THE PLIGHT OF LOCALLY RECRUITED PERSONNEL IN DIPLOMATIC

SETTINGS: EXPLORING THE IMPEDIMENTS ON THE

REALISATION OF FREEDOM OF ASSOCIATION
AND THE RIGHT TO ORGANISE IN THE
SOUTH AFRICAN FOREIGN MISSIONS

By
SIPHO NDEBELE

Submitted to the Master in Industrial and Employment Relations

of the Turin School of Development
of the International Training Centre of the ILO

in partial fulfilment of the requirement for

the FIRST LEVEL MASTER
of the University of Turin, Italy

31 October 2021
THE PLIGHT OF LOCALLY RECRUITED PERSONNEL IN DIPLOMATIC
SETTINGS: EXPLORING THE IMPEDIMENTS ON THE
REALISATION OF FREEDOM OF ASSOCIATION
AND THE RIGHT TO ORGANISE IN THE
SOUTH AFRICAN FOREIGN MISSIONS

Thesis Approved:

Elton Di TommaziMaciel
Thesis Advisor
Consultant – Labour & Employment Relations
Mobile +55 11 9 5912 4320
Email eltontmaciel@gmail.com

ii
 ACKNOWLEDGEMENTS

It remains an uncontestable fact how important education is, and as an active participant in a
very fluid labour market environment, the issue of up-skilling and re-skilling remains core to
engage in an environment reflecting the future of work. One’s cognitive capacity needs to be
constantly upgraded in order to remain effective, efficient and a relevant contributor. Whilst
this may sound easier, the biggest challenge relates to the timing when one decides to re-
engage educational materials? The biggest question is, what resource support is availed for
the challenge ahead? I remain indebted to the support of my colleague and brother, Mr
Siyabonga Hadebe, without whom this would have not been possible. The Director-General
at the Department of Employment and Labour, Mr Thobile Lamati, who enthusiastically
supported the idea of tackling this challenge but also went beyond the call of duty in ensuring
we have access to resources. My friend and brother Romeo Makhubela who impressed on the
need to be disciplined and ensured despite other pressing duties, submissions were on time.

To the various friends and colleagues with whom we decided to take the plunge in different
fields of study during this period and ensured we check on the progress, I thank you. Lastly,
my wife and my family, who always understood the pressure and changing moods, much
appreciated.

Thank you guys.

iii
Name: SIPHO NDEBELE

Date of Degree: OCTOBER 2021

Title of Thesis: THE PLIGHT OF LOCALLY RECRUITED PERSONNEL IN

DIPLOMATIC SETTINGS: EXPLORING THE IMPEDIMENTS ON THE
REALISATION OF FREEDOM OF ASSOCIATION AND THE RIGHT
TO ORGANISE IN THE SOUTH AFRICAN FOREIGN MISSIONS

Field: Industrial and Employment Relations

ABSTRACT
Although the world has made serious strides in protecting labour rights in the past few
decades, the reality is that some categories of workers remain outside the scope of the
application of the international labour standards. Among these, the individuals who are
employed in diplomatic settings (non-diplomats) are denied access to labour rights and social
justice. At the heart of the problem is the existing tension between the International Labour
Organisation (ILO) conventions and diplomatic treaties. This study concludes that the labour
rights of the locally recruited personnel (LRPs) are continuously forsaken for diplomatic
relations between states, and this means that not even the ILO is daring enough to compel its
member countries to comply with the labour standards. This was evident in the cases
involving South Africa and Britain that the ILO considered with great diffidence. Besides
attempts by the domestic courts and others, the cases concerning disputes between the LRPs
and diplomatic missions are generally a travesty of justice. As a result, this study makes
several recommendations to close the regulatory gap when it comes to the rights of the LRPs
as well as to the creation of harmony in international law for the benefit of this class of
workers.

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 TABLE OF CONTENTS

ACKNOWLEDGEMENTS ........................................................................................... iii

ABSTRACT...................................................................................................................... iv
LIST OF TABLES AND FIGURES .............................................................................vii
ABBREVIATIONS ....................................................................................................... viii
1. Introduction and setting the scene ....................................................................... 1
1.1. Introduction ............................................................................................................. 1
1.2. Hypothesis ............................................................................................................... 3
1.3. Problem Statement .................................................................................................. 4
1.4. Aims and objectives ................................................................................................ 5
1.5. Methodology ........................................................................................................... 6
1.6. Chapter outline ........................................................................................................ 7
2. Legal framework governing employment relations in diplomatic settings ............. 8
2.1. Introduction ............................................................................................................. 8
2.2. The origins of the International Labour Organisation .......................................... 10
2.2.1. Convention No.87 - Freedom of Association and the Right to Organise ............. 12
2.2.2. The ILO supervisory mechanism .......................................................................... 14
(a) The Committee of Experts on the Application of Conventions and
Recommendations ................................................................................................. 14
(b) The Committee on Freedom of Association ......................................................... 14
2.3. The international instruments governing the relations between states ................. 17
2.3.1. The Vienna Convention on Diplomatic Relations ................................................ 17
2.3.2. The Vienna Convention on Consular Relations .................................................... 19
2.4. The South African labour legislative framework .................................................. 20
2.4.3 Inter-state diplomatic relations and labour law ..................................................... 21
2.5. Conclusion ............................................................................................................ 22
3. The South African case in Ireland and other selected cases concerning the
violations of the ILO Convention 87 and other labour conventions at
diplomatic foreign missions ................................................................................ 24
3.1. Introduction ........................................................................................................... 24
3.2. The case between the LRPs and South African embassy in Ireland ..................... 26
3.3. Other individual cases involving LRPs at South African missions ...................... 28
3.3.1. The Nkosi case at the Geneva Mission.................................................................. 29
3.3.2. Conduct of individual South African envoys and other diplomats........................ 30
3.4. The Government of Canada v. The Employment Appeals Tribunal and Burke ... 31

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3.5. The case of the United Kingdom in the United States .......................................... 31
3.6. Prevalence of labour abuses by diplomats and embassies .................................... 33
3.7. The indifferent attitudes of ILO member states to incidences of abuses by foreign
states and their diplomats ...................................................................................... 34
3.8. Conclusion ............................................................................................................ 36
4. Analysis and findings .......................................................................................... 37
4.1. Introduction ........................................................................................................... 37
4.3. Reluctance by ILO Member States to deal with unfair employment relations ..... 39
5. Conclusions and recommendations ................................................................... 48
5.1. Introduction ........................................................................................................... 48
5.2. Conclusions ........................................................................................................... 48
References ........................................................................................................................ 51

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 LIST OF TABLES AND FIGURES
Tables

1. Numbers of ILO Member States and signed instruments…………..……………….…….1

2. List of Core Conventions and Governance Conventions………..…….….…….…….….5

Figures

Figure 2.1. The freedom of association flow chart…………………………….……….…….15

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 ABBREVIATIONS
ACTU Australian Council of Trade Unions
AFL-CIO American Federation of Labour Congress of Industrial Organisations
AGOA African Growth and Opportunity Act
AUSES Association of United States Engaged Staff
BBC British Broadcasting Corporation
BCEA Basic Conditions of Employment Act
CCMA Commission for Conciliation, Mediation and Arbitration
CEARC Committee of Experts on the Application of Conventions and
Recommendations
CFA Committee on Freedom of Association
C.87 Convention 87 on freedom of association and the right to organise
C.98 Convention 98 of the right to organise and collective bargaining
DIPA Diplomatic Immunities and Privileges Act (37 of 2001)
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EEA Employment Equity Act
EPAs Economic Partnership Agreements
GB Governing Body
GSPs Generalised System of Preferences
FPRW Fundamental Principles and Rights at Work
FSC Foreign Service Code
FSIA Foreign States Immunity Act
IACHR Inter-American Commission on Human Rights Organisation of American
States
IFPTE International Federation of Professional and Technical Employees
ILO International Labour Organisation
ILS International Labour Standards
LoN League of Nations
LRA Labour Relations Act
LRP Locally Recruited Personnel
PSI Public Service International
TUC Trade Union Congress
UDHR Universal Declaration of Human Rights
UN United Nations

viii
UNCJIS United Nations Convention on Jurisdictional Immunities of States and their
Properties
UNGA United Nations General Assembly
UNHRC United Nations Human Rights Commission
ToV Treaty of Versailles
VCCR Vienna Convention on Consular Relations
VCDR Vienna Convention on Diplomatic Relations

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 1. Introduction and setting the scene
1.1. Introduction

The International Labour Organisation (ILO) is a United Nations (UN) agency whose
mandate is advancing social and economic justice through setting International Labour
Standards (ILS).1 This makes it one of the oldest specialised agencies of the UN and
presently boasts 187 member states. Established as a tripartite organisation, which affords
governments, workers and employers an equal footing, the ILO is the only intergovernmental
entity that is not a sole domain of states. As a result, this uniqueness gives the organisation
what might be seen as a democratic legitimacy and credibility in the development of its
labour standards (Dingwerth, Schmidtke & Weise, 2020). The ILO has over the years made
its mission to achieve decent work for all by promoting social dialogue, social protection,
employment creation, and respect for the ILS. It relies primarily on the fundamental
conventions, as per the 1998 Declaration on Fundamental Principles and Rights at Work
(FPRW), to achieve its objectives. This makes the ILO one of the major contributors to
international labour law, see Chapter 2 for a detailed discussion in this regard.

Table 1: ILO Member States and the number of signed instruments (ILO webpage)
As of Today
ILO member states: 187
ILO instruments adopted: 402
 Conventions = 190
 Protocols = 6
 Recommendations = 206
Source: ILO webpage

The ILO together with other international organisations adopted the Universal Declaration of
Human Rights (UDHR) in 1948 to show its commitment to social justice.2 As such, the eight
fundamental conventions form an integral part of the UN human rights framework. It is no
coincidence that the organisation respectively adopted the Convention 87 (C.87) on freedom

1 The International Labour Standards (ILS) refers to conventions and recommendations which are legal instruments
setting out basic principles and rights at work. Conventions are legally binding instruments. There are 8 Fundamental
Conventions covering freedom of association and recognition of the right to collective bargaining; the elimination of
all forms of forced labour; the effective abolition of child labour; and the elimination of discrimination in respect of
employment and occupation. There are also 4 Governance Conventions dealing with labour inspections,
employment, agriculture labour inspections and tripartite consultation. The labour standards are supplemented
through 206 non-binding Recommendations which provide more detailed guidelines on how Conventions could be
applied. Recommendations can also be autonomous, i.e. not linked to a Convention.
2 Universal Declaration of Human Rights GA Res 217 (111) 1948 adopted by the UN General Assembly (UNGA)
on 10 December 1948. According to Article 20 of the UDHR: (1) Everyone has the right to freedom and peaceful
assembly and association. (2) No one may be compelled to belong to an association. It also provides for the right to
work and to equal pay for equal work, which includes the “right for everyone to form and join trade unions for the
protection of his interests” (see Articles 20(1), 22, 23, and 23.4).

1
of association and the right to organise and the Convention 98 (C.98) on the right to organise
and collective bargaining in 1948 and 1949. Budeli (2003: 54) claims that these international
instruments “recognise the right to freedom of association in the private sector as well as in
the public sector”. It follows then that diplomatic missions of states are not exempted from
ensuring that all employees irrespective of status are guaranteed freedom of association and
the right to organise as well as to engage in collective bargaining.

The present thinking and institutional labour market framework both at state and international
level (i.e. ILO and other organisations) is premised on the classical definition of an
employment relationship. This in turn influences the interpretation of what freedom of
association and its components such as industrial relations and collective bargaining ought to
be. It is therefore not a mistake that C.87 and the supervisory mechanism designed to monitor
breaches to the principle pertaining to the right of workers and employers to form and join
organisations of their choice appear to be overly focused on traditional employment
relationships.3 The ILO supervisory system/mechanism helps to ensure that countries
implement the conventions they ratify. There are two kinds of the supervisory mechanism,
i.e. the regular system of supervision and special procedures.4 The ILO’s Committee on
Freedom of Association (CFA), for example, was established to examine complaints by
employers’ and worker’s organisations about the violations of freedom of association.

The conventional industrial relations approach looks at the notion of freedom of association
as an interrelationship between employers and employees, trade unions, employer
organisations and the state. Clegg (1975: 452) reasons, “the employment relationship is
central to industrial relations.” These actors are collectively referred to as “social partners”
who are supposedly working towards a unified goal of maintaining labour peace and
economic stability through methods such as collective bargaining. As such, this social
partnership (also called tripartism) shapes the institutional arrangements at state and global
levels. Tripartism can be viewed as the heartbeat of social dialogue in the labour market as it
gives voice to the downtrodden just like the locally recruited personnel (LRP) in this case.
The LRPs are non-diplomatic personnel that are employed in diplomatic establishments and
normally comprise the non-citizens and are not directly employed by the sending country in a

3 Universal Declaration of Human Rights GA Res 217 (111) 1948 adopted by the UN General Assembly on 10
December 1948. According to Article 20 of the UDHR: (1) everyone has the right to freedom and peaceful assembly
and association. (2) No one may be compelled to belong to an association. It also provides for the right to work and
to equal pay for equal work, which includes the “right for everyone to form and join trade unions for the protection
of his interests” (see Articles 20(1), 22, 23, and 23.4).
4 The supervisory mechanism consists of the special procedures for representations, complaints for complaints
regarding freedom of association (see the Freedom of Association Committee) as well as the regular system of
supervision comprising the Committee of Experts on the Application of Conventions and Recommendations and the
International Labour Conference’s Tripartite Committee on the Application of Conventions and Recommendations.

2
true sense. The contract of employment is between the individual and diplomatic mission of
sending state, meaning they are not hired under the same terms and conditions as the
diplomatic personnel.

Based on the principle of tripartism, the ILO webpage boasts that the organisation is the only
tripartite UN agency where government, employer and worker representatives “can freely and
openly debate and elaborate labour standards and policies.” Also, within countries this
tripartism manifests in different forms but still based on the premise that industrial relations is
an exclusive domain of those who are involved in an employment relationship. Countries
such as South Africa have tripartism at national level to add members of community. Ackers
(2002) refers to this arrangement as pluralism, which recognises that not just trade unions but
also other social institutions can play a role in curbing business power as well as in fostering
social cohesion. This however does not mean there are no challenges.

