It is well known that diplomats and diplomatic institutions enjoy immunity and therefore have legal protection status. But how do the international treaties on diplomatic immunity relate to national Namibian laws? Against this background, the question of violation of national Namibian occupational health and safety regulations by the diplomatic employer is particularly relevant. A legal approach will be provided in this regard below.
1. Meaning and legal basis of diplomatic immunity
“[T]o the development of friendly relations among nations” the aim of diplomatic immunity is “to ensure the efficient performance of the functions of diplomatic missions as representing States”. This objective with regard to diplomatic privileges can be found in the preamble of the Vienna Convention on Diplomatic Relations (VCDR) of 1961, which applies in 193 contracting states worldwide and has also come into force in Namibia since October 14, 1992. The VCDR as well as the Vienna Convention on Consular Relations (VCCR), which came into force in 1967 and was ratified by the Republic of Namibia on September 14, 1992, which is now used in 182 countries worldwide, represents the relevant legal basis in international diplomatic and consular law. Consular officials enjoy immunity, unlike diplomats, only with regard to official activities.
The legal protection status extends to immunity from criminal prosecution in the receiving state, although criminal prosecution in the sending state remains unaffected, as well as protection from civil and administrative jurisdiction. A distinction is also made with regard to the catalog of duties for diplomatic representatives as to whether the breach of duty relates to official activity or is outside of official activity. This has an impact on the fact that the immunity with regard to breaches of duty committed outside of official duties only relates to the period of the official stay, whereas the immunity with regard to the official performance of the duties is unlimited in time. Pointing out to the employee that they may be exposed to legal prosecution against diplomatic representatives who continue to be in Namibia after their official term of office after a breach of duty committed outside of their official duties and who can therefore also be exposed to legal prosecution in this regard also appears to have a very limited practical scope not very useful. The possible limits of diplomatic immunity that could be available to Namibian employees in the local context must therefore be examined.
2. Limits of diplomatic immunity
The limits of diplomatic immunity must also be discussed because of its high practical importance, particularly in the area of labour law. The immunity of the diplomatic employer guaranteed by international treaties and the national Namibian labour law regulations in favor of the employee are in conflict. This clearly shows an imbalance of power between diplomatic protection status and employee protection regulations. However, it must be examined whether there are barriers to this diplomatic protection or whether the Namibian employee working on the premises of the diplomatic employer is completely unprotected.
a) Limits of immunity according to the VCDR (?)
The international treaty of the VCDR itself provides for limits to diplomatic protection. The following are exempt from immunity in accordance with Article 31 Paragraph 1 of the VCDR:
“(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”
These limits of diplomatic immunity can also be found in legal practice, for example Article 31 Paragraph 1 Litera a) VCDR was found in the Decision Athol (Pty) Ltd v Rodrigues 2001 (1) SA 1285 (W) (at 1296 C – E) of the High Court of South Africa application. In any case, these limitations inherent in international law do not provide any legal basis for the application of the labour law problem here, since this is an exceptional provision which, according to its wording, does not apply to labour law disputes. Due to its nature as an exceptional provision, it will not be possible to affirm an interpretation that corresponds to the meaning and purpose by analogy to employment contracts, so that comparability is not important. Since the barriers to diplomatic immunity inherent in the VCDR are not effective in this case, it remains to be examined whether a possibility of legal action can be found under Namibian law.
b) Limits of diplomatic immunity through national Namibian occupational health and safety regulations (?)
With regard to the Namibian legal situation, the legal starting point that can be cited is the Diplomatic Privileges Act (Act No 71 of 1951) passed in 1951, which, in Section 3, regulates cases in which diplomatic immunity should not apply. This says:
“(1) The provisions of section two shall not apply to any person mentioned therein in connection with any liability incurred by him for any tax levied on the incomes of persons or in connection with any transaction entered into by him in his private and personal capacity, for purposes of trade or in the exercise of any profession or calling.”
According to this national exceptional provision, a limit can be established to the effect that immunity should not apply in cases in which the practice of the profession is affected. This regulation does not expressly cover the case of the Namibian employee who is employed on the premises of a foreign representation. According to the Attorney General MR. Sakeus ET Shanghala MP on April 19, 2017 published paper “FREQUENTLY ASKED LEGAL QUESTIONS – THIRD EDITION” addressed to the Right Honorable Dr. Saara Kuugongelwa-Amadhila MP, The Prime Minister of the Republic of Namibia, the meaning and purpose of this national exceptional provision should, however, show that the employment of workers itself was also intended by the exceptional provision. The Attorney General comments on this under Section 3.1.3 (Labour Suits against Institutions that enjoy Diplomatic Privileges) as follows:
“However, the Diplomatic Privileges Act, 1951 in section 3 provides for exceptions to which immunity does not apply. “Hence, the interpretation that in addition to tax and commercial transactions, exercise of any profession of calling translates to labour or employment, therefore same is not subject to immunity.“
According to this reading, the provisions intended to protect employees under the Labour Acts (Act No 6 of 1992; Act No 11 of 2007) could also be applied in the relationship between Namibian employees and diplomatic employers. However, concerns remain as to the actual legal basis of this opinion. This results from the fact that the teleological interpretation does not appear to be compelling at all, and the statement cited does not provide any justification in this regard. Whether the Diplomatic Privileges Act should also include labour law disputes with the diplomatic mission itself seems highly questionable. Rather, the exception applies to (natural) persons who enjoy diplomatic immunity. However, with regard to their economic activities, the exception provision should apply. It is not obvious from the mere wording whether the term “in the exercise of any profession or calling” should also mean the professional exercise of the diplomatic mission’s employees. Especially since the employment relationship will not come about with individual (natural) persons who enjoy diplomatic protection, but with the institution as such.
