The measures imposed by the Belgian Government in response to the COVID-19 pandemic also affect foreign diplomatic missions, international organizations with headquarters or an office in Belgium, and their respective staff. However, the special status of these entities and persons must also be taken into consideration when applying the restrictive measures decided.
The Protocol Directorate of the Foreign Public Service Foreign Affairs has made some guidance available here. In this special issue of our newsletter, we highlight a few additional points of interest.
Applicability of domestic COVID-19 measures to foreign missions
In the information published on its website, the Protocol Directorate recalls the well-established principle laid down in Article 41(1) of the Vienna Convention on Diplomatic Relations: “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.” It is not sure, however, whether the Protocol Directorate considers that this principle warrants a full, unqualified application of Belgian COVID-19 measures to foreign diplomatic missions: the Protocol Directorate, indeed, simultaneously states that, given the circumstances, it is “advised”, in general, to observe the measures officially announced, which seems to mean that these measures are not (all) mandatory for foreign missions.
It is true that, as indicated in Article 41(1) of the Vienna Convention, the duty to respect the laws and regulations of the receiving State comes to an end where the privileges and immunities begin. Among the privileges and immunities recognized by the Vienna Convention, the freedom of movement and travel (Article 26) as well as the freedom of transit (Article 40), at the very least, have the potential of conflicting with the current restrictive measures in Belgium (see below), and therefore should prevail in case of an actual conflict. This is, in all likelihood, the reason why the Protocol Directorate remains relatively cautious despite the reference to Article 41(1) of the Vienna Convention.
Moreover, a quick survey of similar COVID-19 measures notified to foreign missions in a number of other countries, shows that the authorities of the receiving State generally refrain from asserting that these domestic measures would be mandatory as such, and rather declare that they “strongly recommend” them, “expect” foreign missions to follow them, and appreciate the “cooperation” of foreign missions.
Diplomatic missions as “essential services” under Belgian COVID-19 regulations
Under the Ministerial Decree of 23 March 2020 in its current version, teleworking from home is compulsory for “non-essential” companies, regardless of their size. With respect to functions for which teleworking is not possible, social distancing measures (especially a distance of 1.5m between individuals) must be implemented. If a non-essential company is unable to comply with those measures, it must shut down (Article 2 of the Decree).
Companies of “crucial sectors” as well as “essential services”, however, are exempt from the above regime: they must implement teleworking from home and rules of social distancing only “to the extent possible” (Article 3 of the Decree). The Annex to the Decree lists “diplomatic posts” among essential services.
Accordingly, diplomatic missions have, under Belgian regulations – and subject to privileges and immunities – to implement teleworking from home and rules of social distancing to the extent possible. Furthermore, they are not forced to close even if teleworking and social distancing are practically impossible.
Rules of social distancing apply not only between members of the mission but also for possible contacts between members of the mission and external people. For example, nationals of the sending State or Belgian nationals who would be coming to the mission for administrative reasons. Indeed, to the extent that the mission would not be in a position to offer its services remotely through electronic systems, individuals must be considered allowed to go to a diplomatic mission, under the Ministerial Decree, “in case of necessity and for urgent reasons”: the rule of confinement at home is not applicable in such circumstances, and going to/coming back from places that may remain open (including diplomatic missions) is explicitly mentioned in this respect (Article 8 of the Decree).
Restrictions on the freedom of movement of mission members
Confinement at home is the principle in current Belgian regulations. Nevertheless, to the extent that teleworking would not be possible, professional travel within Belgium is allowed for members of foreign missions, including commuting between their residence and the chancellery (Article 8 of the Decree).
In any event, Article 26 of the Vienna Convention provides that “the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.” The only limitation under Article 26 pertains to the laws and regulations of the receiving State “concerning zones entry into which is prohibited or regulated for reasons of national security” – which is not the case of a general confinement regime applicable on the entire national territory for public health reasons. Admittedly, a restrictive application of the freedom of movement has been tolerated in part of State practice, but at the utmost it could only be justified on the basis of reciprocity (Article 47(2)(a) of the Vienna Convention).
The freedom of movement, especially of diplomatic agents, can be key in order to perform the functions of a diplomatic mission, in particular the function of protecting the interests of nationals of the sending State as well as the function of ascertaining conditions and developments in the receiving State and reporting thereon to the sending State (Article 3(1)(b) and (d) of the Vienna Convention). The COVID-19 outbreak may actually render these functions even more important. As a result, Belgian authorities should not impede the movement and travel of members of foreign missions on its territory, where it proves necessary to perform diplomatic functions.