Many countries that are ILO members including South Africa feverishly breach the
international standards at their diplomatic missions without fail, especially when it comes to
non-diplomatic personnel. Meyersfeld (2013:399) categorises this as “an embryonic
resistance to international law that characterises the responses of many governments”. This is
notwithstanding the fact that freedom of association is protected by a number of conventions
adopted within the framework of the ILO and other human rights instruments (Budeli, 2003:
53). However, it is puzzling that there are few cases that receive consideration in the ILO
supervisory mechanism despite the growing evidence of abuses of LRPs by diplomats (as
individual employers) and diplomatic missions (as institutional employers) (Gogna, Hlobil &
Podsiedlik, 2015). The ILO jurisprudence on freedom of association for LRPS, as seen in a
few cases, demonstrates that it does not deliver the desired outcome. Chapter 3 focuses on the
case that involved the LRPs and South African Embassy in Ireland in 2004 as well as other
breaches of labour standards to provide evidence that the non-diplomatic personnel represent
a group of employees that do not enjoy any protection in terms of labour law both at state and
ILO levels.5

1.2. Hypothesis

Freedom of association and the right to organise, which are dearly cherished by all workers is
but not available to all of them (workers) by virtue of their employment relations. In this
regard, there are millions of workers around the world who do not enjoy fundamental rights
5 Case No. 2197 concerning the South African Embassy in Ireland (334th Report of the Committee on Freedom of
Association approved by the Governing Body at its 290thSession (May–June 2004), paras 95–131); see also Case No
2437 concerning the complaint dated 23 June 2005 by the Association of United States Engaged Staff (AUSES), the
International Federation of Professional and Technical Employees (IFPTE), the American Federation of Labour and
Congress of Industrial Organisations (AFL-CIO) and Public Services International (PSI) against the United
Kingdom of Great Britain and Northern Ireland.

3
in the world of work and these include individuals employed in unconventional forms of
work and others engaged in diplomatic missions of most countries as non-diplomatic staff.
The LRPs are therefore denied access to rights as advanced in C.87; and this has been
something resembling a mirage for this cohort of workers.

1.3. Problem Statement

In lieu of the background above, the international law governing the relations between
countries and intergovernmental organisations is less known to many people but this
knowledge seems to be confined in the hands of selected few including governments, multi-
state institutions, diplomatic practitioners and scholars. According to Denza (2016: 1),the
1961Vienna Convention on Diplomatic Relations (VCDR) as well as the 1963Vienna
Convention on Consular Relations (VCCR) guide diplomatic relations between states.
Through this instrument, diplomatic missions and consular offices are generally considered
an extension of the sending state’s territory. Therefore, the notion of extraterritoriality applies
when it comes to diplomatic establishments all over the world. This statement is made
cognisant of the existent contestation of the debate around extraterritoriality and inviolability.
In fact, some of the labour disputes remain unsolved because of the indeterminable state of
this debate.

The emphasis therefore is that embassy premises and diplomatic staff are considered to be
under the sovereignty of the sending state, and these include their rights and benefits of the
diplomatic personnel. However, the legal status of the industrial relations coverage for LRPs
is at best something that can be argued to be a “grey area” in international law. For example,
ambiguity on the applicable law for the LRPs at diplomatic missions remains an unexplored
topic in academia. Although the majority of states are bound by the ILO conventions, it
appears that diplomatic entities act in contradiction with the objectives of these international
instruments including the ill-treatment and or dismissal of local employees and forbidding
collective bargaining. This could be resultant from the seemingly lack of a labour clause
provision in the relevant treaties governing diplomatic relations, and the domestication
thereof by countries.

This research project will thus primarily focus on the South African foreign policy
administration as regards to the working conditions for LPRs in diplomatic missions abroad.
In doing this, it will traverse the terrain of the application of foreign sovereign immunity in
employment disputes, which it argues has indeed become more prevalent but also
controversial. Thus, the case between the South African government and LRPs that were at
its embassy in Ireland is going to be the unit of analysis for this study as a way of illustrating
the effect of diplomatic immunity on employment relations for the LRPs. Furthermore, it

4
examines an approach mainly undertaken by courts and legislative bodies in these
considerations which, in their application of international law, we argue; it sacrifices
workers’ rights at the altar of State interest. As an ILO member state and signatory of
international labour standards, including all eight core conventions, South Africa does not
explicitly guarantee LRPs freedom of association and the right to organise.

Table 2: List of Core Conventions and Governance Conventions

Source: ILO webpage

1.4. Aims and objectives

The overall aim of the study is to examine the limitations of the international legal framework
governing the diplomatic relations between states in so far as the labour rights of the LRPs
with specific reference to freedom of association and right to organise. It will also deal with
the problems encountered by South Africa since its re-admission to the international fold in
this regard. This investigation will therefore seek to respond the following questions:

a) Do the principles of freedom of association and the right to organise apply to the
LRPs? If they do not, how are they impacted?
b) How does the South African labour relations framework, generally recognised as
one of the premier labour laws globally, respond to the employment relations to the
LRPs at its diplomatic missions?
c) What are the limitations of the ILO supervisory system in responding to the
indeterminate state of the employment of LRPs in diplomatic embassies?
d) What possible solutions and recommendations can be made for a future dispensation
that ensures that the LRPs could also enjoy freedom of association and the right to
organise like all employees?

5
1.5. Methodology

The preferred methodology for this study is qualitative research. While the information
obtained through this investigation entails some statistical analysis, the main focus is on
qualitative data rich in description. Its focus will not be on testing the validity or invalidity of
any existing theory with respect to the plight of LRPs but it will merely examine the
applicability of the ILO Convention on Freedom of Association and Protection of the Right to
Organise Convention to non-diplomatic personnel. According to Manheim & Rich (1995:
20), the research of this nature is called theory building (construction) because it is an attempt
to create possible explanations for events. In terms of data collection, this research project
will combine content analysis and case study research to describe and examine the plight of
LRPs in diplomatic settings. To attain this, multiple sources, such as unstructured interviews,
observations and case studies as well as legal and other documents will be used to collect
data.

The first merit of qualitative research is that it is the most appropriate method of gaining a
deeper understanding of the experiences of the people directly affected by their inability to
exercise their freedom of association as common to all the workers. It also places less
emphasis on following strict rules and procedures. As Willem & Evan in Schurink (1990:
202-203) put it, there are no recipes for conducting qualitative research and the so-called
rules and canons of research are frequently bent and twisted to accommodate the particular
demands and requirements of the situation and the personal characteristics of the researcher.

This study will therefore go beyond labour market governance tools of analysis to assume a
multi-disciplinary perspective to untangle the problems facing LRPs in diplomatic missions.
Fields such as international law, political science, international relations and economics will
also be considered. South Africa is the main case and unit of analysis when investigating the
applicability of C.87 to LRPs at the country’s sixty nine embassies and seventy
five consulates.6 The experience of the researcher as both a labour market specialist and
diplomat will be useful in selecting the cases that will be valuable in getting to the bottom of
the difficulties LRPs face as employees in environments that are dominated by interests of
states. The researcher will also conduct unstructured interviews with expects in law,
diplomacy and labour market governance for an in-depth understanding of the problem.

Like most states, South Africa generally struggles with separating state immunity and labour
law. This study will therefore explore from selected South African experiences, the

6 In March 2021, South Africaannounced that it had earmarked the following diplomatic offices for closure, namely:
Minsk, Belarus; Port of Spain, Trinidad and Tobago; The Holy See, The Vatican; Helsinki, Finland; Milan, Italy;
Muscat, Oman; Suva, Fiji; Bucharest, Romania; Lima, Peru and Chicago, US.

6
impediments on the realisation of freedom of association and the right to organise for LRPs at
its diplomatic missions. This will be contrasted with national law and commitments through
international labour standards and other sources of international law that South Africa has
accented to in the last two and half decades. A key consideration here being to express that
there exist no residue obligation for South Africa in her responsibilities to her citizens in
terms of the law and Constitution. Other cases from other parts of the world will be
considered to build the argument.

1.6. Chapter outline

The opening chapter introduced the reasoning behind the study by stating the problem
concerning the impediments on the realisation of freedom of association and the right to
organise for LRPs in diplomatic settings. Furthermore, the introduction dealt with aims and
objectives of the study as well as the research methodology. The subsequent chapters are
delineated in the following manner. Chapter Two reviews multiple sources of data consulted
to appreciate the legal framework and settings that characterise not only the employment
environment within which LRPs operate but also understand the reasons why freedom of
association and the right to organise for LRPs is difficult to attain in diplomatic settings.

Chapter Three focuses primarily on the South African struggles with separating state
immunity and labour law. The case between the government and LRPs in its embassy in
Ireland will be the base of the discussion. Selected incidences of violations of C.87 and other
labour conventions over the past two decades at its foreign missions will also be considered.
Chapter Four utilizes both outcome of the Ireland case and secondary data to present the
results of the study. Furthermore, experiences in other countries will be drawn from
secondary sources to augment the argument that seeks to expose the asymmetry in diplomatic
law and labour issues at diplomatic missions and; Chapter Five presents the conclusions and
recommendations.

7
 2. Legal framework governing employment relations in
diplomatic settings
2.1. Introduction

A number of international documents such as the 1919Treaty of Versailles (ToV), the ILO
conventions including C.87, the VCDR and VCCR as well as the South Africa’s Foreign
States Immunity Act (FSIA, updated 1985) will form the basis of the literature review.
Besides the extensive international legal framework, this section will scrutinise materials by
scholars in different fields including law, labour market policy, economics, international
relations and political science such as Ackers (2002), Butterfield & Wight (2019), Clegg
(1975), De Jager (2017) and Denza (2016)as well as various ILO documents in order to gain
insights on the cross-cutting nature of the issues that inform the employment relations
between LRPs and diplomatic missions. These secondary sources are therefore critical to the
study in reflecting on the multiplicity of policy documents covering the same area but lacking
in coherence, and thus the existent ambiguity.

The presentation of the legal framework is approached from two different but complimentary
perspectives of international labour market governance through the ILO labour standards, and
the public laws for diplomatic relations of states. As shown in Table 1, the ILO boasts 402
adopted international labour standards that cover a wide range of topics including full and
productive employment; rights at work; social protection and social dialogue. Since this study
concerns the matters relating to freedom of association and the right to organise, C.87 is thus
relevant to examining the conditions under which the LRPs are employed in diplomatic
missions. Convention 87 is nonetheless intrinsically linked to other labour standards
especially C.98, and this means that the analysis will extend to areas beyond the ambit of
freedom of association and the right to organise. For example, the issues concerning domestic
workers at the residences of diplomats related to the fundamental rights at work that are
covered by the eight core conventions of the ILO. Pertaining to Conventions 87 and 98, the
ILO refers to them as enabling rights that make it possible to promote and realise decent
conditions at work.

Whilst the ILO convention’s main focus is labour market regulation, the VCDR and the
VCCR govern the relations between states. These instruments espouse international law to
signatories. Therefore, the treaties on state relations will be discussed in detail in order to
understand the nature of employment of individuals in relation to the inviolability of state
sovereignty as it relates to the business of diplomatic missions. The outcome of this
discussion will showcase how the seemingly separate or incompatible areas of labour law and

8
diplomatic law converge reflecting a contemptuous disregard for ILS at the disadvantage of
LRPs. In addition, the discussion will focus on the extension of international frameworks to
the level of countries in the form of domestication as well as on the ILO mechanism for
dealing with the breaches of the labour standards.

To give more insight into the above, first, the background on the ILOs origin and the core
issues it covers will be outlined covering its supervisory system (representations and
complaints procedures initiated against countries for violations of any of the
conventions).This relates to C.87 breaches in order to establish clarity on what the cases
cover and how they have been handled. Secondly, the presentation of South African labour
laws with special focus on freedom of association and right to organise will assist in
contextualising the study. Third, bearing the challenges confronting LRPs, it is necessary to
evaluate whether the CFA is capable to ensure that social justice covers the LRPs as well.
Lastly, the review will therefore explore the statistics in regard as part of empirical evidence
to demonstrate that it is possible that the ILO system could be ignoring this class of workers.

Reflecting on whether normative organisations are still relevant or whether value can still be
derived from these? Alvarez (2019:688),uses the “Triangle Shirtwaist Factory” tragedy of 25
March 1911 to elaborate on disastrous working conditions at the time. According to him, the
workers had already received their pay envelopes distributed from the 9th floor of that
building whereafter a fire broke out engulfing the whole floor resulting in one hundred and
forty-six deaths. This as the “bosses had kept the doors locked to keep out union organisers”.
In the same vein, Alvarez (2019: 648) emphasises that this disaster raised “issues at the core
of the ILO mandate even before it was born” and concludes these conditions were “all too
common practice of treating workers as less than commodities and humans”.

This conclusion by Alvarez (2019)is used as a yardstick to mirror the labour market
circumstances post the First World War. Naturally, atrocities experienced are said to have
made the protection of human rights an international priority. This led to the then
protagonists’ recognising in the ToV that the dream for everlasting peace cannot be limited to
only state relations but extended to improving the labour market working conditions7.This
statement and the cognisant existent threat of further social instability led to the recognition
that, as articulated in the Treaty of Versailles (1919: 332), “universal peace can only be
established if it is based upon social justice”.

7 This acknowledgement is expressly outlined in Part XIII, section 1 of the ToV that “whereas conditions of labour
exist involving such injustice, hardship and privation of large numbers of people as to produce unrest so great that
the peace and harmony of the world are imperilled; and improvement of those conditions is urgently required”

9
2.2. The origins of the International Labour Organisation

To address the labour market concerns, the League of Nations decided to establish a tripartite
entity based on a system of international labour standards known as the International Labour
Organisation. The ILO is thus defined, in the words of De Jager (2017), as “an organisation
established by treaty, governed by international law, possessing its own legal personality and
with membership largely composed of states”. According to Aust (2000), these types of
organisations can have “restricted membership” informed by “competence in a particular
field”, for example, the ILO being established to advance social and economic justice in the
labour market. A key feature in this environment is, as De Jager (2018) points out, these
organisations are a “subject of international law and capable of enforcing rights and duties in
the international plane”.

The Wex language dictionary defines international law as concerning rules and principles
governing the relations and dealings of nations with each other, relations between states and
individuals as well as relations between international organisations.8These types of laws
including human rights laws, refugee laws, etc. are created with the help of the international
treaties, which signify consent states to be regulated by external law. Cognisant of this and
specific to this study, it can be argued that one of the key elements of international law is
“human rights”, simply defined by the British Equality and Human Rights Commission as
“the basic rights and freedoms that belong to every person in the world, from birth until
death”. They further assert that core to human rights are shared values like “dignity, fairness,
equality, respect and independence”. Importantly, as the Commission further points out
“these values are defined and protected by law; they can never be taken away, although they
can sometimes be restricted – for example, in the interests of national security”.

