Marlese von Broembsen

Marlese von Broembsen is a South African lawyer and academic specializing in labor law and development, transnational regulation of global value chains, and informal employment. Since October 2015, she has been the Law Programme Director of Women in Informal Employment: Globalizing and Organizing (WIEGO), a global network that aims to increase the voice, visibility and validity of the working poor, especially women. 

Prior to that, Marlese was a senior lecturer in the Faculty of Law of the University of Cape Town, where she launched a Master’s program in social justice. In 2018, she taught as an adjunct professor at Northeastern University in Boston. From August 2015 to December 2018, she was a Visiting Researcher at the Institute for Global Law and Policy at Harvard Law School.

Marlese holds a law degree from the University of Cape Town, a Master of Arts in development studies from the University of the Western Cape, and an LL.M. from Harvard Law School. After graduating in law, she first qualified as an attorney before engaging in grassroots work. She also engaged in consultancy work as a partner of South Consulting in respect of human rights and economic development in Southern and Eastern Africa. Marlese lives in Cape Town, South Africa.

Marlese von Broembsen was profiled by Odile Ammann, a postdoctoral researcher at the University of Zurich. You can read more about Odile’s work at the end of this profile.

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What pulled you towards international law/domestic human rights law as a career? And what were your first steps?

I live in one of the most unequal societies in the world, South Africa, and have always been concerned about structural poverty. I started studying languages at university, but after a few months I realised my course wasn’t satisfying and started attending law lectures. From the beginning I was hooked!

The country and context in which I was trained very much influenced the work I do today. I studied law in the closing years of apartheid, and I was taught by people on the left who were using the law to challenge the system. We did not yet have a constitution, and progressive law firms were mostly relying on administrative law to fight detention cases, for instance.

By the time I started working in a law firm, apartheid as a legal institution was over. The legacy of apartheid is of course still with us. On the advice of activist lawyers, I sought work with a big corporate firm because they argued I would get better training than at small firms, where burn-out was likely. In hindsight, I wish I had rather worked for one of the small firms that were engaging in work that I felt passionate about. Quickly, I moved out of this traditional law firm setting and into NGO work. I registered for a Master of Arts in development studies, while working for an organization that focused on informal workers. I spent four years working at the grassroots, which absolutely informed everything I did after that. 

I then started doing policy work in South Africa, and soon thereafter was invited to join a consultancy started by a fellow law student. We were four partners, two in Kenya and two in South Africa, and consulted on local economic development and human rights in Southern and Eastern Africa, mostly for governments or aid agencies. At the same time, my professor, who supervised my Master’s thesis, asked me to co-teach his course on social policy, which I did for a couple of years. My love for teaching was born! 

In 2007, I wrote the South Africa country report on business rights for the UNDP’s Commission for the Legal Empowerment of the Poor. Reading up on ‘legal empowerment of the poor’ I came across Stephen Golub’s work. He argued that we need a new generation of lawyers who are trained differently with interdisciplinary lenses, and who are able to work with communities in a way that is not top-down. After these four years of grassroots work, I intuitively understood what he meant. 

Based on these insights, in 2008, I approached the Dean of the Law Faculty of the University of Cape Town with the idea of convening an interdisciplinary Master’s program in social justice that would be open to law students and students in related fields. This experience has been one of the most fulfilling in my career so far. The students were from all over the world. I taught two courses: one focused on theory; and the other on practice. In the ‘social justice in practice’ course, students were paired with social movements and NGOs for six months. They kept a journal and had to do practical exercises. It was quite novel pedagogy for South African law faculties. The objective was to unlearn traditional lawyering approaches, value different forms of knowledge, and learn new ways of lawyering that were much more about empowering people, partnering organizations to co-strategize, and broadening the repertoire of legal techniques besides litigation. 

What would you say are the high points of your career to date?

One of the most meaningful aspects is when I learn that the students whom I had the privilege of teaching have gone and done extraordinary things. 

Another highlight is the work I do for WIEGO: part-movement building, part-research, part-think tank that supports organizations of informal workers, primarily women, across jurisdictional boundaries. These movements are fighting for inclusion in statistics, law, and policy, as well as for social protection. 