As recommended by the Protocol Directorate, all mission members should always carry documents that can legitimize the travel, primarily their diplomatic or special ID card and if possible a travel order or other appropriate official statement from the mission.
Local staff of diplomatic missions
Also for the local staff members, (i) a diplomatic mission must implement teleworking from home and rules of social distancing to the extent possible; (ii) it is not forced to close even if teleworking and social distancing are practically impossible; (iii) to the extent that teleworking would not be possible, professional travel within Belgium is allowed for local staff members, including commuting between their residence and the chancellery (Articles 2, 3 and 8 of the Decree); (iv) as recommended by the Protocol Directorate, all local staff members should always carry documents that can legitimize the travel, primarily their ID card or passport and if possible a travel order or other appropriate official statement from the mission.
If a diplomatic mission faces a reduction in the workload due to the COVID-19 outbreak, it can apply temporary unemployment to its local staff members. Public sector employees are eligible for the system of temporary unemployment, which has been eased temporarily in response to the COVID-19 epidemic. If a diplomatic mission has difficulties employing local staff members for reasons related to COVID-19, recourse may be had to the system of temporary unemployment due to force majeure. This includes situations where there is a lack of work for a local staff member or where a local staff member cannot come to work because of government-mandated quarantine (at home or abroad) or a flight ban (which has caused the staff member to be stranded abroad). Temporary unemployment does not need to be applied for all local staff members, it is possible to place certain staff members on temporary unemployment while continuing to employ certain other staff members. In addition, it is possible to alternate days of temporary unemployment with working days. It is , however, not possible to combine both in one day (e.g. having a staff member unemployed in the morning and working in the afternoon), unemployment must always be imposed for a full working day. Please note that, at the moment, the aforementioned rules on the application of temporary unemployment due to force majeure only apply for the duration of the measures imposed by the Belgian government.
A local staff member is subject to Belgian social security and therefore, if placed on temporary unemployment due to force majeure by reason of COVID-19, he/she is immediately entitled to an unemployment allowance at the cost of the Belgian National Employment Office or ONEM (Office National de l’Emploi). The unemployment allowance amounts to 70% of the average salary of the staff member, but this average salary is capped to € 2,754.76 gross per month (amount applicable for a fulltime staff member). On top of this, the staff member will receive a supplement of € 5.63 gross per day at the cost of the ONEM . These amounts are subject to payroll withholding tax (26.75%). Please note that, at the moment, the abovementioned rules on unemployment allowance for temporary employment only apply until 30 June 2020.
The application procedure for temporary unemployment due to force majeure for an employer, as well as the application procedure for an unemployment allowance for such temporary unemployment for a staff member have – temporarily – been significantly simplified in the context of the COVID-19 epidemic. Concrete instructions can be consulted on the website of the ONEM.
International Organizations
In headquarters agreements concluded by Belgium, a clause usually provides that the international organization concerned and its staff shall comply with Belgian laws and regulations. Normally it is not expressly specified that this is without prejudice to their privileges and immunities, but such a qualification is, arguably, implied by the very object and purpose of headquarters agreements, which is to lay down privileges and immunities in derogation from domestic laws and regulations.
Officials of international organizations, unless they enjoy diplomatic status (e.g. the chief administrative officer of the organization), are usually not conferred a freedom of movement and travel like members of diplomatic missions. Therefore, they are, in principle, supposed to abide by the Belgian confinement measures.
However, international organizations, like diplomatic missions, are categorized as “essential services” in the current Belgian COVID-19 regulations (Article 3 of the abovementioned Ministerial Decree and Annex). Accordingly, (i) they need to implement teleworking from home and rules of social distancing only to the extent possible; (ii) they are not forced to close even if teleworking and social distancing are practically impossible; (iii) to the extent that teleworking would not be possible, professional travel within Belgium is allowed for their staff members, including commuting between their residence and the headquarters or office of the organization (Articles 2, 3 and 8 of the Decree).
An international organization may be entitled to apply the system of temporary unemployment to its local staff members in Belgium. This depends, however, on the submission of the local staff members to the Belgian social security regime, and on the provisions of the headquarters agreements or similar applicable instrument.
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This does not constitute legal advice. If you have any question concerning the measures imposed by the Belgian Government in response to the COVID-19 pandemic, please feel free to contact us (bert.theeuwes@monardlaw.be).