In lieu of this background and believing that “labour rights are human rights”, one can
without reservation, affirm that in order to preserve social stability, workers ought to be
treated equally and with dignity. In summary, workers possess an inalienable and indivisible
right to protection. Such rights, is herein pointed inform the quest for social justice which this
report reasons is at the core of the ILOs existence and as will be argued should not be overrun
by diplomatic immunity. Social Justice is an expression of an aspiration of equality and
dignity for workers in the labour market. According to the ILO, “it is an aspiration of a labour
market “through which every working man and woman can claim their rights freely and on
the basis of equality of opportunity”. For the purpose of achieving its social justice objectives
and in expression of its normative organisation status, the ILO advances the international

8 Wex is a free legal dictionary and encyclopaedia sponsored and hosted by the Legal Information Institute at the
Cornell Law school.

10
labour standards which are drawn up by its “tripartite” constituents. According to the ILO
website, the total number of labour standards that have been developed since its founding of
the ILO currently stands at 8,266.

The international labour standards are mainly expressed through two kinds of instruments,
that is, conventions and recommendations and these are supported by a comprehensive
supervisory system capacitated to address challenges that might emanate from their
application at the national level. In the preamble to the centenary publication called Law for
Social Justice, Guy Ryder, ILO director-general emphasize that the labour instruments “serve
as a catalyst for action by ILO’s constituents and the multilateral system and are a source of
social cohesion and economic stability” (ILO, 2019a: iii).Interestingly and to ensure
coherence, the issue of social cohesion is properly reflected in the ILOs Declaration on Social
Justice for a Fair Globalisation9which calls all member states to pursue policies based on the
organisation’s four strategic objectives – employment, social protection, social dialogue, and
rights at work. It further emphasises for “a holistic and integrated approach by recognizing
that these objectives are ‘inseparable, interrelated and mutually supportive’, ensuring the role
of international labour standards as a useful means of achieving all of them” (ILO, 2019a).

These sentiments support the notion stated in the ‘Rules of the Game’ that points to ILS
having grown “into a comprehensive system of instruments on work and social policy
supported by a supervisory system designed to address all sorts of problems in their
application at national level” (ILO, 2009b: 9).In the same document, it is argued that these
instruments have added positively and complement “various spheres of life, such as, in
human development ‘labour is not a commodity’; and in levelling the playing field thus
ensuring the avoidance of ‘lowering standards’ by employers and the improvement of
productivity and economic performance”. Furthermore, this document indicates this
significantly elevates the importance of the ILO’s eight core conventions. A key obligation
this places on member states is stated as “by virtue of membership to the organisation,
member states are obligated to the provisions of these eight core conventions irrespective of
whether or not the concerned member state has ratified the relevant convention”(ILO,
2009:9b). Based on this, ILO Member States are “expected to undertake application of these
conventions in national law and practice, but also, to report on its application at regular
intervals as determined”.

9 The 2008 Declaration on Social Justice for a Fair Globalization builds on the 1944 Declaration of Philadelphia as
well as the 1998 Declaration on Fundamental Principles and Rights at Work becoming “the third major statement
of principles and policies adopted by the International Labour Conference

11
2.2.1. Convention No.87 - Freedom of Association and the Right to Organise

The UN special agency maintains’ “freedom of association is a basic human right that is at
the core of [its] values”. It is a right enshrined in the ILO Constitution (1919 as amended) and
through key documents, which were signed between 1919 and 2019.10It is further codified in
various legal instruments both nationally and internationally.C.87 is one of the fundamental
conventions defined by Charnovitz (2008:1) as a “bedrock principle of international labour
law”.Core to C.87 is the right enthroned in Article 2 that “all workers and employers, without
distinction, shall have to establish and to join organizations of their own choosing without
previous authorization”. The objective herein being to protect the autonomy and
independence of worker’ and employer’ organizations in relation to public authorities’
interference in their establishment, functioning and dissolution. As signatories to this
convention, member countries are obligated to have laws that do not impair the application of
the convention.

A key provision contained in Part 2 of the convention relates to an undertaking by ILO

member states to ensure "all necessary and appropriate measures to ensure that workers and
employers may exercise freely the right to organise”. Historically, there is ample evidence to
show that independent employer and worker organizations have in many cases played a
significant role in their countries’ democratic transformation. In South Africa, for example,
the development of trade unionism was embedded in freedom of association and core to the
demise of apartheid. Informed by this, it can be argued that trade unionism in the country is
an expression of freedom of association.

From this example, one can deduce the importance of C.87 for workers’ right of
representation. In 2008, an ILO initiated process resulted in the third global report on
Freedom of Association11reflected mixed results in that allegations concerning the denial of
civil liberties had decreased whilst the largest single category of allegations, both globally
and by region, concerned acts of anti-union discrimination. According to this report (2008:9),
“allegations of anti-union discrimination have increased, from 23 per cent in 1995–2000 to 26
per cent in 2000–07”. This report further shows an increase in relation to allegations of
employer interference in trade union activities as well as those related to collective
bargaining rights.

10 The ILO constitution and various declarations reinvigorating and re-emphasising its relevance: Declaration of
Philadelphia (1944), Declaration on Fundamental Principles and Rights at Work (1998), Declaration on Social
Justice for a Fair Globalisation (2008); Centenary Declaration for the Future of Work (2019); and Universal
Declaration of Human Rights (1948).
11 The 2008 ILO Global Report on Freedom of Association sought to establish the level of interest in the matter by
member states as well as progress in the ratification

12
It was also concluded that in some cases, countries that have not ratified this convention
‘were’ mostly those ILO member states that are densely populated or with the greatest
industrial importance. From this, it can be concluded that a great number of workers and
employers were not beneficiaries of the protection established by the C.87, LRPs amongst
these. Sadly, to date and in respect of this fundamental human right, these challenges remain
all over the world. The same report alluded to the situation in many countries that experience
“involved grave violations of civil liberties, including murder, abductions, disappearances,
threats, arrests and detentions of trade union leaders and members, as well as other acts of
anti-union harassment and intimidation, violations of freedom of assembly and of freedom of
expression. Closely linked with such violations are delays in the administration of justice,
which sometimes reinforce a climate of impunity, violence and insecurity” (2008:10). These
practices are certainly in breach of the provisions of C.87, which guarantees the principles of
freedom of association.

In reflecting on these trends, the report concluded by acknowledging that “while the basic
institutional frameworks for the exercise of the right to freedom of association are
progressively being put in place, the practical problems of implementation call for more
action”(2008:9). This matter of implementation remains a general problem for the ILO.A key
element of freedom of association is collective bargaining covered by Convention 98.
C.98Article 1 sets out rules on union freedoms and collective bargaining mainly ensuring that
workers are protected from discrimination because of their membership or engagement in
union activities. The important articles of this convention relevant to this study are articles
112; 213 and 614. Interestingly, whilst the first two cover anti-discrimination, the last stipulates
non-coverage of “public servants engaged in state administration”. This seems to contradict
part 2 Article 4 of Convention 151 on Labour Relations (Public Service) which states “public
employees shall enjoy adequate protection against acts of anti-union discrimination in respect

12 Articles 1
1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their
employment.
2. Such protection shall apply more particularly in respect of acts calculated to--
a) make the employment of a worker subject to the condition that he shall not join a union or shall
b) relinquish trade union membership;
c) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of
participation in union activities outside working hours or, with the consent of the employer, within working
hours.
13 Article 2
1. Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each
other or each other's agents or members in their establishment, functioning or administration.
2. In particular, acts which are designed to promote the establishment of workers' organisations under the
domination of employers or employers' organisations, or to support workers' organisations by financial or other
means,...
14 Article 6
This Convention does not deal with the position of public servants engaged in the administration of the State, nor
shall it be construed as prejudicing their rights or status in any way.

13
of their employment” save for essential service workers defined as “engaged in services that
give threat to life”.

2.2.2. The ILO supervisory mechanism

One of the key things that define the ILO is “it’s standard setting-mandate and the impressive
record of human rights treaties produced thus far” (ILO, 2019b:1). It thus should not be a
surprise that the Social Justice Declaration emphasises the point that its standard-setting
policy must be promoted as a cornerstone of its activities in order to enhance its relevance in
the world of work. This leads one to conclude that in order to achieve its constitutional
objectives, its supervisory system remains critical. Informed by “longevity and resilience to
diversity and crisis” (ILO, 2019b:1), the organisation retains two approaches that apply in
this system, namely, regular supervision and special procedures. The former relates to the
Committee of Experts on the CEACR which positions as it as “the main supervisory
mechanism addressing all conventions”, whilst the latter focuses on allegations of breach of
specific conventions and include the CFA.

(a) The Committee of Experts on the Application of Conventions and

Recommendations

Abi-Saab (2019:24) argues the ILO “has also innovated in developing new techniques in
pursuit of its objectives, such as the system of reporting and scrutiny of reports through the
CEACR, and in assisting member States in integrating protective norms in their ‘domestic’
legal systems”. The CEACR effectively enquires on the implementation of all conventions
and reviews member states reports on the application of these instruments in law and
practice. In its webpage, the ILO points out that such an observation elicit two main
responses from these experts, observations and direct requests. The former covers “comments
on fundamental questions raised on the application of the specific convention” whilst the
latter covers “technical questions for more information” communicated directly to
governments.

(b) The Committee on Freedom of Association

The importance of freedom of association to the ILO led to the elevation of this principle to
levels where it necessitated the establishment in 1951 of the special committee, namely the
CFA, to consider allegations of violations of freedom of association. This approach is
presented by the organisation “lawyers and jurists” as an innovative procedure in
international law (ILO, 2019b). In its publication titled ‘Rules of the Game’, the ILO (2019b:
114) mentions that, for the purpose of examining complaints of violations of freedom of
association, it really does not matter “whether or not the country concerned had ratified the

14
relevant Conventions” but the CFA will deal with allegations. Figure 2.1 presents the
freedom of association procedure of the CFA which has been used in the past 70 years to
examine 3,300 cases pertaining to violations by the ILO member states.

Figure 2.1. The freedom of association flow chart

Source: International Labour Organisation (2019b: 114)

In accordance with Article 24 of the ILO’s Constitution, such complaints may be brought
against a member country (whether or not it is party to the convention); by employers and
workers organisations.15 For example, the case under scrutiny in this study was initiated by a
mandate trade against the government of South Africa to complain about the allegations at its
embassy in Dublin. Even employer organisations regularly bring forward complaints against
states, as in the case number 2254 which concerned the alleged violations by the government
of Venezuela.16Year-on-year, the committee reviews many cases and has reputably built
jurisprudence in the relevant matters. Its findings are considered when determining the cases
in domestic courts around the world (see Thomas, Oelz & Beaudonnet (2004); Teklè (2018)).

Critical to note is the fact the CFA complaint procedure is not intended as a punitive measure
to governments but simply a process of dialogue to resolve the allegations. This is the reason
why it has to first establish and confirm whether the complaint is receivable17. Various

15 Article 24 Representations of non-observance of Conventions

1. In the event of any representation being made to the International Labour Office by an industrial association of
employers or of workers that any of the Members has failed to secure in any respect the effective observance
within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this
representation to the government against which it is made, and may invite that government to make such statement
on the subject as it may think fit.

16 Fedecamaras alleged failure by the Government to comply with the recommendations of the Committee on
Freedom of Association and marginalization and exclusion of employers’ associations from decision-making
process.

17 The committee establishes the facts in dialogue with the government concerned and verifies the complainant’s
authenticity (employers’ or workers’) organisation; if the complaint is presented in writing and signed and whether

15
remedial activities are available for consideration with the government concerned expected to
implement and report progress to the ILO. Depending on the veracity of the case, the CFA
may propose a direct contacts mission to the government concerned. This ensures direct
dialogue with the country’s social partners to address the problem. Naturally, this system
contributes to international law that operates within a specified space. However, the concern
is that the ILO law has not done much to improve the working conditions of workers
employed in diplomatic missions of states. This should be expected because an
overwhelming number of governments could be complicit to the violations of C. 87 and other
conventions in as far as the LRPs are concerned.

Noteworthy on the importance of this committee was that the Covid-19 crisis did not suspend
governments’ obligations to the ILO. According to the ILO website, amongst the nine
Southern African Development Community (SADC) member states observed, there are
currently forty-nine active alleged violation cases in the region.18 Common is the violation of
trade union rights. This encapsulates non-adherence to collective bargaining; interference in
trade union affairs, restrict time-off for union leaders, wage freeze; arrest, detentions and
intimidation of trade unionist and deregistration of unions. To the roving eye, the established
ILO supervisory mechanism seems is functional but scrutiny exposes that it is extremely slow
and without bite. For example, an analysis of some cases in the ILO’s Information System on
International Labour Standards (NORMLEX) page shows that in the case of Mauritius, the
country has nineteen active cases dating back from 1969. Clearly no justice can be seen to be
derived from a period spanning fifty-two years. Zimbabwe has fourteen active cases dating
back to 1981.

According to the ILO webpage, of the nine observed countries, only South Africa had active
cases lodged within the last year (2020). Certainly improvements to the system is no longer a
luxury but urgently needed. The tripartite ILO constituencies should consider introducing
timeframes for the consideration of the alleged violation of standards. These can be
considered in a staggered manner, that is, core conventions given priorities. Consideration
should also be made to the introduction of punitive actions during the term of considering the
complaint. For example, two of the SADC member states who ascended to the Governing
Body in June (2021), i.e. Eswatini and Malawi, have long-standing active cases against them.

substantively such allegations are not political in nature. On confirmation, a report is presented with
recommendations and specific remedies.

18 Cases concerning SADC states: Botswana 2 (2009); Eswatini 4 (1999, 2001); Lesotho 2(1992); Malawi 1(1992);
Mauritius 19 (1969,1985); Mozambique 1(2017); South Africa 2(2020); Zambia 4(1981, 1998); Zimbabwe 14
(1996, 2002).

16
The question is, should failure to resolving a complaint over a specific period of time not be
penalised by, for example, not qualifying to be in any leadership position within the
organisation especially the Governing Body? This could serve as a deterrent for states to
improve compliance.

2.3. The international instruments governing the relations between states

Diplomatic immunity seems to have become the first point of reference by states when they
plead against claims of unfair labour practice by workers in the employ of their foreign
missions. This has created an enclave where labour laws do not reach as Immunity has
become a powerful weapon in the hand of foreign missions to thwart the vindication of
employee rights especially since the FPRW committed by the ILO Member States to respect
and promote principles and rights of workers.19These include among others a commitment to
ensuring freedom of association and the effective recognition of the right to collective
bargaining, whether or not they have ratified the relevant conventions. The declaration makes
it clear that these rights are universal, and that they apply to all people in all states -
regardless of the level of economic development (ILO: 2019b).