The exception provision, on the other hand, explicitly refers to (natural) persons (see “not apply to any person mentioned therein”). In addition, as already explained, such an exception provision contains a clear final legislative will with regard to the expressly regulated exception. For an application to labour law disputes that arise with employees of the diplomatic mission, this reading would only be an analogous application, although the scope of application for analogous interpretations of exceptional provisions is limited from the outset. In any case, there would be a need for a high degree of comparability between the express content of the regulation and the case presented here. However, according to our assessment, there is no such comparability because the exception provision only takes into account the person who enjoys diplomatic protection. This limitation of the standard in terms of personnel already causes the required comparability to fail.
Furthermore, doubts remain that – even if one considers this reading on the part of the Attorney General to be convincing – the Diplomatic Privileges Act came into force in 1951, so that it is far from clear how this national norm relates to those later adopted by the Republic of Namibia behaves in accordance with the international treaties ratified by the Vienna Convention. An argument that the international treaties are not based on a legislative act of the Namibian Parliament cannot be pursued further in view of the fact that the treaties were ratified by the Republic of Namibia. Even if one does not share the concerns here, the question of how these rights can be enforced against the diplomatic representation cannot ultimately be clarified by Namibian law alone.
The interaction between the Namibian legal situation and the international treaties of the VCDR and VCCR does not lead to a sustainable result. The reference to the possibility of waiving immunity by the sending state in accordance with Article 32 Paragraph 1 and Paragraph 2 VCDR or Article 45 VCCR does not appear to lead to a satisfactory result against the background of a breach of Namibian labour law regulations by the diplomatic employer. In an employment relationship, such serious breaches of duty by individual diplomatic officials are certainly conceivable, which could also lead to such an annulment.
In any case, the diplomatic representation as an institution will have to be addressed even if employee protection regulations are not complied with. Furthermore, there is no possibility of any pressure from the employee regarding this procedure. Furthermore, the classification as persona non grata in accordance with Article 9 Paragraph 1 VCDR by the receiving state does not lead to a solution to the problem, as there is no legal recourse on the part of the employee with regard to this approach. Especially since the requirements for such a classification will be extremely high, so that such a classification would only be considered in extremely exceptional cases.
Since the Namibian legal situation cannot lead to a sustainable result either on its own or in conjunction with the international treaties signed by the Republic of Namibia, the legal situation in South Africa will be examined below in order to further approach the issue here.
c) Limits of diplomatic immunity under South African law (?)
With regard to South African jurisprudence, no relevant decisions on the question of violations of national labour laws by diplomatic employers can be identified either by the Commission for Conciliation, Mediation and Arbitration (CCMA) or the labour courts.
Regardless of this sobering starting point, South Africa still has written law on the issue here, with the Diplomatic Immunities and Privileges Act (Act 37 of 2001) (DIPA) being passed in 2001. Within the framework of the DIPA there is a dedicated reproduction of four conventions. However, these regulations do not contain any explicit regulation on the question of immunity limits in the event of violations of labour law. The same applies to the Foreign States Immunities Act 1981 (Act 87 of 1981), which sets out the individual forms of immunity of foreign states before South African jurisdiction.
Ultimately, the only legal cornerstone that remains is through this Department of International Relations and Cooperation (DIRCO) and the South African Ministry of Labour developed guidelines “POLICY ON THE MANAGEMENT OF DIPLOMATIC IMMUNITIES AND PRIVILEGES IN THE REPUBLIC OF SOUTH AFRICA” (2011), which, under section 5.2, relates to the unjustified dismissals of South African employees by the diplomatic employer of foreign missions in South Africa. Thereafter, the following multi-step process for serving a transfer form and the CCMA’s interim award to institutions granted immunity is proposed:
“(a) Step 1: Referral of the dispute to the CCMA
The complainant should refer the dispute directly to the CCMA using the prescribed form customized by the CCMA for persons employed by Missions in the RSA, indicating the nature of the dispute as envisaged by the applicable labor legislation without, at this stage, having to submit proof that the referral form has been served on the Mission.
(b) Step 2: Statement on the Dispute
CCMA shall take down a statement from the complainant and submit it to the Department with the referral form in the prescribed formatting to be presented to the Mission.
