cir. 1991).

III.

Here, as in most cases invoking sovereign immunity, there may
appear to be some unfairness to the person against whom the invoca-
tion occurs. But it must be remembered that the outcome merely
reflects policy choices already made. Policymakers in Congress and
the Executive Branch clearly have believed that diplomatic immunity
not only ensures the efficient functioning of diplomatic missions in
foreign states, but fosters goodwill and enhances relations among
nations. Thus, they have determined that apparent inequity to a pri-
vate individual is outweighed by the great injury to the public that
would arise from permitting suit against the entity or its agents calling
for application of immunity.

As the district court correctly notes in its well-reasoned opinion,
"diplomatic immunity does not provide an unconstrained license to
violate contracts and United States laws."8 It merely seeks to protect
American diplomats from criminal and civil prosecution in alien lands
and to enhance relations among the United States and foreign countries.9
Applying diplomatic immunity as set forth in the Vienna Convention
to the case at bar, we conclude that the Muftis are protected from
_________________________________________________________________

8 Diplomats are bound to follow the laws of the receiving State. See 23
U.S.T. at 3247. And the receiving State has various extra-judicial means
of enforcing the obligation.

9 Because of the reciprocal nature of the agreement, a decision extend-
ing the "commercial activity" exception to eliminate civil immunity from
such a suit as Tabion's would create the spectre of foreign states around
the world following the ruling, thereby forcing diplomats to defend law-
suits over living services that result in no monetary profit to them. Such
a ruling could only subject American diplomats to the risk of liability
under foreign laws and reduce the efficient performance of their diplo-
matic missions abroad.

                     7
Tabion's claims. The district court's judgment granting the Muftis'
motion to quash is accordingly

AFFIRMED.

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