When dealing with the interaction between labour law and diplomatic law, it is necessary to
explore the score and nature of diplomatic immunity ratione-materiae under the VCDR, i.e.
immunity from prosecution that allows an accused party to avoid prosecution for criminal
offences. The technicalities of diplomatic immunity are beyond the scope of this study.
However, Xinxiang (2020) distinguishes between immunity of states and immunity of
individuals (inviolability of the diplomatic agent). What is important is that states and those
performing certain functions on its behalf enjoy protection from the laws of another state.
The concern is that this protection is creating challenges for the individuals that diplomatic
missions employ. The reason for this unpalatable situation is that the LRPs are trapped in a
legal vacuum where they are unable access labour rights. Even in the event of an employment
dispute they have nowhere to turn. Jurisdictional issues prevent domestic courts from hearing
cases involving embassies and diplomats. To gain more insights on the provisions of
international law regarding immunity, both the VCDR and VCCR are discussed below.

2.3.1. The Vienna Convention on Diplomatic Relations

There is general acceptance in the diplomatic circles that the Vienna Convention on
Diplomatic Relations echoes the codification of customary international law on diplomatic

19 The Declaration identified four core principles: freedom of association and the effective recognition of the right to
collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child
labour; and the elimination of discrimination in respect of employment and occupation.

17
immunities and privileges. Adopted in 1961, Denza (2016: 1) argues that this multilateral
treaty can be viewed as “the most successful of the instruments drawn up under the United
Nations framework for codification and progressive development of international law”. In
agreement, De Jager (2018) also suggests that this instrument does not only codify pre-
existing principles of customary law, but it also resolves points of differences among states.
In simpler terms, the VCDR has proven useful in saving states from embarrassing one
another with litigations and or arrests in situations where there could be prosecutable cases.
As a result, this broad coverage explains the “near-universal participation by sovereign
States, the high degree of observance among States parties and the influence it has had on the
international legal order” (Denza, 2016: 1). To date, this instrument continues to be
indispensable in this space.

Articles 22 as well as 29 to 40 outline privileges in accordance with status and function of

individuals employed in embassies, as such, distinguishes between diplomatic and support
staff (non-diplomatic personnel). For instance, the VCDR provisions confer the highest
degree of protection on diplomatic agents, and this protection is virtually absolute due to the
nature of the functions they perform.20 With this fortification, they cannot be subjected to the
host country’s domestic courts.21Gericke (2014, pp: 2620) argues that this can be “construed
as a non-reviewable political decision binding” domestic jurisdictions. It is nonetheless
critical to note this treaty does not afford diplomats carte-blanche for misconduct. They are
still obliged to conduct themselves in accordance with the laws of the receiving state (Witiw,
1988).

In the event of misconduct, the sending state has the authority to take action such as recalling
the agent or waive his/ her diplomatic immunity. In the event of serious accusations, the
sending state could even decide to pursue criminal charges back home as such immunity does
not apply there.22On the other hand, the host state can expel diplomats who abuse their
privileges (Witiw, 1988). (Witiw, 1988: 345) adds that expulsion or persona non grata “is an
efficient and effective means of curbing the potential abuse of diplomatic immunity”. 23 As a
point of interest, there is no evidence which suggests that a state can go as far as straining
diplomatic relations with another state as a result of the labour conventions violations by its
mission and diplomats.

20 VCDR Art 29: The person of a diplomatic agent shall be inviolable…

21 VCDR Art 31 (1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State….Note, there are some exemptions…
22 VCDR Art 31 (4): The immunity of a diplomatic agent from the jurisdiction of the receiving state does
not exempt him from the jurisdiction of the sending state.
23
There are three justifications for this action: one, diplomats can be expelled if they violate United Nations
agreements such as the Head-quarters Agreement, the United Nations Charter, and the General Convention.

18
2.3.2. The Vienna Convention on Consular Relations

As with the VCDR, the VCCR extends diplomatic immunities and privileges to host
agreements covering Consular representation. Milhaupt (1988: 843) states that the VCCR
codifies “international law on consular immunities providing consular officers and consular
employees” with protection from the “jurisdiction of the judicial or administrative authorities
of the receiving State in respect of acts performed in the exercise of consular functions”.
Milhaupt (1988: 843) further asserts that this instrument maintains the basic difference
between consular and diplomatic' immunities, that is, they “enjoy immunity from legal
process only in respect of official acts, whereas diplomatic agents have full personal
inviolability and immunity from legal process”. This dissimilarity suggests that failure by a
consular employee to respect the laws of the host country can result in judicially enforceable
charges. Comparatively, the VCCR thus offers limited immunity in relation to the VCDR.

A critical conclusion on both these instruments (diplomatic and consular immunities) rests on
what Milhaupt (1988) states as theoretical acceptance of functional necessity to manage the
interests of both countries to the agreement. As an acceptable norm, this contributes to
ensuring these state agents’ have the necessary protection to their work environment.
Interestingly, there exists no uniform legislative approach in the application of these
instruments. Some member states have adopted varying methods in considering immunity.
Garnett (2015) outlines these considerations as context or location of employment; status and
duties of employees; territorial connection between the forum, the employee and the
employment contract as well as isolation and characterisation.

Whilst acknowledging these instruments, that is, VCDR and VCCR, were developed with a
specific focus on diplomatic relations, sadly they lack coherence with other international
instruments especially the ILO standards that represents the rights of all workers, especially
their protection from abuse. Reflecting on labour and law, Davies & Freedland (1983: 18)
argue that “the main objective of labour law is to counteract the inequality in bargaining
power inherent in employment relationship…” Thus, these diplomatic instruments haven
proven to trump the fairness required for any labour relations. This raises the questions on the
hierarchy of diplomatic law in relation labour law. The question that be answered is: Does the
diplomatic immunity of foreign diplomats prevail over the protection afforded to employees?
A response to this can be observed for the domestication of these instruments detailed in the
forthcoming sub-sections in this chapter.

Nonetheless, South Africa’s supreme law enacted the 1966 Constitution serves as a
foundation for “a democratic country free of oppression and discrimination”. The Preamble

19
states that the Constitution was adopted to “heal the divisions of the past and establish a
society based on democratic values, social justice and fundamental human rights”. Therefore,
the domestication of international law and protection of human rights (labour rights) are
enshrined in the Constitution. The following sub-section deals with South Africa’s labour
legislation framework.

2.4. The South African labour legislative framework

The South African legal environment has various provisions on the role and status of
international law domestically. Procedurally, international law instruments including the ILO
conventions have to be domesticated to give effect as rights to nationals. The domestication
process relates to the codification of the rights in various domestic legal instruments. In
support of this position, Gericke (2014: 2627) asserts that “as a general rule, the provisions of
an international instrument so concluded, are not embodied in our law except by legislative
process … in the absence of any enactment giving [its] relevant provisions the force of law,
[it] cannot affect the rights of the subject”. The importance of this process is premised on
what Meyersfeld (2013:399) describes as “the friction between the state’s law and
international law which often revolves around the rights of the individual”. This could lead to
serious tensions between the international law concerned and domestic policies embedded in
the national constitution. To manage this possible conflict, specific provisions are established
in which the executive and legislature must follow for the international law to become part of
national law.

For South Africa, these are given effect in amongst others the constitution, the Labour
Relations Act 66 of 1995 (LRA), the Basic Conditions of Employment Act 75 of 1997
(BCEA), the Employment Equity Act 55 of 1998 (EEA), and the Foreign States Act 26 of
2019 (FSA) operationalised through the Foreign Service Code (FSC). These provide a
comprehensive legislative basis relevant to a labour market espousing decent work.

2.4.2 South Africa’s labour market legislative regime

Section 213 of the LRA defines an employee as “any person, excluding an independent
contractor, who works for any person or the State [own emphasis] and who receives, or is
entitled to receive, any remuneration); and “any person who in any manner assists in carrying
on or conducting the business of the employer”. A key element of this definition and relevant
to this study relates to recognition of “any person who works for the state” as an employee.
Thus, state workers enjoy the necessary protection accorded to all workers. Unambiguously,
no reference is made to the nationality of these employees nor to the territory of his or her
workplace. Gericke (2015: 2602)points out that “no reference is made to ‘workplace’ in the

20
context of a foreign embassy in the receiving State, either by an express inclusion or
exclusion, or due to the fact that such premises are considered as foreign territory by the
legislator”. It is therefore unclear why there is a misconception that the employees who are
employed at diplomatic missions abroad are not covered by the South African laws.

In the same vein, Gericke (2014: 2607-08) mentions that, in defining an employer, the BCEA
provides “a mirror image of the definition of an ‘employee’ in the LRA” stating first an
employer being any person “who employs or provides work for any other person and who
remunerates, or expressly or tacitly undertakes to remunerate the other person”. Second, it
also regards the employer as someone “who permits any other person in any manner to assist
in the carrying on or conducting of his, her or its business, including any person acting on
behalf of or on the authority of such employer” (Gericke, 2014: 2607). As it will be seen in
the next chapter, the South African courts have considered the cases of citizens employed in
state entities and missions abroad. It would be interesting to learn how the disputes
concerning the nationals of other states employed in the South African embassies. But South
African law forbids the consideration of claims pertaining to employment contracts by any
member of an embassy or consulate (Browser, 2015).

2.4.3 Inter-state diplomatic relations and labour law

The Diplomatic Immunities and Privileges Act (37 of 2001) or DIPA, grounded on the
VCDR and the VCCR, confers immunities to all diplomats and consular missions and their
families in South Africa. Gericke (2014: 2610) argues that this law “removed any
uncertainties on the scope of application” of these two instruments in the country. It further
domesticates the VCDR, VCCR, the Convention on the Privileges and Immunities of the
United Nations of 1946 and the Convention on the Privileges and the Immunities of
Specialised Agencies of 1947 and therefore gives them “the force of law in the Republic”.
This confirms the acceptance by the country of its international obligations in relation to all
individuals entitled to immunity from civil and criminal jurisdiction in the courts of South
Africa.

What options does this offer to LRPs subjected to unfair labour practice in relation to
inviolability considering that Article 22 of Schedule 1 of the VCDR proclaims that “the
premises of the mission shall be inviolable”? Section 15 of the DIPA places more stringent
obligation by indirectly requiring an employee who takes legal action against a diplomat or
consular agent as an employer to take "reasonable care" in doing so. One can thus conclude,
as Gericke (2014) articulated, that “the position of an employee who needs to rely on legal
protection in terms of labour law within the framework of diplomatic immunity [is]

21
extremely vulnerable in view of the limitation of their employment rights and the lack of
liability afforded to diplomats and consular employers by the various international law
instruments”. De Jager (2017) cautions that anyone doing business with the diplomatic and
intergovernmental organisations should be aware of the inherent risks involved and the
complicates that may arise from the diplomatic immunity. This includes employment in these
establishments.

2.4.4 Mission Consultative Forums

In the process of circumventing its responsibility in line with C.87 of recognising a legitimate
worker representation body, that is, trade unions, the South African Government has resorted
to establishing LRP Consultative Forums. According to guidelines developed by the
Department of International Relations and Cooperation (DIRCO), these forums shall be
referred to as the Mission Consultative Forums (MCFs). Interestingly, the rationale for the
establishment of these forums is purportedly embedded in the letter and spirit of the
Constitution of South Africa especially the foundational values of the South African nation. It
is argued that these bodies are created to facilitate effective communication between the
management and LRPs for the resolution of mutual matters. This means that collective
complaints and concerns are dealt with timely and effectively to prevent their escalation.

A very interesting aspect of this body is that “it shall be chaired by the second most senior
transferred official” in most cases the deputy ambassador. It also has to incorporate one
additional transferred official preferably the corporate service manager. It boggles one’s mind
how a country like South Africa believes this creates a free and unadultered environment for
fair labour engagement. As pointed earlier, this is the worst case of the violation of the
prescripts of C.87. The essence of joining a trade union is the technical expertise support it
renders to employees. Not only does it give an independent authoritative voice to the
downtrodden, the collective expertise it provides cannot be derived from the MCF. That MCF
affords LRPs a platform to bargain cannot by any means be equated to trade union
representation. In summary, these fora present a pseudo sense of security and ensure LRPs
are maintained in a perpetual state of weakness.

2.5. Conclusion
This chapter analysed international law from both the diplomatic and labour perspectives and
its applicability to employment rights of the locally recruited personnel in the diplomatic
environment. At global level, diplomatic treaties guide the manner in which states relate to
another and the international labour standards establish basic principles and rights at work,
with a goal to improve working conditions on a global scale. The existence of diplomatic
treaties and labour standards reveal ongoing tension that adversely impact the LRPs and also
22
undermine their rights to access justice in an event of a labour dispute. The next chapter
presents this phenomenon in detail through a number of cases that involved states and the
LRPs. This will be followed by a detailed analysis and proposals in Chapter 4.

23
3. The South African case in Ireland and other selected cases
concerning the violations of the ILO Convention 87 and
other labour conventions at diplomatic foreign missions
3.1. Introduction

The employment of the LRPs at diplomatic missions all over the world remains precarious
and indeterminate. As regards to the latter, domestic and international laws do not
specifically protect the employment rights of the non-diplomatic personnel at foreign
missions in comparison to their diplomatic counterparts who normally have employment
contracts with headquarters of their governments back home or with international
organisations. In this environment, freedom of association of the ILO Convention 87 does not
seem to include the LRPs. Despite the enduring evidence of abuse and trafficking allegations
affecting LRPs, especially as domestic workers, there is no action to stop the violations of
worker rights by countries, embassies and diplomats. In this regard, Ungoed-Thomas (2010)
reported that the members of the diplomatic community trafficked women as slaves. In
another report, diplomats in the US also abused their diplomatic position for human
trafficking of domestic workers and enslaved them. In 2019, a British tribunal ruled the rules
covering immunity should not apply to extreme cases involving things like slavery and
human trafficking (Elks, 2019).This study argues that countries, as individuals and or as a
group, are not doing enough to address wrongdoing by embassies and diplomats in as far as
the violations of labour standards are concerned.

The problems facing LRPs are not confined to developing countries but they also involve
developed countries. In terms of the records of the ILO, an impression is made that only
developing countries in Africa, Asia and Latin America are culprits in undermining worker
rights including freedom of association and collective bargaining as well as other challenges
pertaining to employment of workers. Almost all countries and international organisations
struggle in ensuring worker rights for the LRPs they employ. As for developed countries of
the North including the Britain, United States and the EU member states, they have placed
themselves as leaders in the promotion of employment rights across the world. The US, for
example, incorporates labour considerations in unilateral trade schemes such as the
Generalised System of Preferences (GSPs) and African Growth and Opportunity Act
(AGOA). The EU uses the Economic Partnership Agreements (EPAs) and the GSP+ to
compel beneficiaries to ratify and implement the ILO’s fundamental conventions (Curtis &
Echeverría, 2021). However, evidence suggests that developed countries are as complicit to
undermining worker rights as their developing equivalents.