(c) Step 3: Serving the referral form on the Mission
The Department through its Directorate: Immunities and Privileges will ensure that the referral form with the statement is properly served on the Mission, subsequent to discussions with the relevant bilateral/multilateral business unit, within a set timeframe to institute proceedings.
(d) Step 4: Protocol puts diplomatic pressure on the Mission
Upon receipt of the referral form from the CCMA, the Director: Immunities and Privileges in consultation with the relevant bilateral/multilateral counterpart of the Department shall call in the Deputy Head of the relevant Mission for consultations and present a Diplomatic Note containing the referral form and the statement of the complainant.
In the Diplomatic Note, Protocol shall formally bring the dispute to the attention of the Mission with a request to do everything reasonably possible to resolve the dispute in compliance with the law, and set a timeframe for resolving the matter. The CCMA and the relevant bilateral/multilateral business units will be kept informed.
In the event of non-compliance by the Mission, the matter will be escalated to the Chief of State Protocol when a second and final Note Verbale is handed over personally to the Head of the Mission.
(e) Step 5: Protocol informs CCMA that the referral form had been served
Protocol shall provide the CCMA with a written confirmation that the referral note had been properly delivered to the Head of the relevant Mission.
(f) Step 6: Advisory Arbitration Award
Upon receipt of the response from the mission, the Department forwards the response to the CCMA who would evaluate statements of both parties and, should the CCMA determine that the LRP’s claim has merit, an advisory arbitration award will be issued and the CCMA will approach the Department to request the Mission to take note of the award or alternatively to attend a conciliation/arbitration hearing.”
Although the employee’s legal options for enforcement are clearly limited from the outset in the context of this approach, there is at least one point of reference in the form of written law, according to which the employee is granted a certain protective status vis-à-vis diplomatic missions through the CCMA. As part of this approach, it is of course also to be trusted that the relevant communication channels to the diplomatic institutions are used extensively, since other legal (coercive) measures cannot be taken by the employee. In Namibia, too, consideration should be given to at least an analogous application of this directive in order to provide employees with a form of regulated action in the event of a dispute. Instead of the CCMA, the Namibian Labour Dispute Resolution would of course have to act as a supporting authority. Although this approach cannot be said to balance the legal positions of diplomatic protection under international law and national employee protection, it does provide those working in the diplomatic mission’s premises with a regulated procedure with which a certain amount of pressure can be exerted to comply with employee protection can.
d) Ultimately, attention should be drawn to the decision of the Supreme Court in Botswana “Bah v Libyan Embassy 2006 1 BLR 22 (IC)”. In this context, the Court made use of a restrictive interpretation of diplomatic immunity and decided that the breach of obligations under the employment contract was a private law issue. Furthermore, it is not a government act or the performance of official duties. However, it is doubtful whether this decision will be equally convincing in Namibia or South Africa. Given the clear requirements of international law, such a legal assessment appears highly questionable.
3. Results
Considering that there is not a single labour court case in connection with diplomatic missions to be found in either Namibia or South Africa, it is not possible to draw an overly positive picture of the legal position of Namibian employees at diplomatic missions from a practical legal perspective. It should therefore be noted that, according to the current legal situation, diplomatic immunity in labour disputes cannot be broken through effective employee protection and employees cannot be given effective legal means. Only the procedure mentioned in South Africa as part of the guidelines developed by DIRCO and the Ministry of Labour could, if applied accordingly (in the future), provide a little more legal clarity and at least provide a basis for the protected status of employees.
Sources:
Personal Status Law – Convention – Vienna Convention on Diplomatic Relations;The Vienna Convention on Diplomatic Relations | Background current | bpb.de;The interplay between international law and labor law in South Africa: piercing the diplomatic immunity veil (scielo.org.za);The Interplay of International Law and Labor Law in South Africa: Penetrating the Diplomatic Immunity Veil (scielo.org.za);Dismissal by a foreign diplomatic mission: Are South African local employees without an effective remedy? – De Rebus;Diplomatic Law: Trial of a Foreign Diplomat in a South African Court – De Rebus;DIPLOMATIC IMMUNITIES AND PRIVILEGES ACT (dirco.gov.za);http://10.152.129.14:8081/nxt/gateway.dll/cc/u0uua/ghvua/c2a1a/ (gimmenotes.co.za)
Author: Dr. Richard Schulz (trainee lawyer at the Munich Higher Regional Court (Oberlandesgericht München), currently working as an intern at the law firm Etzold-Duvenhage, and reviewed by Ulrich Etzold, partner at Etzold-Duvenhage)
Disclaimer of liability
Please note that the above information is not intended as legal advice. This article is for information purposes only and neither Etzold-Duvenhage nor its employees shall be liable for any direct or indirect loss arising from reliance on the contents of this article. This article is limited to matters of current Namibian law. In the event that the contents of this document are relevant to a reader, we advise the reader to contact their lawyer for legal advice.