Nancy Fraser’s theory of justice as parity of participation really resonates with me. Fraser argues that both social and legal norms can ‘misrecognize’ people, the implication being that they don’t even have a seat at the table. This also applies to informal workers, who are mostly regulated in ways that are punitive.

The latest ILO statistics show that 61 per cent of the global workforce is informal. Informal workers include waged workers whose work does not enjoy legal and social protection (e.g. casual work, day laborers, work in supply chains, subcontracted work, work through a broker or intermediary), but also self-employed workers, such as street vendors and waste recyclers. 64 per cent of informal workers globally are self-employed. These workers need access to public space to vend or sell their services, or access to waste, or their homes serve as their places of work. In the case of street vendors, for example, despite often paying a range of taxes, they aren’t provided with any infrastructure.

What fascinates me is how informal workers who aren’t recognized by social and/or legal norms can use international law to be recognized as workers in their respective countries. One of the most satisfying moments in the context of my work for WIEGO was in Bulgaria. Bulgarian homeworkers, mostly women, work in complex garment and footwear supply chains for European brands, and they are paid one third of the Bulgarian minimum wage (0.53 Euros an hour). 

We supported the Bulgarian trade union of informal workers, UNITY, to use the International Labor Organization (ILO)’s reporting mechanism to report on their government’s lack of implementation of Convention No. 177 on Homework, which Bulgaria had ratified. 

On 31 August 2018, the Bulgarian Trade Union of Self-Employed and Informal Workers (UNITY) submitted a report to the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) on its government’s lack of implementation of Convention No. 177, which it had ratified in 2010. We wrote the report for UNITY, and UNITY submitted our research on homeworkers in Bulgaria. This had the following outcomes:

First, CITUB, the Confederation of Independent Trade Unions of Bulgaria, initially supported the government position, namely that homeworkers are independent contractors unless they have employment contracts. Once the ILO Committee asked CITUB to respond to UNITY’s report, CITUB changed its position to support UNITY’s argument that the legislation does not reflect the national agreement that was signed in November 2018. Second, the ILO Committee used UNITY’s report and WIEGO’s research as the basis for its comments and questions to the Bulgarian government. Third, prior to this process, the government (and the trade union confederation) were excluding UNITY from discussions, and they were ignoring UNITY’s arguments that homeworkers should be protected by the legislation (WIEGO’s contribution was to point out that the legislation that was amended post ratification of C177 fails to reflect C177). The ILO Committee’s comments and requests opened up a space for UNITY to participate in social dialogue with the government and with CITUB.

This example is a highlight for me because it illustrates how law can be used to recalibrate power relationships. It shows that international law can be used to shift power relationships at the national level until marginalized people have a seat at the table to negotiate. 

This is a first step, as what we ultimately want to achieve is that homeworkers are no longer exploited. It’s a very long road, of course. This kind of work takes years and requires being very patient and process-oriented: law is only as strong as the movements that can enforce it. Obviously, it also rides on the back of work that other colleagues have done over many years.

What are some of the challenges that you've had, and how have you tackled them?

As a young attorney in the early 1990s, I worked in a male-dominated profession. At the time, there was the assumption that men are good at certain work (e.g. commercial law), and that women are good at other work (e.g. family law). These stereotypes made it difficult to have the same range of choices or to get the kind of training from partners as male candidate attorneys. What helped me overcome this disadvantage, was being mentored by a group of women (very similar to ATLAS, actually!) working in the legal profession who met on a monthly basis. I was able to listen to how more senior women, some of them 10, 15, or 20 years older than I was, had navigated these barriers successfully. 

Another obstacle revolved around child-rearing. My husband and I shared household responsibilities, but when we had children, there was a societal expectation for the woman to be the primary caregiver. It was considered normal for women to take maternity leave or some extended time to take care of their children, or to restructure their work or working day to accommodate childcare. My husband, on the other hand, couldn’t take off any extended time, or opt to work part-time as I did, because he would have been subject to very serious career sanctions, with serious financial implications for us. As a result of the decisions we made, my career didn’t progress much during the first ten years of having children. I have no regrets. I just hope that if my daughter has children, norms would have shifted for her and her partner to have more options in terms of sharing childcare.