24
Notwithstanding the fact that both the developed and developing countries have ratified many
human rights and labour conventions including the ILO Convention 87, they appear to
prioritise diplomatic relations and enforcing diplomatic immunity at the expense of the rights
of the locally recruited personnel in their diplomatic missions abroad. The countries either
violate the LRP labour rights or are complicit in the actions of diplomatic missions that are
situated in their territories. States would rather uphold inviolability of sovereign rights of
states and or enforce diplomatic immunity to cushion both embassies and diplomats when the
problems concerning the labour rights of the LRPs arise. Novitz (2018) points out that the
freedom of association is generally regarded as a universal human right. In recent years,
however, the transnational relationships between actors have brought fresh challenges in
ensuring international human rights protections including their effects on domestic protection
of freedom of association. Hadebe (2021) asserts that the current debate mainly concentrates
on the conduct of international business actors and a number of instruments continue to
emerge at both multilateral and state levels.24 It is however quite concerning that
transnational relationships between states are not receiving similar attention. This therefore
appears to suggest that states cannot be held to account for labour rights violation occurring
overseas.

The previous chapter focused on the labour legislative regime at international and domestic
levels. It is clear that there are no legal mechanisms that are solely dedicated to the
employment of the LRPs at diplomatic missions. As a result, the ILO and domestic courts
have no uniform approach in dealing with the labour cases involving the LRPs. This chapter
therefore focuses primarily on the South African struggles with separating state immunity and
labour law. The case between the government and LRPs in its embassy in Ireland forms the
base of the discussion. Other incidences involving South African diplomatic offices and staff
are going to be cited to illustrate the point. In addition, a group of selected cases drawn from
various jurisdictions across the world are also presented to illustrate the complexity of the
problem that continues to be in the blind spot of the ILO, states, labour market practitioners
and human rights activists alike. These cases primarily concern the violations of the ILO
Convention 87 and other labour conventions over the past two decades at diplomatic foreign
missions.

24 Some of the prominent business and human rights initiatives include instruments the treaties such as the Universal
Declaration of Human Rights and the ILO conventions, and a plethora of voluntary mechanisms, i.e. the UN Guiding
Principles on Business and Human Rights (UNGPs), OECD Guidelines for Multinational Enterprises, ILO Tripartite
Declaration of Principles concerning Multinational Enterprises (ILO MNE Declaration), and the UN Sustainable
Development Goals (SDGs). Certain national laws include California Transparency in Supply Chains Act; French
Duty of Vigilance Law; UK Modern Slavery Act.

25
3.2. The case between the LRPs and South African embassy in Ireland

The South Africa case at the ILO which started in 2002 and concluded in 2005, the tension
between labour law and diplomatic law was evident, see Case No 2197. In this case, the
Union of Retail, Bar and Administrative Workers was embroiled in a legal dispute with the
South African embassy in the Republic of Ireland. The union alleged that the embassy was
refusing to meet and negotiate with the union chosen by the locally recruited personnel to
represent them. As previously indicated, South Africa has ratified both Conventions 87 and
98. The union deemed that there were sufficient conditions to hold the embassy, as the
representative of the sending state (South Africa), as obliged by international law to
implement the international labour standards. To its surprise, the embassy evoked the
diplomatic immunity and refused to recognise the union.

According to the data on the ILO website, the ambassador, in her capacity as a representative
of the diplomatic mission, wrote that “due to its diplomatic status and nature of its activities,
it is not policy of the Embassy to negotiate or work through a third party in relation to issues
relating to labour relations”. In turn, the trade union alleged that the South African
government and its mission were in breach of Conventions 87 and 98. A charge that the
government rejected on grounds that neither the South African constitution nor statute law
applied to the employment by an embassy of the LRPs. The members of the Union of Retail,
Bar and Administrative Workers then embarked on strike action and picketing in protest
against the conduct of the embassy. Attempts by the Irish Labour Relations Commission to
bring the parties to enter into meaningful discussions regarding pay and conditions and
recognition of the LRP trade union were not successful. Other forms of arbitration hit a
grinding deadlock which left the union members to look elsewhere for help.

In an unprecedented move, the union lodged a complaint with the ILO in an effort to force
the South African government to oblige to its demands. The Committee on Freedom of
Association (CFA) decided that the case was receivable based on the following reasons.
Firstly, there was a need to determine if the actions of the embassy were not contrary to
international standards. Secondly, the committee argued that the Conventions 87 and
98applied to LRPs without prejudice and also permit them to form and join organisations of
their choice. Thirdly, there was a need to confirm whether the LRPs were not public servants
engaged in the administration of the South African state.

Among the first steps towards addressing the case, the CFA invited the Irish Government to
pronounce on whether Irish law governs the employment relationship between LRPs and
embassies. Using its experience in the case which involves the so-called Burke case

26
(discussed in detail in subsection 3.4), the Irish government submitted that this depended on
the nature of the employees’ duties in the embassy. In short, the Irish government distanced
itself from giving an answer that would have put it at loggerheads with their South African
counterparts. This was a clear indication that states would rather prioritise diplomatic
relations than siding with the LRPs in the event of an employment dispute. But what also
transpired in this case was that the locally recruited personnel are treated as “stateless” in as
far as the protection of their employment rights are concerned. South Africa insisted that the
LRPs were employed under the Irish law and Ireland’s stance on the matter was not clear. In
light of this situation, it became apparent that the ILO had no clear guidelines or rules
governing the employment situations of people employed in diplomatic settings.

The CFA noted that it would be anomalous to abandon the locally recruited personnel in this
case at the international level merely because of an ambiguous situation relevant to the
application of national law. It resolved that South Africa had to take responsibility for the
LRPs in lieu of the uncontested sovereignty it maintains over its government officials and
employees representing it around the world. South Africa would therefore be held liable for
violation of the labour standards or principles relative to freedom of association and
collective bargaining should it be found that the complaint was valid. The Committee waited
until the 93rdSession of the International Labour Conference (ILC) held from 31 May to 16
June 2005 to release its findings and conclusions.

On its part, the South African government stated that the LRPs in its embassies were entitled
to representation in respect of work-related issues. It then recommended and encouraged its
embassies to establish policies and procedures for the resolution of work-related disputes,
such as grievances and discipline. Prior to this, South Africa and the trade union announced
that the parties had reached an amicable agreement to formalise the relationship between the
parties and secure the effective observance of Conventions 87 and 98. The Recognition and
Procedural Agreement stated that the government would endeavour through the principles of
social dialogue to arrive at an amicable solution to this case. As a result, the trade union
formally withdrew its complaint and the government undertook to implement the agreement.
In this way, South Africa avoided the possibility of a finding for violations of Conventions 87
and 98.

The case that promised so much in terms of “piercing the diplomatic immunity veil”, as
Gericke (2014: 2601) puts it, delivered almost close to nothing in the end. There was clear
reluctance on the part of the ILO system to state in clearer terms to its member states that
Conventions 87 and 98 apply to LRPs in a non-discriminate manner. The ILO has no

27
mechanism to deal with the violation of international labour standards or principles relative to
freedom of association and collective bargaining by member states and their diplomatic
missions and diplomats. Most importantly, the ILO failed to cease the opportunity to at least
push its constituencies to develop a standard and or recommendation that would govern the
employment of locally recruited personnel in diplomatic settings.

The outcome of this indecision at multilateral level relegated this important decision to
individual states to develop guidelines for diplomats and embassies employing locally
recruited personnel, see the non-binding policies developed by South Africa and Switzerland
in this regard.25At its foreign missions, South Africa introduced the LRP Consultative Forums
in place of meaningful collective bargaining as well as to prevent the responsibility of dealing
with trade unions. Sadly, these ineffective forums lack the requisite expertise embedded in
trade union to represent their members and have thus generally not delivered the goods, and
in most cases they no longer exist. It therefore does not come as surprise that the employment
rights of the locally recruited personnel are not receiving attention they deserve. The
following subsection deals with individual cases involving LRPs at South African embassies
that are/ were exacerbated by lack protection and representation.

3.3. Other individual cases involving LRPs at South African missions

It is not a coincidence that the Convention 87 is billed as one of the eight fundamental
conventions of the ILO since it contributes to the fundamental principles and rights at work,
see the FPRW introduced above. This inevitably means that any violations of labour rights at
work may be directly or indirectly linked to lack of freedom of association, protection of the
right to organise and collective bargaining. Therefore, the incidences involving the LRPs at
South African diplomatic missions carelessly expose vulnerability of workers as well as
failure by the state to enforce employment labour standards. What is even more disturbing is
that the fundamental conventions are supposed to be binding everywhere in the world and are
also not dependent on ratification by states. The exclusion of the LRPs in this universal
protection appears to suggest that they live in outer space and that they do not deserve to be
entitled basic labour rights at work.

25 Different countries such as France, South Africa and Switzerland decided to formulated their own rules to manage
the employment of LRPs in diplomatic settings. In 1998, the Swiss Federal Department of Foreign Affairs developed
the Directive on the hiring of private servant by staff members of diplomatic missions, permanent missions, consular
posts and international organisations in Switzerland, as amended respectively in 2006 and 2011. in 2011 the South
African foreign ministry adopted the Policy on the Management of Diplomatic Immunities and Privileges in the
Republic of South Africa which provides the guidelines on unfair dismissal disputes involving the LRPs employed by
foreign missions based in South Africa.

28
 3.3.1. The Nkosi case at the Geneva Mission

On 13 August 2018, the Ambassador to the South African Permanent Mission to the United
Nations Office at Geneva and other International Organisations in Switzerland unfairly
dismissed a locally recruited consular clerk and South African national, Zinhle Nkosi,
without following due processes. The employee “was fired on the spot for not going to work
while sick, although she claims she had a doctor’s note excusing her” (Saba, 2019). She was
then given ten minutes to leave the embassy building in what she saw as a procedurally and
substantively unfair dismissal. The embassy maintained that although Nkosi was a South
African citizen she had been employed as an LRP and was therefore subject to the labour
laws of Switzerland, which the LRPs complained that they were not even followed when she
was relieved of her duties. Nkosi’s case tested the applicability of the South African labour at
embassies abroad; and this could be relevant in instances where the LRPs (and diplomats) are
involved.

Nonetheless, in the case concerning Tebogo Brian Monare who was unfairly dismissed by an
foreign branch of a state-owned entity, the Labour Appeals Court ruled that could have his
case heard at the Commission for Conciliation, Mediation and Arbitration (CCMA), see
Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC).26In deciding the jurisdiction, the
court stressed that “the SA Tourism’s London office was not divorced or separate from its
South African office, which means that the LRA (discussed in Chapter 2) was relevant for the
case. The implication of this ruling was that the CCMA had jurisdiction on the matter. De
Jager (2020: 6) reasoned that the London office was not a different undertaking to its head
office since both branches had the same purpose, which was to promote tourism in South
Africa.

At practical level, this could mean that South African labour laws have jurisdiction at the
country’s foreign missions, as seen in: Mxakato-Diseko v. Director General: Department of
International Relations and Cooperation and Another.27 At this point, however, it is not clear

26 The brief facts of the Monare case are as follows: Monare was employed in the London office of the South
African Tourism Board (also called South African Tourism, an entity of the state) as finance and administration
manager but he was dismissed on condition of misconduct and dismissed following a disciplinary hearing. The
employee then approached the CCMA to contest an unfair dismissal dispute. The CCMA found that the dismissal to
be procedurally fair but substantively unfair. As a result, it ordered Monare’s reinstatement with back pay. South
African Tourism applied to the Labour Court for reviewing and setting aside of the CCMA’s arbitration award. In
turn, the court concluded that the country’s LRA had no extraterritorial jurisdiction and therefore the CCMA lacked
jurisdiction. Dissatisfied with the outcome, Monare took the matter to the Labour Appeal Court which held that the
lower court erred in its review of the award granted by the CCMA. In motivating its decision, the Labour Appeal
Court found that the London office is not in fact separate but intricately linked to the South African undertaking.
Consequently, the court concluded that the CCMA had jurisdiction to hear the matter and the award was reasonable.
27 The brief facts of the Nkosi case are as follows:Nkosi lodged her case with the CCMA, but the foreign ministry
decided to settle the dispute. An investigation conducted by the foreign ministry concluded that the LRP had not
been dismissed according to the prescripts of the Foreign Service Code and thus recommended Nkosi’s

29
whether the CCMA has ever welcomed and presided over cases that involved the LRPs who
are not South African citizens. This could mark a significant departure point in piercing the
diplomatic immunity veil. Nonetheless, the Nkosi case presented a huge headache for the
South African foreign affairs ministry when the head of the mission approached the Labour
Court to oppose the decision by the headquarters, which she argued that did not involve the
embassy. It is probable that foreign ministry appreciated that a mission has no legal
personality separate and independent from itself but the ambassador insisted that the embassy
was within rights to act independently. According to the Labour Court, the ambassador
challenged the settlement as unlawful and even instituted legal proceedings to have it
reviewed and set aside.

3.3.2. Conduct of individual South African envoys and other diplomats

From time to time, the conduct of individual South African envoys and other diplomats in
matters employer rights in their residences has long been a subject of interest in the media.
Gericke (2014: 2601) claims that this labour debacle concerns “the unlawful treatment to
their domestic employees in terms of the hours of over-time worked and related issues such
as minimum wages or overtime-payment”. The following incidences represent a sample of
cases that entailed bad treatment of LRPs by South African diplomats abroad:

 The Irish Independent newspaper reported that the charge d’affaires at the embassy in
Dublin was paying her servant just €1.66 an hour and forced her to work 17-hour days
(Phelan, 2014). The diplomat allegedly brought a woman from Pretoria to assist with
housekeeping and to look after children. The employee lodged a complaint with the
Irish Labour Relations Commission after she fell ill and was then asked to return to
South Africa. This case added to many domestic slavery claims that had been initiated
against a foreign diplomat living in the Irish capital.

 South Africa’s acting ambassador to the US was accused of human rights violations
after he allegedly assaulted his servant at his Maryland home in April 1998 (Davies,
1999). The case was taken up by lawyers and human rights activists who labelled the
practice as an “indentured servitude”. The diplomat denied the allegations and the
government sided with him. He was later transferred to Pretoria when his term ended
to await a new senior foreign posting.

reinstatement. The Foreign Service Code is an antiquated document that does not adequately protect the LRPs in an
event of a dispute with the employer, in this case any of the South African diplomatic missions. The foreign ministry
then directed the embassy to settle the dispute with the LRP and to reinstate her. However, the embassy opposed the
directive from headquarters and insisted that the South African law was not applicable. It argued that Nkosi “could
only be reinstated but only if this was done in accordance with Swiss law with the Swiss Mission which was
responsible for such matters”.

30
  In 2009, a senior diplomat invoked diplomatic immunity to block an inquest by the
Irish Labour Relations Commission after a Ukrainian domestic worker had filed a
complaint regarding multiple breaches of her employment rights (Duncan, 2011).

3.4. The Government of Canada v. The Employment Appeals Tribunal and Burke

The cases involving embassies and LRPs create so much confusion when a labour dispute
arises. As seen in the case involving the South African embassy in Dublin, the LRPs and their
representatives decided to approach the ILO for assistance. In another case that also took
place in Dublin, in 1992 an LRP used the route of domestic courts to seek relief after he was
unfairly dismissed from his work, see The Government of Canada v. Employment Appeals
Tribunal and Burke.28 Similarly to the Monare case discussed in 3.3.1., the Irish Employment
Appeals Tribunal found in favour of the employee.

Also dissatisfied with the ruling, the Canadian government contested the award on grounds
that the tribunal acted without jurisdiction. It then took matter to the high court for it to quash
the tribunal’s determination by way of judicial review. The high court upheld the decision of
the tribunal which paved for the matter to be appealed to the Supreme Court. In the end, the
Supreme Court used the doctrine of sovereign immunity to quash the determination of the
tribunal. The legal basis for the decision was that the employment of an embassy chauffeur,
however, is within the sphere of governmental activity and accordingly the doctrine of
restrictive immunity applied. This outcome therefore closed the door for the local institutions
to settle disputes involving diplomatic missions and the LRPs.

3.5. The case of the United Kingdom in the United States

In 2005, according to the ILO website, the Committee on Freedom of Association considered
the allegations against the UK that its diplomatic mission to the United States “refused to
recognize and negotiate with the trade union chosen by the locally engaged staff to represent

28 The brief facts of the Burke case are as follows:Brian Burke was employed as a driver with the Canadian
Embassy in Dublin between 3 June 1986 and 16 May 1988, when he was dismissed. He brought
proceedings pursuant to the Minimum Notice and Terms of Employment Act 1973 and the Unfair
Dismissals Act 1977 before the Employment Appeals Tribunal. At the hearing before the tribunal the
solicitor for the Canadian government objected to the tribunal entering into an adjudication on the matter
and claimed that the government was entitled to sovereign immunity in respect of the proceedings. This
submission was rejected and the tribunal went on to award Burke compensation in the sum of £10,200.
The Canadian government sought to have the tribunal's determination quashed by way of judicial review
but the relief sought was refused by the High Court. The matter was then appealed to the Supreme Court.
The appeal was allowed and the determination of the tribunal was quashed. The doctrine of sovereign
immunity was one of the generally recognised principles of international law which Ireland had accepted
as its rules of conduct in its relations with other states. These generally recognised principles have so
developed as to depart radically from the absolute state immunity doctrine to a much more restrictive
view. The employment of an embassy chauffeur, however, is within the sphere of governmental activity
and accordingly the doctrine of restrictive immunity applied.

31
them; on the contrary, it allegedly unilaterally implemented changes in the terms and
conditions of employment of locally engaged staff and announced plans to set up a
management-dominated ‘Staff Representative Council’, inviting employees to go through
the Council rather than their union”. The complainants were the Association of United States
Engaged Staff (AUSES), the International Federation of Professional and Technical
Employees (IFPTE), the American Federation of Labour and Congress of Industrial
Organizations (AFL-CIO) and Public Services International (PSI).

In the circumstances that closely resemble the South African case, discussed under 3.2.,
another state generally to be in good shape in the protection of labour rights was involved in a
scuffle with trade unions due to alleged violation of C.87 at its diplomatic mission. In
addition to C.87, the UK has ratified C.98 and Convention and the Labour Relations (Public
Service) Convention, 1978 (No. 151). Nonetheless, the UK case was interesting and unique
because the UK embassy had previously recognised and bargained with the AUSES. The
AUSES was the legally recognised representative of the LRPs for almost 50 years on terms
and conditions of employment and adjustment of grievances. However, in December 2004
the majority of staff switched allegiances and joined another trade union IFPTE, and this
automatically made them the new representatives of the LRPs at the embassy under the Local
71 of the Federation.

The complainants alleged that the embassy responded to the employees’ choice of
representative by cancelling dues check-off and refusing to recognise and bargain with the
AUSES/IFPTE Local 71. From this point on, it began to take unilateral decisions such
denying workers overtime without bargaining with the worker representatives. This change in
approach created tensions with the AUSES/IFPTE but the conflict escalated even more when
on 1 April 2005 the embassy again took a unilateral decision to amend the conditions of
employment of the LRPs, i.e. salaries, pensions, health insurance, sick leave, overtime pay
and other matters central to the employment relationship. The representatives saw this as
disregard of the provisions of C.87 by the employer. In this regard, C.87 protects workers
from acts of anti-union discrimination by employers (ILO, 2006).29The embassy intimated

29 Par. 799 of the Digest of Decisions and Principles of the Freedom of Association Committee: One of the
fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of
anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial
measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to
perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced
on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee
of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the
fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom.

32
that the ILO conventions did not apply to the LRPs but the complainants did not support this
assertion.

Similar to the South African case, the ILO did not take a firm stance in rebuking the UK for
violating the labour rights of the locally recruited personnel at its embassy in the US.
Kowtowing and refusal to take a stance on the violation of labour rights in the diplomatic
missions of the ILO member states could be attributed to widespread problems even more
than diplomatic immunity per say.

3.6. Prevalence of labour abuses by diplomats and embassies

The Ministère Public and Republic of Mali v Keita case exposed the complication of the
employment conditions for the LRPs who do not enjoy no immunity from criminal
jurisdiction unlike their diplomat colleagues. As to be predicted, the decision of the court was
made easier by this unequal relationship.30 Even though the crime occurred during the hours
of service and on the premises of the embassy, but court found that the circumstances of a
personal nature led to the murder (Moutzouris, 2009). In the end, it was simpler to deal with
the LRP than it would have been the case had the diplomat murdered the employee.

In yet another interesting case, it was determined that an ambassador’s employee could enjoy
some protection under the Vienna Convention if she commits a crime during an important
event. Moutzouris (2009: 106) illustrates that “the ambassador’s cook cannot be arrested for
criminal charges on the day the ambassador is hosting an important dinner party”. In the
United States v Ruiz case, the ambassador’s servant was charged with the theft of personal
property. The court observed that the LRP would have been entitled to immunity had his
employer, the Peruvian ambassador, asserted it on behalf of the servant. Unfortunately, the
envoy did not defend the employee and the defendant was subsequently sentenced. When
tables are reversed, courts show reluctance in protecting the LRPs and often cite immunity as
a barrier. In one instance, a servant who had fled the home of a Malawian diplomat in the US
won a suit of one million dollars that was awarded after her employer had returned to the
capital (BBC, 2019). The best the US could do was suspending visas for Malawi diplomats’
domestic workers.

Nonetheless, the abuse of domestic workers by diplomats is a permanent fixture in the media.
Vandenberg & Bessell (2016) argue that trafficking of domestic workers by diplomats is not

30 The murder of the ambassador of Mali stationed in Belgium by a chauffeur in 1977 lifted the lid on the
abused relationship between diplomats and their servants. The Appeal Court in Brussels was faced with a
difficult task of determining “whether the murder of the ambassador of Mali by a chauffeur, who was a
member of the service staff, was an act performed in the course of his duties”.

33
a new phenomenon and is therefore a perennial problem. It is concerning that the ILO and its
constituencies have not done much to address the problem that continues to manifest in
almost all capital cities of the world. Even though the problem is known, the counts of
criminal prosecution remain worryingly low due to diplomatic immunity and reluctance by
states, see US v. Khobragade.31 Vandenberg & Bessell (2016: 603) observe that the arrest of
the Indian diplomat in the US was “an anomaly, not the rule” in a business involving states. It
is for the reason that in 2018 the Australian Council of Trade Union (ACTU), amongst
others, called for action by Canberra on labour abuse by diplomats. Similar demands have
been made in other parts of the world but without much success.

The US is a leading voice against human trafficking but the trafficking of domestic workers
by diplomats is purportedly happening in its backyard. For instance, petitions have been filed
by several groups with the Inter-American Commission On Human Rights Organisation of
American States (IACHR) where they “denounce the United States’ failure to exercise due
diligence to effectively prevent, punish and provide remedies for the harms caused by the
unlawful acts of their foreign diplomat employers…”, see SitiAisah& Others vs. United
States of America. These organisations have also written to the UN Human Rights Committee
to highlight the plight of domestic workers who are employed in homes of diplomats in the
US. Diplomatic immunity is cited as a barrier for effective remedies. The stories of domestic
workers in diplomats’ homes involving sexual abuse, slave labour and other forms
exploitation remain outside the realm of public knowledge as a result immunity and the
physical high walls shielding the envoys.

3.7. The indifferent attitudes of ILO member states to incidences of abuses by

foreign states and their diplomats

The countries are not only involved in labour abuses in their embassies abroad but they are
accomplices in the acts of wrongdoing involving foreign states and their diplomats. Elks
(2018) argue that “diplomats are normally protected from both criminal charges and civil
cases in the countries where they are posted under the rules of an international treaty.” The
VCDR and VCCR were discussed at length in the preceding chapters in how that protects
both embassies and diplomats for offences they commit, and how the receiving states are
obliged not to extend their laws in compliance thereto. The states’ complicit nature in

31 In 2013 American authorities arrested an Indian diplomat for making false representations and failure to
pay her employee in accordance with US minimum wage standards. The case caused a diplomatic ruction
between New Delhi and Washington. It attracted more interest of human rights organisations especially
after she had been afforded immunity. The US then requested the diplomat’s immediate departure from
America, but her lawyers opposed the indictment. Although the diplomat left the US, she remains a
fugitive who is subject to arrest should she return to the US. In 2020, The Week magazine reported the
diplomat was appointed India's ambassador to the Kingdom of Cambodia.

34
harassment and abuse of LRPs manifests in the unwillingness and or lack preparedness by
states to combat behaviour. States are neither willing to take responsibility nor to deal with
violations happening under watch.

According to the City of Tshwane webpage, Pretoria hosts the second largest number of
diplomatic missions in the world following Washington DC, the capital of the United States.
Predictably, South Africa deals with many types of scenarios which involve the violations of
employment rights of LRPs by states and international organisations. De Jager (2018) claims
that the legal disputes between the LRPs and diplomatic and consular missions pertaining to
labour matters including unfair dismissals for various reasons are quite common. The scope
of the local labour legislation, i.e. the LRA, is limited in obligating foreign embassies to
appear before courts. Should domestic courts forcibly extend their jurisdiction in this regard,
this would be in conflict with the immunity from the civil and administrative jurisdiction,
which diplomatic agents enjoy in terms of Article 31.1 of the VCDR. As a result, embassies
would easily invoke this clause to avoid participating in the legal proceedings. De Jager
(2018) states that the institution overseeing the labour dispute such as the CCMA could still
continue with proceedings in the absence of a diplomatic mission or its representative,
“although they will only issue an advisory award, which is non-binding and unenforceable in
terms of s 143(1) of the LRA”.

Since the decision is neither binding nor enforceable, the embassy is not required by law to
adhere to the ruling. The resultant outcome is that an aggrieved employee is left without an
enforceable remedy. This situation therefore implies that there is a legal vacuum and the
rights of a particular class of workers are not enforceable in exchange for diplomacy. In
recognition of this irregular situation, in 2011 the South African foreign ministry adopted the
Policy on the Management of Diplomatic Immunities and Privileges in the Republic of South
Africa which provides the guidelines on unfair dismissal disputes involving the LRPs
employed by foreign missions based in South Africa. To be fair, this policy is a non-starter
since it merely seeks to placate those who are employed at diplomatic missions and has no
powers to break down the walls of diplomatic immunity shielding embassies and diplomats.

De Jager (2018) who was the Principal State Law Adviser, attached to the Office of the Chief
State Law Adviser (International Law) in the foreign ministry, concedes that “it is
accordingly evident that being employed by foreign states and international organisations in
[South Africa] has inherent risks, which most locally recruited employees are not aware of
when accepting offers of employment at such institutions.”This view, however, is not
absolute. In 2019, the Irish Labour Court took a decision that was termed as “a significant

35
evolution in the law of sovereign immunity”, when it ruled that embassies may not claim
diplomatic immunity on workers’ rights (O’Brien, 2019). The unfair dismissal case involved
an LRP who had been employed an academic advisor working at the Kuwaiti Cultural Office
in Dublin. In spite of the Labour Court’s bold move, the high court reversed the ground-
breaking decision in 2021 when it ruled that the State of Kuwait could claim immunity
(Mulligan, 2021). The case showed that even judges are divided on labour violations by
diplomatic entities.

3.8. Conclusion

The two cases involving the governments of South Africa and the UK showed the ILO’s lack
of readiness and preparedness to take these countries head on for labour rights violations.
These countries escaped punishment due to the ill-preparedness of the ILO to deal with
violations by states of international labour standards in diplomatic contexts. On the other
hand, the Canadian case represents a gallant fight by domestic courts to challenge the notion
of diplomatic immunity. However, this case pushed the Irish government into a corner where
it had to prioritise its diplomat relations when asked to assist in both the South African and
Fogarty v The United Kingdom cases. Ireland, like most states, opts to rank diplomatic
immunity ahead of protection of labour rights. Even though states are sometimes willing to
waive immunity in certain exceptions, evidence suggests they prefer to overplay their power
against the vulnerable locally recruited personnel.

The Canadian case preceded the labour dispute involving the LRPs and the South African
embassy. Thus, the behaviour of the Irish government in the South African debacle drew
from the muddled Canadian case which involved domestic courts. It is probable that the
government’s indifferent response tacitly encouraged the Union of Retail, Bar and
Administrative Workers to approach the ILO instead of following the route of domestic
courts. It appears that governments prefer to pass the buck when it comes to labour law cases
involving diplomats, who are subjects of rigid treaties that govern relations between states.
Ireland is not alone but most, if not all, states prefer to uphold diplomatic immunity and thus
relegate international labour conventions in the process. As a result, the LRPs are not
accommodated under both domestic law and international law. Milligan (2018) refers to the
situation facing the LRPs as a “black hole” of diplomatic immunity, both figuratively and in
reality.

36
 4. Analysis and findings
4.1. Introduction

Garnett (2018: 28) points to “embassies and consulates arguably being the most sovereign
location of a foreign state in another country’s territory where matters of important and
sensitive national policy are considered”. That being the case, he adds that “disputes of
employment at such missions are difficult and controversial”. State policy on the other hand
is non-committal and reluctant to deal with breaches of labour rights by diplomats. It is clear
that the absence of political will to deal with the problems facing locally recruited personnel
employed by the representatives of states abroad is a major stumbling block. Moreover,
efforts within states to pierce the immunity have been mostly driven from the legal fraternity
and social sectors to no avail. Domestic laws are constrained by international treaties and
agreements between states that protect one another and their representatives from criminal
and civil prosecutions, even in instances where other people’s rights are violated.