The upside was that when I started teaching the master’s program in social justice, I came with a lot of life experience and with something to give to younger women in their twenties who were trying to make meaningful choices in their work and life. I wasn’t at a stage where I wanted to focus on my own career and climb the academic ladder. 

A downside of the childrearing phase – and this is very common for women, I think – was losing some self-confidence. In my case, it took a while for me to regain confidence outside of the classroom. For example, I wasn’t used to public platforms anymore. Now I’m participating in panel discussions in the global context.

What motivated you to participate in these global panel discussions?

We’re the only membership-based organization in the world that is fighting for informal workers at the global level. Because of this, I feel that I’ve got to get over myself because given my job, I have a responsibility to contribute to shifting global discourses that render informal workers invisible or undermine their livelihoods. For example, the ILAW network, a group of labor lawyers that support trade unions and the rights and interests of workers more broadly, are chairing a panel at the Global Deal Conference on the UN Guiding Principles for Business and Human Rights, and they invited me to participate. The question the panel will discuss is how to define a ‘worker’. At WIEGO, we argue that the labor law definition must shift from the binary category of employee versus self-employed/independent contractor to a definition of worker that includes informal workers. 

I have realized that many people who are particularly skilled at public discourse have been trained how to present, how to answer difficult questions, etc. In the United States, high schools and graduate training emphasize public speaking. We lived in the States for 3.5 years and it was interesting to see the hands-on public speaking training my daughter got at school, compared to my son’s experience at a South African school.  My daughter was trained to feel comfortable to speak on her feet, how to disagree in a courteous way, how to direct a line of questioning. Like the British system, South African schools and universities place much more emphasis on writing than speaking, I think. My point is that we can learn to do these things. So what those of us who have not had the privilege of this kind of tutoring need to do is to get some of that training, and not make it a private struggle, or avoid engaging on public platforms.

What is your advice for those who are embarking on a career in public international law/domestic human rights, and especially for women?

I would like to say to any young lawyer who wants to work with marginalized people: get to know the people you want to serve as human beings, instead of seeing them just as your clients. In Dakar, Senegal, we invited ten lawyers to live and work with informal workers for two days and two nights. At the end, one of the informal workers commented: ‘we were up all night, talking about my life,’ and then he made this very powerful statement: ‘as a lawyer, if you want to help someone, you need to know this person as a human being.’

We need to be very conscious of the power relationships between lawyers and people who are socially and/or economically marginalized. We shouldn’t take the matter away from people and think we’re helping them. They need to own the legal strategy, and a legal strategy should only be part of a much larger strategy to bring about structural change. I had a matter once where we won a case, and the client said to me: ‘That’s not the outcome I wanted.’ It changed my life and made me interrogate who’s winning: me and my ego, or my client? 

A second piece of ‘advice’ – maybe more of an invitation – I could offer is that I found it important to think less about where I wanted to be and had to climb to but, instead, to ask myself: what is the small legacy I want to leave? What do I really feel strongly about? What is it that I really want to shift? What is the injustice I care deeply about? What are my values?

When these considerations guide your decision-making, it’s amazing to see the opportunities that come your way. When you encounter and connect with people who are fighting for the same kinds of things that you care about, they see in you another person who’s not in it for their own career, but for the people they’re serving – and it becomes a very collegial, rewarding space.

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Marlese von Broembsen was profiled by Odile Ammann, who is currently a postdoctoral researcher at the Law Institute of the University of Zurich, Switzerland. Odile received a bachelor’s degree and a master’s degree in law from the University of Fribourg, Switzerland, and an LL.M. from Harvard Law School. She holds a PhD in international law from the University of Fribourg. In her thesis, which was supervised by Professor Samantha Besson, Odile analyzed the methods and reasoning that domestic courts (and Swiss courts in particular) use to interpret international law. You can access some of Odile’s research here.