This means labour offences in embassies and homes of diplomats are locked away in
immunity vaults, which prevent victims from accessing remedies for harm emanating
therefrom. Notwithstanding improved labour standards resultant from ILO instruments, the
implementation of international law, especially VCDR and VCCR clearly proves non-
coherence between these instruments. The immunity privilege continues being conferred to
diplomats perpetuating the challenge for workers to access justice. These complications point
to a need for an international labour standard that will compel states to protect different
classes of vulnerable workers, in this case the LRPs.

Therefore, there is an opportunity for the ILO to augment existing standards including
Conventions 87, 98 and 189 or even develop a new standard, which will protect the rights of
workers employed in diplomatic settings whether at residences or offices. Three key aspects
contribute to this injustice, the skewed approach to issues of state power versus individual
right; the seeming reluctance of ILO member states to engage in rectifying the unfair labour
relations in this space and finally lack of uniformity in foreign case laws’ response to
immunity issues. In addition, there are many other issues worth considering when dealing
with the complex space of international law and its intricacies. As such, the study covers a
broad spectrum of findings or observations with an intention of closing knowledge gap when
it comes to the unfamiliar world of diplomacy and its pitfalls.

37
The observations pertaining to labour rights for the LRPs and diplomatic immunity are
explained in detail through the following points with a view of triggering a debate primarily
within the ILO and different states regarding the vulnerability of the LRPs in diplomatic
missions. The long-term goal is to create awareness and to provide information about the
tensions that exist between the ILO conventions and diplomatic laws as they relate to
individuals that employed in the foreign offices of states.

4.2. Power of State versus Bargaining Power of an individual

One biggest challenge for the courts is that diplomatic missions have no legal personality
under the laws of the receiving state which is separate from that of the sending state. This
legal gap in international law means that the rights of LRPs are overshadowed by powerful
state relations. Restoring to the laws of the EU, the Maltese Industrial Tribunal (2020: 12)
attempted to close this gap by ruling that it had the jurisdiction “to deal with the merits of the
case so long as such merits do not enter into details of the embassy’s security policies,
security procedures, and security systems, since such policies, procedures, and systems are
considered by [it] to be matters of the employer state’s sovereignty”. Although this is an
important step in addressing the labour and employment problems confronting the LRPs,
there is still a long way in harmonising diplomatic law and international labour standards.

There is evidence that individual states tend to cling onto immunity when labour disputes in
their foreign missions arise. Without exception the US government involving a Maltese
national argued that it’s Foreign Sovereign Immunities Act of the United States Code
“establishes that when a foreign State enters into a commercial activity on US soil it loses its
right to claim sovereign immunity” (Maltese Industrial Tribunal, 2018: 3). State immunity
scholar Hazel Fox (2002: 383) reasons that the topic on what should be considered and or
excluded to under immunity is attributable only to a state’s own discretion. In this regard
states have deliberately foiled labour rights of LRPs under the pretext that they are protecting
their security and other interests.

If we are to consider the concept of “force majeure”, one can conclude such pretext is
implemented in considering these relationships. As observed from case no. no.384/19 of the
Industrial Court of Eswatini and in seeking to determine an unresolved labour dispute
between two former employees and the South African High Commission, an exparte trial was
granted to the applicants. In recognition that defendant is a foreign state, the court ruled that
the South African High Commission was protected by VDRC, and the order was therefore
revoked. The diplomatic mission also did not necessarily have to waive its right to immunity
from prosecution. The court’s decision is standard across all cases involving embassies and

38
LRPs across the world. This therefore means that the states are not only involved in labour
abuses in their missions abroad but they are accomplices in the acts of wrongdoing involving
foreign states and their diplomats. The ILO should be acting decisively in this regard since
these states are in violation of the labour standards.

4.3. Reluctance by ILO Member States to deal with unfair employment relations

Woolman (2011: 9) advises that French explorer Alexis de Tocqueville proclaimed some 170
years ago that “no one and especially 'no legislator can attack [the freedom of association]
without impairing the very foundations of society”. This expression uncovers the importance
with which freedom of association is regarded. Nonetheless, De Tocqueville’s statement
made over a century ago could be said to reflect contemporary circumstances on the ILO
member state’s response to freedom of association. Although this study concerns the
application of C.87 as it relates to the diplomatic missions and how this possibly impinges on
the rights of LRPs, the picture that is emerging is that in spite of progress made by the ILO in
improving international labour standards, the number of cases concerning freedom of
association considered by the CEACR does not abate.

As reflected in the ILO’s NORMLEX data on its webpage, the current active cases on
freedom of association remain high, that is, Africa 409, America 1908, Arab States 47, Asia-
Pacific 373 and Europe 673. These amount to a total of 3410. This does not bode well for an
institution praising its supervisory mechanism. Interestingly, despite clear evidence of the
violation of rights of LRPs, all these cases have no bearing on this cohort of workers. This
conclusion is informed by the fact that several attempts were made to search for such active
cases to no avail. A simple deduction of this state of affairs can be placed at the elevation of
diplomatic immunity over workers’ rights. Surely a new dispensation has to be developed to
give a special focus on these workers.

4.4. Lack of uniformity in approaches of courts

The absence of the guiding principles on the application of labour provisions in documents
framing the relations between the countries is a great concern considering the problems
confronting LRPs in diplomatic settings. Gogna, et.al. (2015) built a hypothetical case of the
domestic worker Lori from an undisclosed developing country who was employed by an
Ambassador from State X to work as a domestic worker in the Netherlands (receiving State).
This person suffered from ill-treatment in the hands of the envoy and his wife. For instance,
when the employee threatened to go to the police, she was also sexually abused by the
ambassador. Much of the existing literature is overly concentrated on the behaviour of
diplomats towards LRPs and not so much on how diplomatic law can do to protect these

39
workers. There is need to close the gap and place the rights of LRPs in the centrefold of
labour market governance at both multilateral and state levels.

Besides the LRPs employed directly in the households of diplomats, there is another category
of workers who have employment contracts with diplomatic embassies. Ordinarily, these
workers also face problems with lack of protection. For example, in the cases of disputes
these workers approach courts in receiving states without success. When this happens,
Gogna, et.al. (2015) argue it is likely that the diplomatic mission would invoke state
immunity. A case involving an LRP and the US Embassy in Malta in 2018 which followed
the employee’s unfair termination of employment exposed the limits in respect to the
jurisdiction of the Maltese courts (Employment Appeals Tribunal, 2018).

An analysis of foreign case law and statutes on sovereign immunity in employment disputes
has reflected lack of uniformity as different states jurisdictions respond diversely to these
cases. Brower (2015) observed such disputes in twenty-seven countries concluding there is
no single approach followed, and it is herein argued this lack of uniformity continues the anti-
worker status-quo. According to Brower (2015: 2), all but a single country retains the
restrictive theory of immunity in employment disputes. Some of these countries and two
international courts, which include Italy, Portugal, France, Finland, Switzerland as well as the
European Court of Human Rights (“ECHR”) and the European Court of Justice (“ECJ”) have
elevated the issue of “duties and status” as a determining factor to establish immunity, that is,
consideration of the nature of activities performed and their alignment to state duties. Even
in this situation, she adds that this is done on a case-to-case basis.

In countries such as Botswana, the Czech Republic, Spain, Austria, Poland, Colombia and
Argentina, the law does not recognise immunity for foreign states in employment disputes
involving dismissed embassy or consular employees because employment contracts are a
matter of private law (Browser, 2015). The complication, however, is that all the cases
involved low-level embassy or consular employees. To worsen the situation, Romania, South
Africa, and Pakistan as well as the UK belong to an elite group of states that “have
legislatively barred all claims relating to employment contracts by any member of an
embassy or consulate” (Browser, 2015: 2-3). Therefore, a theory of restrictive immunity is
applied which inadvertently renders it legislatively impossible for any jurisprudence
consideration of employment contract disputes.

40
4.5. Tentative international law and complications for the LRPs

The locally recruited personnel at diplomatic missions, like all employees, are workers who
ought to enjoy workers’ rights as infused through international labour standards. The
previous chapters illustrated a disturbing picture which exposed that these workers could be
in an unenviable position in as far as their recognition and entitlement to basic labour rights
are concerned. In terms of public international law arrangements, these employees are
strategically denied these rights by being refused freedom of association, a key right to
defending their very own existence as workers. Adding salt to the wound, the organisation
(ILO) established to defend their rights has, in cases it has observed to date, failed to exert
this right of representation. The ILO committees missed an opportunity to lay down the rule
when they considered the disputes involving the violation of worker rights by states via their
diplomatic missions. In the cases concerning the South African embassy in Ireland (2002)
and the UK embassy in Washington (2005), the ILO constituents passed the chance of
upholding the tenets of social justice by allowing a “no decision”.

The ILO and its constituents should have compelled both the UK and South Africa to respect
the international labour standards instead of shifting the problem to the diplomatic vacuum,
where the LRPs employment rights are conveniently dumped as a problem between states. As
to be expected, the states enjoy the present void. Furthermore, it is interesting that the CAS
failed to develop strong recommendations for the UK case since it happened immediately
after the South African case. This was probably to warn potential complainants that this was a
no-go area for them. Ever since 2006, no or fewer cases involving embassies are brought to
the ILO although the problem is not resolved. The ILO’s indeterminate position in the
matters concerning the LRPs and diplomatic missions could be encouraging triumphant
attitudes and indifference on the part of diplomatic envoys and their subordinates whose
impunity perpetuate the violations of workers’ rights.

Besides the lacklustre performance by the ILO, constituents and committees, another area of
concern is absolute diplomatic immunity that the diplomats seem to enjoy. Vark (2003: 110)
argues that “personal inviolability and diplomatic immunity from criminal jurisdiction still
remain among the most problematic issues in modern diplomatic law”. This is as a result of
the tensions that exist between the international law governing employment relations as well
as the treaties that regulate the relations between states. The problems of worker rights
violations in the diplomatic environment imply that international instruments do not enjoy
equal treatment, even by the states that conclude them. The international labour standards,
including C.87 which is the focus of this study, play second fiddle to both the VCDR and
VCCR.

41
The current system which appears to favour state relations, which is pronounced via the
VCDR and VCCR as well as prioritised over everything else, has led to a no-go-area for the
engagement of labour relations violations in diplomatic settings. Hiding behind these two
diplomatic instruments, states through their diplomatic missions deny the LRPs such things
as the right to representation and collective bargaining. This system makes a mockery of the
fundamentality of certain ILO conventions, which are grossly undermined in diplomatic
spaces. It can thus be argued that the adoption of the FPRW has dismally failed to promote
freedom of association in diplomatic missions and has left the LRPs extremely vulnerable.
Even the FPRW comes short in delivering its promise of providing protection for the
most vulnerable and securing the rights for all working people.

Gomes (2009: ii) is correct to point out that “the peculiarities of compliance with the
freedom-of-association principle represent a significant challenge to the ILO, especially when
a country lacks the political will to comply with the principle”. This statement holds
specifically true in all instances wherein the states are meant to enforce the fundamental
labour conventions in diplomatic missions located in their capitals. It is therefore regrettable
that the ILO Centenary Declaration for the Future of Work has had no effect on the evolution
of labour policies of states as regards to freedom of association in diplomatic settings. This is
despite submissions by NGOs and trade unions to the ILO, Human Rights Council and other
entities to demand social justice for employees of diplomats and embassies.

This grey area in international law has led to the development of individual ambassadorial
fiefdoms wherein employment relations are managed as directed by the mood of the head of
the mission. Ambassadors, not even jurisdiction, stand between prosecution of violators and
abuse of workers since they hold power of whether the diplomatic veil can be pierced on not.
This has raised concerns in the application of conflicting responses to challenges of
employment in these situations.

4.6. Jurisdiction and jurisprudence on employment matters

This study is premised on the unfair dismissal of an LRP by the South African Mission in
Geneva. Nkosi lodged an unfair dismissal case with the CCMA where she argued that her
employer not only violated the rule of natural justice of a fair hearing but it also prejudiced
her by not informing her of the reasons for the dismissal. Interestingly, in introducing the
jurisdiction issue, the applicant contended the dismissal was incompatible with the spirit of
the South African labour laws and the Constitution of the Republic. On the other hand, the
foreign ministry had originally sided with the head of mission where it supported the view
that Swiss law had jurisdiction instead of the South African labour laws. However, it changed

42
its stance when the CCMA condonation was granted, which, in essence, introduced the South
African jurisdiction on the matter. In trying to avoid the escalation, the ministry negotiated
the employee’s return to work but the ambassador challenged this decision.

In the main, the decision by the foreign ministry to reinstate the LRP prevented the law from
running full length. It would have been ideal for the courts to rule on the matter so as to
provide some clarity not only to jurisdiction but also to provide guidance on how to approach
disputes between diplomatic embassies and LRPs. This would have provided the necessary
case law for courts in other countries to approach labour violations from back-end rather than
exposing LRPs to diplomatic law. The Nkosi case would provide jurisprudence on how to
avoid the complexities of diplomatic immunity in that cases involving the LRPs would be
dealt with at the home country since anyone employed by the diplomatic mission is a public
servant for all intents and purposes.

Finally, the case between the ambassador and the foreign ministry exposed that diplomatic
missions are indeed fiefdoms where they do as they please. It is therefore unsurprising that
human rights violations at diplomatic missions and households continue unabated. Countries
are unable to control envoys who represent their governments overseas. Diplomats, on the
other hand, appear to know how to exploit this gap. They seem to overstretch the provisions
of diplomatic law by concealing violations through exercising immunity in the employment
relations.

4.7. Diplomatic employment and the freedom of association

The second case that this study focused on concerned the manner in which the South African
embassy in Ireland denied the LRPs the right be part of a trade union for the purposes of
collective bargaining. In this case as well as in the UK matter, the ILO illustrated lack of
preparedness to enforce C. 87 by allowing the countries to customise fundamental labour
rights. The two countries were not instructed to permit freedom of association and trade
unions (collective bargaining) in their diplomatic mission abroad. Again, an opportunity for
ground-breaking jurisprudence was forfeited. The indecisiveness by the ILO in this regard
possibly discourages workers and or their representatives from bringing cases to the ILO
committees (e.g. the CAS and CEACR) despite the growing evidence of labour rights
violations by embassies and diplomats.

The ILO implicitly or tacitly encouraged the South African government to establish pseudo
representative structures in the form of staff representative forums to bargain with the
workers in the place of fully-fledged trade unions or worker syndicates. The staff
representative forums are neither democratic nor independent as they are not freely

43
determined. Even more problematic, they are chaired by a representative of the employer and
this makes them a difficult platform for the LRPs to engage freely. This situation has left the
LRPs in an imprecise corner in relation to representation where they are left without access to
social justice. Furthermore, these structures do not possess the requisite expertise that could
be accrued from the trade union representation. The employer therefore plays a dual role of
both the referee and participant in the rules that favours it. The observation in this regard is
that employee rights are treated as secondary to the relationship between states.

Ambassadors understand that they sit in a comfortable position in an environment where

states detest upsetting one another. As such, they act in an unbecoming manner which is
autocratic and disrespectful towards workers. For example, the ambassador’s “divide and
rule” approach to managing the LRPs at the South African mission in Ireland drove the
majority of staff to joining a trade union. When she failed to acknowledge the representative
trade union, a complaint raised with the ILO elicited the standard “jurisdiction issue”. It was
only on realisation that the case has been deemed receivable at the ILO that a Department of
Labour team was dispatched to manage the situation. The objective was to avoid at all cost
the continuation of the case at the ILO. This resulted in an “agreement” that afforded the
trade union an advisory supporting role to the staff representative forum, and not “full” union
recognition. This has rendered the goals of achieving universal labour rights unachievable.

Diplomatic missions also do not prioritise labour peace and harmonious relations with the
LRPs as evidenced in how they are structured. The lack of labour law/ employment relations
expertise in diplomatic missions compounds the challenge of resolving employment relations
issues quickly. In most instances, reliance is premised on local labour law practitioners whose
views are dissonant of circumstances in the diplomatic missions and tend to base their advice
on established terms of reference which are management informed. Alternatively, advice is
requested from the officials located in the headquarters of foreign ministries who are usually
not even grounded on receiving state’s national laws. An easy common denominator in all
these processes is reliance on VCDR and VCCR as a key point of reference thus alienating
the real issue, that is, the application of international labour standards.

4.8. Multilateral and national responses to incidences of abuses by diplomatic

missions and their diplomats

Moutzouris (2009: 107) asserts that international law “does not offer unrestrained licence to
individuals with immunity”. There are several ways that those who abuse privileges and
immunities can be brought to book. These include the declaration of persona non grata,
waiver of immunity, handing the offender over for prosecution in the jurisdiction of the
sending state, reciprocity, breaking off diplomatic ties and settlement of disputes (Moutzouris

44
(2009). The punishment relates to general offences and there is no evidence that labour rights
violations by diplomatic missions and staff can cause a diplomatic meltdown between states.

Gogna, et.al. (2015) states that the United Nations Convention on Jurisdictional Immunities
of States and Their Property (UNCJIS) introduces the important dimension to the notion of
immunity. It codifies the principle of restrictive immunity. Also, Article 6 of the European
Convention on Human Rights (ECHR) limits states from granting foreign states and their
officials more immunity than required under international law. The UNCJIS specifies when a
state cannot invoke immunity for labour cases (Gogna, et.al., 2015). For example, Articles
11(2)(a) and 11(2)(b) of the convention distinguish between the tasks that are clerical or
administrative and those that are considered to be inherently sovereign activities.

There is a view that people who perform administration, clerical duties and maintenance as
well as guards and chauffeurs should not enjoy immunity since their roles have nothing with
the exercise of governmental authority. The UNCJIS focuses on diplomats but could help in
dissolving the rigidity that separates diplomats and the LRPs. In this regard, the convention
attempts to pierce the veil of diplomatic immunity which could be beneficial in dealing with
the persistent abuse of servants by diplomats. Garnett (2015: 797) argues that most LRPs
largely perform the work that may be indistinguishable from that performed in the private
sector; and continues to suggest that “it seems logical and appropriate that such persons be
treated in the same manner as non-government employees in terms of their rights of redress
against their employer, for example, for a severance entitlement or compensation arising from
a wrongful dismissal”.

The ILO has generally not been active in the matters concerning the state and diplomatic
immunity and employment rights. Evidence suggests that “while early decisions on mission
employment favoured absolute immunity, from the mid-1990s it appears that a shift towards
restrictive immunity may have occurred” (Garnett, 2015: 798). Individual states and domestic
courts are driving the current revolution and the custodian of labour rights, the ILO is not
involved. The ILO has not really reprimanded its member states for the non-stop violations of
labour standards by their diplomatic missions and representatives. Trade unions and NGOs,
for example, have spoken out against the breaches of fundamental human rights in embassies
and diplomats’ homes in Europe. A rapidly increasing body of studies show that domestic
workers working for diplomats incessantly experience the rights violations. These studies
also demonstrate that victims face difficulty in accessing justice and compensation from their
employers, and thus “leading to a situation of de facto impunity for rights violations”
(Karutsch & Rabe, 2012: 47).

45
Nonetheless, in 2011 the ILO adopted the Domestic Workers Convention (No. 189) which
deals with the rights of domestic workers, but the development of this standard omitted to
specifically include the domestic workers employed in diplomats’ households (Karutsch &
Rabe, 2011: 13). According to the CEACR Observation during the 102nd Session of the ILC
in 2013, in the UK, the Trade Union Congress (TUC) in collaboration with civic
organisations such as the Anti-Slavery International and Anti-Trafficking Monitoring Group
have alerted the ILO “to the heightened power imbalance between diplomatic domestic
workers and their employers due to the status of the employer and the diplomatic immunity
they are able to invoke, which makes domestic workers highly vulnerable to non-respect of
employment rights and abuse, including payment below the national minimum wage,
excessive working hours, psychological, physical and sexual abuse, withdrawal of passports
and prohibition to leave the house unaccompanied”. On observation, it does not appear that
the introduction of the Modern Slavery Act has helped to reduce the abuse and trafficking of
domestic workers in the UK’s diplomatic residences.

It is important, however, to note that states do not always evoke diplomatic immunity in
labour cases. In the labour relations matter which took place in 1996, for example, the US
waived its immunity to allow litigation proceedings to go ahead (Garnett, 2015). An Irish
citizen who was an employee of the US embassy in London was dismissed from her job. She
challenged the dismissal which she claimed had been the result of sexual discrimination
which subsequently resulted in the breaking down of the working relationship. She took the
matter to the industrial tribunal which upheld her complaint and awarded her GBP 12,000 in
compensation. When the case closed, the former employee applied unsuccessfully for two
posts at the US embassy. However, she approached the tribunal one more time with
allegations that her former employer was denying her employment due to her previous
successful claim. Unlike the previous case, the US (did not challenge the merits of the
accusation but) claimed immunity. Accordingly, the person was duly advised that she had no
remedy in domestic law.

In what was to become the first case before the European Court of Human Rights (ECtHR) in
2001, pan European court considered the interrelationship of national law rules of State
immunity and Article 6 of the ECHR in the employment context (Garnett, 2015: 786). In
Fogarty v The United Kingdom, the applicant challenged the United Kingdom’s decision of
granting the US immunity. She claimed that this decision had violated her right to access a
court to obtain redress. In its conclusion, the ECtHR noted the presence of sovereign
immunity which seeks to promote comity and good relations between states but it nonetheless

46
cautioned states against adopting absolute immunity (Garnett, 2015). Even with this
observation the laws on diplomatic immunity remain strong and virulent.

Nonetheless, the ECtHR decision, as well as provisions of other laws in Europe, to discard
absolute diplomatic immunity encouraged other jurisdictions to deal with employment cases
at diplomatic missions much more seriously. In 2013, according to Sefriani (2015: 978), an
Indonesian court “declared that the Brazilian Embassy and USA consulate were culpable
upon deposing one of their local employee without paying severance money as regulated by
Indonesian Labour Laws”. Furthermore, Rodgers (2019) observes that the outcome of labour
disputes in the European Court have been generally positive for applicants. Evidently, courts
are leading the efforts to dismantle the walls of immunity that protect the recalcitrant
diplomats and embassies.

In 2018, Belgium became the very first country to recognise collective agreements signed
between diplomatic missions and staff as long as they do not enjoy a privileged status under
the VCCR, the VCDR or any other applicable international treaty (Theeuwes & Lemeire,
2018). Also worth noting, the Organization for Security and Co-operation in Europe (OSCE,
2014) issued a recommendation which recognises the diplomatic domestic staff as a
vulnerable group that requires protection. This is a measure step in the right direction in terms
of providing explicit guidelines on the employment of diplomatic domestic staff to avoid
abuses. However, this study advances that there is a need for countries to promulgate
legislation and or to amend their labour laws to include the provisions for LRPs.

47
 5. Conclusions and recommendations
5.1. Introduction

Overall, this study makes a case for the separation of labour rights from the conservative
domain of state relations. This, as the importance of achieving social justice is even more
necessary considering the rise in labour market inequality and exclusion directly threatening
social justice. As Bronstein (2010:1) argued, rights “are not eternal realities that exist out of
space and time ‘but’ social phenomena considered in a particular historical context”. The
conclusions and recommendations in this study seek to contribute to the reinforcement of the
governance mechanisms earmarked to regulate international and national labour markets.
With the goal of social justice in mind, the study advocates for the labour rights of vulnerable
workers such as those employed in diplomatic environments.

5.2. Conclusions

Firstly, when it comes to labour rights, diplomatic missions and diplomats alike are generally
negligent and act with impunity inside the diplomatic veil. The study investigated whether the
staff management at the South African foreign missions is conducted in full compliance with
ILO labour standards and conventions, particularly C. 87. Noteworthy is the fact that in South
Africa freedom of association is constitutionally enshrined and part of the Bill of Rights. The
latter implores labour rights can never be excluded from being human rights and therefore
elements of indivisibility and interrelatedness remains key. It is disappointing that LRPs in
South African diplomatic missions abroad are not afforded these rights.

Secondly, the continued elevation of the diplomatic law above others, for example, C. 87 on
freedom of association and the effective recognition of the right to collective bargaining,
creates an impression of one treaty dislodging other treaties resulting in the contemptuous
disregard for international labour standards. As Alvarez (2019: 699) concluded, “human
rights values underlying labour rights are worth defending”. Labour rights are human rights
that are worth defending and are also important to dealing with some deficits that characterise
the employment relationship involving diplomatic missions and the LRPs.

Thirdly, clashes between international instruments put in place to promote labour rights and
to regulate state relations are responsible for the dire employment conditions of the LRPs in
diplomatic missions. Admittedly, tensions between the provisions of different treaties are not
limited to labour market issues and diplomacy. Smit & McCorquodale (2018) assert that the
fragmentation in international law arises for a number of reasons including the complexities
created by globalisation and the multiplicity of areas many entities within states deal with. It
is important to note that the tension between labour standards and diplomacy law is not an

48
exception. This therefore cannot be used as an excuse to abuse labour rights in diplomatic
spaces, and also the notion of immunity should have limitations to protect these rights.

Fourthly, the LRPs are workers covered by the protection provided by international labour
standards. As also concluded by Gericke (2014: 2606), there exist the need to “balance the
rights and privileges afforded to the parties within a diplomatic employment relationship”,
this as the purported principle of reciprocity clearly remains an illusion. As the ILO
Committee of Experts observed and concluded in the South African Ireland case, “it is not
about which law applies but whether rights have been violated”. The “force majeure”
consideration and approach by the domestic courts when it comes to the consideration of
immunity in employment relationships requires transformation. “Lifting the veil of
diplomatic immunity” will indeed provide a satisfactory interplay between labour law and
diplomatic law to support the interests of both parties within an extraordinary employment
relationship. In short, a paradigm shift is a necessity in this space.

Fifthly, the study stresses that the basis for cordial workplace relations is the application of
the contents of the ILO labour standards. Furthermore, it stressed that the essence of staff
performance and morale improvement is achieved through better management of workplace
support activities by putting primary emphasis on social dialogue which entails a process of
consultation and negotiation when revising. Allowing staff to join trade unions or syndicates
helps to promote the goals of labour peace and social justice as well as decent work since
employees can bargain without fear.

Sixthly, this study posits that the key aspects that can contribute towards the development of
an international instrument that can improve the plight of the LRPs in foreign missions
include awareness of the existence of C. 87 and the right to collective bargaining and to
organise. The summary of information regarding national policies targeting employees
gleaned from official records confirmed that South Africa is a signatory to C. 87. This makes
it obligatory for the country to implement the contents of the Convention. There is evidence
too, that the country has domesticated C. 87 to be part of its labour law infrastructure.
However, there are no specific staff conditions and regulations informed by these instruments
which were developed for locally recruited employees at South African foreign missions.

Finally, the study surmises that in a competent labour management and utilization
environment in foreign missions, both the employee and the employer must experience the
hallmarks of cordial workplace relationships such as freedom of association and the right to
organise, adherence to national labour legislative framework and observance of inter-state
diplomatic relations in labour law.

49
This study makes the following recommendations:

 Despite the absence of unionism, employees at the South African foreign mission
abroad acknowledge and point out the relevance of trade union activities as the
hallmark of staff management and utilisation in organisations. Thus, staff
representative forums should be replaced by trade unions to encourage freedom of
association and genuine collective bargaining.

 States need to deal with domestic silo mentality and develop departmental
coherence especially when it comes to employment relations matters. Synergies
between the ministries of foreign affairs and labour are key to improving the
conditions of employment for the LRPs.

 For the purposes of ensuring better employment relations at diplomatic missions,

states including South Africa, which as a signatory to the key ILO conventions that
it has purportedly domesticated, need to review and amend their laws to
incorporate provisions that speak specifically to the rights of the LRPs.

 South Africa and other governments should utilise the conclusions of this study to
minimise risks of precarious and unsafe employment among locally recruited
employees by facilitating their access to decent work while promoting inclusion,
equity, and reducing disparities at the workplace.

 South Africa and other states need to undertake specific actions to develop staff
conditions of employment for its foreign missions taking into account international
dictates and drive. This may be augmented with offering training to the officers to
be able to help reduce the incidences of labour rights violations by diplomats,
especially in the absence of harmonisation of labour laws and diplomatic
immunity.

50
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1998 ILO Declaration on the Fundamental Principles and Rights at Work

African Growth and Opportunity Act

Basic Conditions of Employment Act 75 of 1997

Constitution of the Republic of South Africa, 1996

Convention on the Privileges and Immunities of the United Nations (1946)

Declaration of Philadelphia, Act of 30 June 1948

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Africa

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57
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Vienna Convention on Consular Relations (1963)

Vienna Convention on Diplomatic Relations, (1961)

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Ministére Public and Republic of Mali v. Keita 1977 ILR 410

Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC)

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Cooperation and Another [2020] 2 BLLR 217 (LC)

SabeloCaiphusVilakati v South African High Commission [384/19] [2021] SZIC 156 (04
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United Kingdom of Great Britain and Northern Ireland (CEACR) (102nd ILC session,
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United States v. Khobragade, No. 1:14-cr-00176 (S.D.N.Y. Mar. 14, 2014)

58